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Articles 1 - 30 of 63
Full-Text Articles in Law
Considering Caretakers: An Explicit Argument For Downward Departures During Federal Sentencing Mitigation For Caretakers Of Children, Danielle Sparber Bukacheski
Considering Caretakers: An Explicit Argument For Downward Departures During Federal Sentencing Mitigation For Caretakers Of Children, Danielle Sparber Bukacheski
University of Miami Law Review
The sentencing stage of the federal legal system provides defendants with an opportunity to articulate why the sentencing judge is justified in imposing less severe sentences. Yet, under the Federal Sentencing Guidelines, sentencing judges have been restricted in the characteristics and background information that can be utilized when imposing a downward departure from the recommended Guidelines sentence. More specifically, there is great variability regarding the extent to which family-related circumstances can be utilized as justification for a downward departure due to the Sentencing Commission’s ambiguous language. Considering the damaging effects of incarceration on children when a caretaker is physically removed …
A Psa On The Csaa: How The Child Soldiers Accountability Act Should Guide The United States’ Approach To Criminalizing The Recruitment Of Minors Into Gangs, Chandler Marshall
A Psa On The Csaa: How The Child Soldiers Accountability Act Should Guide The United States’ Approach To Criminalizing The Recruitment Of Minors Into Gangs, Chandler Marshall
Washington and Lee Journal of Civil Rights and Social Justice
The use and recruitment of child soldiers in situations of armed conflict has been widely documented over the past century, discussed in the media and in academia, and condemned by prominent members of the international community. Beginning in the 20th century, international legal frameworks were developed to protect children in vulnerable communities across the globe and punish those responsible for their recruitment in regions of armed conflict. While the international community and the United States have taken great strides to protect children from recruitment and militarization, the United States lacks any effective domestic laws to protect vulnerable children on American …
Criminal Law—The Federal Sentencing Guidelines: Examining The Physical Restraint Sentencing Enhancement, Drew Curtis
Criminal Law—The Federal Sentencing Guidelines: Examining The Physical Restraint Sentencing Enhancement, Drew Curtis
University of Arkansas at Little Rock Law Review
No abstract provided.
United States V. Herman, Tyler Wilkerson
Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear
Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear
Elizabeth T Lear
Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin.
This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is …
An End To Arbitrary And Capricious Federal Sentencing Guidelines, Henry D. Stegner
An End To Arbitrary And Capricious Federal Sentencing Guidelines, Henry D. Stegner
Idaho Law Review
No abstract provided.
A (Nude) Picture Is Worth A Thousand Words — But How Many Dollars?: Using Copyright As A Metric For Harm In ‘Revenge Porn’ Cases, J. Remy Green
A (Nude) Picture Is Worth A Thousand Words — But How Many Dollars?: Using Copyright As A Metric For Harm In ‘Revenge Porn’ Cases, J. Remy Green
Faculty Scholarship
So-called “Revenge Porn” — pornography published without the subject’s permission — is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life. …
Punishing Property Offenders: Does Moral Correction Work?, Sharona Aharony-Goldenberg, Yael Wilchek-Aviad
Punishing Property Offenders: Does Moral Correction Work?, Sharona Aharony-Goldenberg, Yael Wilchek-Aviad
Touro Law Review
No abstract provided.
In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch
In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch
Articles & Chapters
This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.
Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to …
The Wisdom And Morality Of Present-Day Criminal Sentencing, Joshua Dressler
The Wisdom And Morality Of Present-Day Criminal Sentencing, Joshua Dressler
Akron Law Review
This lecture was delivered at the University of Akron School of Law on April 1, 2004...Today I want to talk about criminal sentencing and its connection, or I fear lack of connection, to basic principles of punishment that are supposed to make our system rational and morally just. Let’s keep in mind that, everyday, in courts all over the country, judges are sentencing persons to prison. They are doing that in our name. Punishment— sentencing people to prison—involves intentionally inflicting pain on persons by denying them liberty, which we all value, and separating them from their community. Certainly, we need …
Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level With Michael Heise, Frank O. Bowman Iii, Michael Heise
Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level With Michael Heise, Frank O. Bowman Iii, Michael Heise
Michael Heise
This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.
I Expected It To Happen/I Knew He'd Lost Control: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin
I Expected It To Happen/I Knew He'd Lost Control: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin
Articles & Chapters
The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.
My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of …
Double Jeopardy, The Federal Sentencing Guidelines, And The Subsequent-Prosecution Dilemma, Elizabeth T. Lear
Double Jeopardy, The Federal Sentencing Guidelines, And The Subsequent-Prosecution Dilemma, Elizabeth T. Lear
Elizabeth T Lear
The choice to embrace a real-offense regime probably constitutes the single most controversial decision made by the Federal Sentencing Commission in drafting the Federal Sentencing Guidelines ("Guidelines"). Real-offense sentencing bases punishment on a defendant's actual conduct as opposed to the offense of conviction. The Guidelines sweep a variety of factors into the sentencing inquiry, including criminal offenses for which no conviction has been obtained. Under the Guidelines, therefore, prosecutorial charging decisions and even verdicts of acquittal after jury trial may have little impact at sentencing.
