Law Commons^™

30 = 20: ‘Understanding’ Maximum Sentence Enhancements, Frank R. Herrmann S.J.

Frank R. Herrmann, S.J.

In this article, Professor Herrmann argues that the due process protections of a criminal trial should apply to aggravating factors that under current “maximum-enhancing statutes” allow judges to impose lengthier punishments in the sentencing phase. Part I considers the Supreme Court's rationale for refusing to apply full due process safeguards to all types of sentencing schemes. This background will reveal the unique quality of maximum-enhancing statutes and establish why the due process protections of a criminal trial should apply to sentencing under maximum-enhancing statutes. Part I, therefore, undertakes to explain courts' rationales to deny criminal defendants full criminal due process …

Follow The Evidence: Integrate Risk Assessment Into Sentencing, Steven Chanenson, Jordan Hyatt, Maerk Bergstrom

Steven L. Chanenson

No abstract provided.

Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson

All Faculty Scholarship

In this essay, Professor Robinson supports the current Israeli proposal for structuring judicial discretion in sentencing, in particular its reliance upon desert as the guiding principle for the distribution of punishment, its reliance upon benchmarks, or “starting-points,” to be adjusted in individual cases by reference to articulated mitigating and aggravating circumstances, and the proposal’s suggestion to use of an expert committee to draft the original guidelines.

Sorry Seems To Be The Hardest Word: The Fair Sentencing Act Of 2010, Crack, And Methamphetamine, Kyle Graham

University of Richmond Law Review

No abstract provided.

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

David C. Gray

How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

The Pitfalls Of Professionalized Prosecution: A Response To Josh Bowers's "Legal Guilt, Normative Innocence, And The Equitable Decision Not To Prosecute", Stephanos Bibas

All Faculty Scholarship

This short essay responds to Josh Bowers’ article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute. While most scholars focus on the most visible injustices in the most serious cases, Bowers rightly notes that this sliver of serious felonies is dwarfed by the mountain of minor, low-visibility misdemeanors and violations. Prosecutors are reasonably good at classifying crimes based on legal guilt and administrative criteria, but are far worse at weighing all the particulars and exercising equitable discretion. Our consistent faith in prosecutors’ expertise, Bowers argues, is not only misguided but backwards; we should value outsiders’ fresh …

The Pendulum In Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role For Binding Plea Agreements Post-Booker, Wes R. Porter

Publications

This article argues that in addition to the swing toward increased judicial discretion and overall lower sentences, the pendulum also can swing toward predictability and informed decision making for the defendant. The federal sentencing scheme must allow a defendant to pursue, negotiate, and contract for what the defendant believes is a uniform, proportional, and fair sentence. Increased use of binding plea agreements in federal court could complement the progressive developments following Booker and restore some predictability and informed decision making to federal sentencing. However, without significant rule, policy, and perception changes, like those proposed in Part VI of this article, …

The Eleventh Circuit's Selective Assault On Sentencing Discretion, Adam Shajnfeld

Adam Shajnfeld

Ever since the Supreme Court declared that the sentences which district courts impose on criminal defendants are to be reviewed on appeal for “unreasonableness,” the standard’s contours have remained elusive and mired in controversy, despite the Court’s repeated attempts at elucidation. In few instances is this confounding state of affairs more apparent and acute than in the Eleventh Circuit’s recent lengthy and factious en banc decision in United States v. Irey. This article explores Irey’s merits, mistakes, and lessons, trying to locate each within the broader context of the Eleventh Circuit’s sentencing jurisprudence. In doing so, the article advances three …

"Terror Among The Gum Trees" - Is Our Criminal Legal Framework Adequate To Curb The Peril Of Bushfire Arson In Australia, John L. Anderson

John L Anderson

No abstract provided.

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

Faculty Scholarship

How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so. More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the …

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Vanderbilt Law School Faculty Publications

Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary …

The Origins Of Back-End Sentencing In California: A Dispatch From The Archives, Sara Mayeux

Vanderbilt Law School Faculty Publications

In recent years, policy analysts have generated a small body of literature about the practice of "back-end sentencing," observing that California uses parole revocation in lieu of criminal prosecution for a surprisingly high number of cases, including many that would otherwise be considered serious crimes. Some of these offenders may be getting away with far shorter sentences than if their conduct were prosecuted criminally. Surely others are being railroaded into serving time for charges of which they could never be convicted beyond a reasonable doubt. And many are being cycled in and out of prison on fairly minor violations for …

Death Is Not So Different After All: Graham V. Florida And The Court's "Kids Are Different" Eighth Amendment Jurisprudence, Mary E. Berkheiser

Scholarly Works

In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles. Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time …

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

All Faculty Scholarship

This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no …

'The Mess We’Re In': Five Steps Towards The Transformation Of Prison Cultures, Lynn S. Branham

All Faculty Scholarship

Few dispute that conditions in prisons need to be improved – that, for example, prisoners with mental-health problems need to have those problems addressed, and addressed effectively, while they are confined. But the more fundamental question is whether prisons can be, not just improved, but transformed. Transformation in this context means deep and sustained changes in the ethos of those who work and live in prisons. That ethos would reflect at least four precepts: (1) hope as an imperative; (2) the viability of renewal; (3) the catharsis that attends personal responsibility and accountability; and (4) the duty and call, extending …

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

All Faculty Scholarship

How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Apprendi Land Becomes Bizarro World: Policy Nullification And Other Surreal Doctrines In The New Constitutional Law Of Sentencing, Benjamin Priester

Journal Publications

Imagine a final exam essay answer in constitutional law premised upon the following doctrinal principles: (i) identical findings of fact that produce identical effects on the outcome of a decision should sometimes be constitutional and should sometimes be unconstitutional based on formalistic doctrinal lines unrelated to the substantive merits of the issue being decided; (ii) decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings; (iii) appellate review of trial court decision-making is unconstitutional; and (iv) courts are entitled to substitute their own policy preferences for those enacted by the legislature on …

Cost Conscious Justice: The Case For Wholly-Informed Discretionary Sentencing In Kentucky, Emily M. Grant

Kentucky Law Journal

No abstract provided.

Federalism And Criminal Law: What The Feds Can Learn From The States, Rachel E. Barkow

Michigan Law Review

Criminal law enforcement in the United States is multijurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on how to handle the issue of law enforcement allocation is within the states themselves. …

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

Turning The Corner On Mass Incarceration?, David Cole

Georgetown Law Faculty Publications and Other Works

For the first time in forty years, the national incarceration rate is flattening out, even falling in state prisons. For the first time in three decades, the number of adults under any kind of correctional supervision—in prison or jail or on probation or parole—fell in 2009. At the same time, legal reforms that might have seemed impossible in prior years have increasingly been adopted, reducing penalties for certain crimes, eliminating mandatory sentencing for others, and increasing expenditures for reintegration of prisoners into society. And racial disparities, a persistent and deep-rooted problem in the American criminal justice system, after rising for …