Law Commons^™

The Twenty-First Century Death Penalty And Paths Forward, Jeffrey Omar Usman

Mississippi College Law Review

Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States. Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration. While not abolished, in many states application of the death penalty is grinding or has ground to a halt. If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age …

Worthless Checks? Clemency, Compassionate Release, And The Finality Of Life Without Parole, Daniel Pascoe

Northwestern University Law Review

Life without parole (LWOP) sentences are politically popular in the United States because, on their face, they claim to hold prisoners incarcerated until they die, with zero prospect of release via the regularized channel of parole. However, this view is procedurally shortsighted. After parole there is generally another remedial option for lessening or abrogating punishment: executive clemency via pardons and commutations. Increasingly, U.S. legal jurisdictions also provide for the possibility of compassionate release for lifers, usually granted by a parole board.

On paper, pardon, commutation, and compassionate release are thus direct challenges to the claim that an LWOP sentence will …

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

UMKC Law Review

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

Long History Of Leniency? A Call For A Georgia Statutory Mitigation Factor For Veterans With Post-Traumatic Stress Disorder, Jonathan Fagundes

Georgia Law Review

In Georgia, criminal sentencing marks a critical period for convicted defendants. As the final moment before the superior court fashions a punishment, the defendant faces a pivotal opportunity to introduce mitigating evidence, including evidence of mental health challenges, life circumstances, and other facts. Where such evidence is offered, the superior court can properly issue a sentence that aligns with the purposes of punishment or other state policies. But some populations, especially veterans convicted of nonviolent offenses, are exposed to unique stressors that likely affect their culpability. The existing sentencing regime, however, does not guarantee that this mitigating evidence will even …

Examining Remorse In Attributions Of Focal Concerns During Sentencing: A Study Of Probation Officers, Colleen M. Berryessa

International Journal on Responsibility

This research, using interviews with probation officers in the United States (n = 151) and a constant comparative method for analysis, draws from the focal concerns framework to qualitatively model a process by which probation officers use a defendant’s remorse to attribute focal concerns in order to guide their sentencing recommendations in pre-sentencing reports. The model suggests that officers use expressions of remorse to make attributions about mitigated criminal intention (blameworthiness and notions of responsibility), reduced dangerousness and a high potential for reform (community protection), and organization-level effects for increasing caseload efficiency and using correctional resources (practical effects of …

Why Judges Should Use 18 U.S.C. § 3553 To Assess Prison Sentences Qualitatively In The Context Of Collateral Relief, Luke Doughty

Indiana Journal of Law and Social Equality

No abstract provided.

“Take The Motherless Children Off The Street”: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo

University of Miami Law Review

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome dis- order (“FASD”) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. In this Article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss the impact of FASD on the …

Severe Mental Illness And The Death Penalty: A Menu Of Legislative Options, Richard J. Bonnie

Washington and Lee Journal of Civil Rights and Social Justice

In 2003, the American Bar Association established a Task Force on Mental Disability and the Death Penalty to further specify and implement the Supreme Court’s ruling banning execution of persons with intellectual disability and to consider an analogous ban against imposing the death penalty on defendants with severe mental disorders. The Task Force established formal links with the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness and the final report was approved by the ABA and the participating organizations in 2005 and 2006. This brief article focuses primarily on diminished responsibility at the time …

Does The Death Penalty Still Matter: Reflections Of A Death Row Lawyer, David I. Bruck

Washington and Lee Journal of Civil Rights and Social Justice

This talk was given by Professor David Bruck for the Frances Lewis Law Center at Washington and Lee University School of Law, April, 2002. It is a follow-up to “Does the Death Penalty Matter?,” given by Professor Bruck as the 1990 Ralph E. Shikes Lecture at Harvard Law School.

Historicizing The War(S) On Drugs Across National (And Disciplanary) Borders, Sara Mayeux

Vanderbilt Law School Faculty Publications

Notwithstanding the title, The War on Drugs: A History, this illuminating book is not "a" history of "the" War on Drugs but an edited collection with a sampling of new research into the intertwined histories of drug regulation and criminalization, deregulation and decriminalization, both in the United States and around the world. To use the parlance of Jotwell, I like this book a lot.

But I am also writing this Jot because I worry that the title may mislead legal scholars into thinking that this is only a book for historians of criminal law or scholars of the "carceral state." …

No Sense Of Decency, Kathryn E. Miller

Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

A First Step Back In Time?, Blake Jacobs

West Virginia Law Review

This Note discusses the implications of the United States Supreme Court’s holding in Concepcion v. United States, which left open whether district courts must reanalyze the 18 U.S.C.A. § 3553(a) factors when ruling on a motion to reduce a defendant’s sentence under the First Step Act. The decision settled a dispute between the First, Fifth, Ninth, and Eleventh Circuits, which did not require sentencing courts to consider intervening factual or legal developments; and the Second, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits which did. However, the Supreme Court’s decision only obligates a district court to consider intervening …

The Effects Of Gender Stereotypes And Types Of Crime On Perceptions Of Responsibility, Sentencing Severity, And Likelihood Of Recidivism, Spencer Hagenbuch

CMC Senior Theses

Past research has produced mixed findings regarding the roles of gender stereotypes in criminal sentencing. Usually, women receive preferential treatment; however, studies have shown that women receive harsher sentencing than men under certain circumstances. In light of these findings, we argued that the Chivalry and Paternalism thesis shows how women are exempted from harsh punishment when their crimes align with negative gender stereotypes, resulting in lenient treatment most of the time. Additionally, we argued that women receive harsher sentencing when their crimes violate positive gender stereotypes while men receive harsher sentencing when their crimes 1) violate positive gender stereotypes or …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95 percent of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors – who control plea terms – as the decider of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, state and federal …

“Progressive” Prosecutors And “Proper” Punishments, Benjamin Levin

Scholarship@WashULaw

After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform. That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.” Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.” In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor. Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions …

The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz

St. John's Law Review

(Excerpt)

Prosecutors are widely considered to be the most powerful actors in the criminal justice system. And federal prosecutors are particularly feared. While some recent scholarship casts doubt on the power of prosecutors, the prevailing wisdom is that prosecutors run the show, with judges falling in line and doing as prosecutors recommend.