Long before the adoption of the Guidelines, courts bent on rationalizing the real-offense regime devised …
Sentence Appeals In England: Promoting Consistent Sentencing Through Robust Appellate Review, Briana Lynn Rosenbaum
Sentence Appeals In England: Promoting Consistent Sentencing Through Robust Appellate Review, Briana Lynn Rosenbaum
The Journal of Appellate Practice and Process
No abstract provided.
Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman
Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman
Touro Law Review
No abstract provided.
When "Reasonableness" Is Not So Reasonable: The Need To Restore Clarity To The Appellate Review Of Federal Sentencing Decisions After Rita, Gall, And Kimbrough, Craig D. Rust
Touro Law Review
No abstract provided.
Editor's Observations: It's Alive! The Federal Booker-Fix Debate Sirs, Frank O. Bowman Iii
Editor's Observations: It's Alive! The Federal Booker-Fix Debate Sirs, Frank O. Bowman Iii
Faculty Publications
Seven years have passed since Justice Ginsburg do-si-doed from the merits majority to the remedial majority in Booker and transformed the Federal Sentencing Guidelines into an advisory system.' And despite the logical absurdity of the Scalian Sixth Amendment doctrine that produced this outcome,' and despite the expectation of folks like me that this marriage of fish and fowl could not long survive, it survives. What is more, a great many people whose opinion matters now claim to love it-or at least to like it well enough to want to keep it for the foreseeable future. Thus, the outburst of legislative …
Getting Time For An Acquitted Crime: The Unconstitutional Use Of Acquitted Conduct At Sentencing And New York's Call For Change, Megan Sterback
Getting Time For An Acquitted Crime: The Unconstitutional Use Of Acquitted Conduct At Sentencing And New York's Call For Change, Megan Sterback
Touro Law Review
No abstract provided.
Communicating Substance, Jelani Jefferson Exum
Communicating Substance, Jelani Jefferson Exum
Faculty Publications
(Excerpt)
Now that the Federal Sentencing Guidelines are advisory, the U.S. Sentencing Commission has more responsibility than ever to convince sentencing judges of the legitimacy of the Guidelines’ advice. During their mandatory period, the Guidelines enjoyed a captive set of followers—district judges who had limited choices for departing from the applicable Guidelines ranges, even when those judges were unhappy with the sentencing options before them. However, given the freedom that comes with the Guidelines’ current advisory form, sentencing judges are increasingly departing from the applicable Guidelines ranges. Although district judges still are required to calculate and consider the Sentencing Guidelines …
Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii
Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii
Faculty Publications
This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of …
The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical Justice, Evangeline A. Zimmerman
The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical Justice, Evangeline A. Zimmerman
University of Michigan Journal of Law Reform
In 1984 the Sentencing Reform Act was passed, ending fully discretionary sentencing by judges and allowing for the creation of the Federal Sentencing Guidelines ("FSG" or "Guidelines"). This Note proposes that the Guidelines failed not only because they ran afoul of the Sixth Amendment, as determined by the Supreme Court in 2005, but also because they lacked a clear underlying purpose, had a misplaced trust in uniformity, and were born of political compromise. Moreover, the effect of the FSG was to blindly shunt discretionary decisions from judges, who are supposed to be neutral parties, to prosecutors, who are necessarily partisan. …
Making The Punishment Fit The (Computer) Crime: Rebooting Notions Of Possession For The Federal Sentencing Of Child Pornography Offenses, Jelani Jefferson Exum
Making The Punishment Fit The (Computer) Crime: Rebooting Notions Of Possession For The Federal Sentencing Of Child Pornography Offenses, Jelani Jefferson Exum
Richmond Journal of Law & Technology
Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has a problem, as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion—computers and the Internet—and their role in changing the realities of child pornography possession. This Article argues that computers and the Internet are …
A Call For Judicial Scrutiny: How Increased Judicial Discretion Has Led To Disparity And Unpredictability In Federal Sentencings For Child Pornography, Loren Rigsby
Seattle University Law Review
The United States Sentencing Commission (USSC) has made child pornography related crimes among the most harshly punishable federal offenses. Nevertheless, sentencing judges have regained the right to depart from the recommended Federal Sentencing Guidelines (Guidelines). The Guideline range for child pornography reflects sound and clear congressional intent to impose harsh penalties on defendants to deter, and ultimately eliminate, the market for child pornography. For this reason, this Comment argues that sentences that fall outside the Guidelines range should be reviewed with much greater scrutiny and should not be used solely to reflect a judge’s view that the advised sentence is …
Making The Punishment Fit The (Computer) Crime: Rebooting Notions Of Possession For The Federal Sentencing Of Child Pornography Offenses, Jelani Jefferson Exum
Making The Punishment Fit The (Computer) Crime: Rebooting Notions Of Possession For The Federal Sentencing Of Child Pornography Offenses, Jelani Jefferson Exum
Faculty Publications
(Excerpt)
Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has a problem, as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion—computers and the Internet—and their role in changing the realities of child pornography possession. This Article argues that computers and the Internet …
Why March To A Uniform Beat? Adding Honesty And Proportionality To The Tune Of Federal Sentencing, Jelani Jefferson Exum
Why March To A Uniform Beat? Adding Honesty And Proportionality To The Tune Of Federal Sentencing, Jelani Jefferson Exum
Faculty Publications
(Excerpt)
This Article fills a gap in current scholarship concerning the Federal Sentencing Guidelines ("Guidelines") by bringing together many sentencing concerns and refocusing them on the Guidelines themselves. Since United States v. Booker, in which the Supreme Court demoted the Guidelines from mandatory to advisory status and imposed reasonableness as the appellate standard of review, several scholars have written about the new, advisory Guidelines scheme. Some have focused on the constitutional problems that Booker failed to settle. Others have argued against a presumption of reasonableness for within-Guidelines sentences. For some scholars, the biggest issues with the advisory Guidelines regime …
Defending Demaree: The Ex Post Facto Clause's Lack Of Control Over The Federal Sentencing Guidelines After Booker, Daniel M. Levy
Defending Demaree: The Ex Post Facto Clause's Lack Of Control Over The Federal Sentencing Guidelines After Booker, Daniel M. Levy
Fordham Law Review
In 2005, the U.S. Supreme Court held that the Federal Sentencing Guidelines violated a defendant’s Sixth Amendment right to a jury trial because they allowed a judge to depart from a mandatory range based on facts not presented to a jury. As a solution, the Court modified the Guidelines to be “advisory,” yet curiously held that sentences were still subject to appellate review for reasonableness. Given this tension, U.S. courts of appeals are split on whether the Guidelines are “laws,” subject to the Ex Post Facto Clause of the U.S. Constitution. This Note argues that the Guidelines are advisory, given …
Judicial Fact-Finding At Sentencing, Stephanos Bibas
Judicial Fact-Finding At Sentencing, Stephanos Bibas
All Faculty Scholarship
This encyclopedia entry summarizes the pendulum-swings that led the Supreme Court in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker to limit judges' ability to find facts at sentencing. Paradoxically, the much-criticized Federal Sentencing Guidelines have survived; a line of cases that began as an effort to restore juries' role has turned into a guarantor of judicial discretion; and the doctrine has quickly moved far from its Sixth Amendment roots to a policy balancing test. The Court could instead have pursued a different, more fruitful path. The Court did not have to force sentencing factors into …
Sentencing High-Loss Corporate Insider Frauds After Booker, Frank O. Bowman Iii
Sentencing High-Loss Corporate Insider Frauds After Booker, Frank O. Bowman Iii
Faculty Publications
The Federal Sentencing Guidelines have for some years prescribed substantial sentences for high-level corporate officials convicted of large frauds. Guidelines sentences for offenders of this type moved higher in 2001 with the passage of the Economic Crime Package amendments to the Guidelines, and higher still in the wake of the Sarbanes-Oxley Act of 2002. Today, any corporate insider convicted of even a moderately high-loss fraud is facing a guideline range measured in decades, or perhaps even mandatory life imprisonment. Successful sentencing advocacy on behalf of such defendants requires convincing the court to impose a sentence outside (in many cases, far …
A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham
A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham
St. Mary's Law Journal
The Fifth Circuit’s failure to require the uncharged conduct to have a meaningful relationship with the conduct of conviction is flawed. An amendment of section 5K2.21 specifically approved the consideration of uncharged or dismissed offenses to serve as a basis for an upward departure to reflect the actual seriousness of the offense. Confusion amongst federal circuit courts of appeal arose as to whether such conduct included uncharged or dismissed criminal offenses. Interpreting the amendment’s language has caused a circuit split. The Fifth Circuit erroneously interpreted section 5K2.21 as to require nothing more than a “remote connection” between the uncharged crime …
The More Things Change: A Psychological Case Against Allowing The Federal Sentencing Guidelines To Stay The Same In Light Of Gall, Kimbrough, And New Understandings Of Reasonableness Review, Jelani Jefferson Exum
The More Things Change: A Psychological Case Against Allowing The Federal Sentencing Guidelines To Stay The Same In Light Of Gall, Kimbrough, And New Understandings Of Reasonableness Review, Jelani Jefferson Exum
Faculty Publications
(Excerpt)
In December 2007, through two decisions, the Supreme Court sought to clean up the confusion that it created just shy of three years earlier when it rendered the Federal Sentencing Guidelines advisory in United States v. Booker and called for circuit courts to begin reviewing sentences for "unreasonableness." In one of those December decisions, Gall v. United States, the Court clarified what it meant by reasonableness review and explained that such review had both a procedural and substantive component. In the other decision, Kimbrough v. United States, the Court gave more meaning to the substantive component, …