This Article does not challenge the proposition that prosecutors are indeed quite powerful, particularly with respect to sentencing. There are many structural advantages built into the system that combine to give prosecutors enormous influence over sentences. For example, prosecutors have considerable power to bring a slew of charges …

Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck

Scholarly Articles

The core question raised by this case is whether a federal prisoner serving an unconstitutional sentence can be foreclosed from post-conviction habeas relief by the gatekeeping provisions of § 2255. The Constitution answers that question in the negative through the Suspension Clause. “[F]reedom from unlawful restraint [i]s a fundamental precept of liberty,” and the writ of habeas corpus “a vital instrument to secure that freedom.” Boumediene, 553 U.S. at 739. The importance of the common law writ was such that the Framers specified that it could be suspended only in the most exigent circumstances. U.S. Const. art. I, § …

A (Partial And Principled) Defense Of Sentences Of Life Imprisonment, Mirko Bagaric, Jennifer Svilar

Cleveland State Law Review

There has been more than a five-fold increase in the number of life sentences in the United States over the past four decades. One in seven prisoners in the United States is serving a life (or virtual) life sentence. This amounts to over 200,000 prisoners. The increase has occurred against the backdrop of near universal condemnation by scholars and public policy advocates – many of whom are now advocating for the abolition of life sentences. Arguments that life sentences are not an effective deterrent or means of protecting the community have some merit. Yet, we argue that in a limited …

Modern Sentencing Mitigation, John B. Meixner Jr.

Northwestern University Law Review

Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively …

Minimum Sentences, Maximum Suffering: A Proposal To Reform Mandatory Minimum Sentencing, Jordan Ramsey

Helm's School of Government Conference - American Revival: Citizenship & Virtue

This paper offers several proposals to reform mandatory minimum sentencing laws and asks how we can best uphold Freedom and the Rule of Law within sentencing law.

Examining Legal Financial Obligations In Washington State, Bryan Lewis

PPPA Paper Prize

After criminal offenders are convicted of a crime, they must return to the court where a judge will determine their sentence. Sentencing often includes jail time, but it always includes monetary penalties, or Legal Financial Obligations (LFOs). There are many reasons these penalties are given, from restitution for the victims of criminal offenses, to providing government revenue and funding the court, to punishment for the offender. However, these fines, and the interest rates that come with them, often leave offenders with an enormous amount of debt. There are a lot of interests at stake when it comes to LFO sentencing …

Drug Supervision, Jacob Schuman

Journal Articles

Critics of harsh drug sentencing laws in the United States typically focus on long prison sentences. But the American criminal justice system also inflicts a significant volume of drug-related punishment through community supervision (probation, parole, and supervised release). Over one million people are under supervision due to a drug conviction, and drug activity is among the most common reasons for violations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I analyze the federal system of supervised release as a form of drug policy. Congress created supervised release …

Modern Sentencing Mitigation, John B. Meixner Jr.

Scholarly Works

Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively …

Criminal Justice Expertise, Benjamin Levin

Scholarship@WashULaw

For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions; and (2) the democratic, which treats criminal policy as insufficiently responsive …

A Call To Dismantle Systemic Racism In Criminal Legal Systems, Cynthia J. Najdowski, Margaret C. Stevenson

Psychology Faculty Scholarship

Objectives: In October 2021, APA passed a resolution addressing ways psychologists could work to dismantle systemic racism in criminal legal systems. The present report, developed to inform APA’s policy resolution, details the scope of the problem and offers recommendations for policy and psychologists to address the issue by advancing related science and practice. Specifically, it acknowledges the roots of modern-day racial and ethnic disparities in rates of criminalization and punishment for people of color as compared to White people. Next, the report reviews existing theory and research that helps explain the underlying psychological mechanisms driving racial and ethnic disparities …

Semmy Lasco Kavinga V The People Appeal No 51/2018 (21 August 2019), O'Brien Kaaba

SAIPAR Case Review

The law on sentencing in Zambia is to a great extent chaotic and in disarray. No clear standards are set by the superior courts to guide lower courts and litigants. Often the sentences are at variance with constitutional norms and there has been no sustained effort to align the law of sentencing with constitutional standards, save for a few cases concerning corporal punishment. Somehow, a judicial culture has evolved and continues to grow of sentencing people without regard for constitutional norms. Yet the constitution is the supreme law, the ultimate source of all law and ought to permeate all laws …

Sentencing By Ambush: An Insider's Perspective On Plea Bargaining Reform, Justice Michael P. Donnelly

Akron Law Review

The vast majority of cases in our state criminal justice system are resolved not by proceeding to trial but through negotiated plea agreements. These are contracts between the government and the accused in which both sides are negotiating for some form of benefit in the ultimate resolution. In this article, Justice Donnelly exposes what he sees as a flaw in the system in the manner in which trial court judges oversee this process of negotiation. In a significant number of cases, the state induces defendants to enter into a guilty plea with no certain sentence, amounting to an illusory agreement …

After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne

All Faculty Scholarship

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive …

Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baughman, Christopher Robertson

Utah Law Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman

Northwestern Journal of Law & Social Policy

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …