Law Commons^™

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …

Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford

UF Law Faculty Publications

In the Supreme Court's latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.”

This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker, …

Humane Punishment For Seriously Disordered Offenders: Sentencing Departures And Judicial Control Over Conditions Of Confinement, E. Lea Johnston

UF Law Faculty Publications

At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison. In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing. In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement. Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison. This Article …

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

UF Law Faculty Publications

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm …

Re-Thinking Minnesota's Criminal Justice Response To Sexual Violence Using A Prevention Lens, Caroline Palmer, Bradley Prowant

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

Sexual violence is one of the most difficult issues we face in the human condition. Even with the many strides that have occurred in recent years to support a victim-centered response, survivors who seek help from the legal, medical and mental health systems, among others still “may face disbelief, blame, and refusals of help instead of assistance.” It is a problem that demands a response from all levels of society. And yet this response is lacking.

The key question we as a society confront is what changes will satisfactorily balance justice for victims with offender accountability, attempts at rehabilitation through …

Freeing Morgan Freeman: Expanding Back-End Release Authority In American Prisons, Frank O. Bowman Iii

Faculty Publications

This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific. First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus. Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on …

Putting Desert In Its Place, Christopher Slobogin, Lauren Brinkley-Rubinstein

Vanderbilt Law School Faculty Publications

Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call empirical desert. The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived lay views about how much punishment is deserved is the most efficient way of achieving utilitarian goals, or at least is as efficient at crime prevention as a system that focuses solely on deterrence and incapacitation. This Article describes seven original studies that test …

Plea Bargaining, Sentence Modifications, And The Real World, Julian A. Cook

Scholarly Works

This article examines the 2011 Supreme Court decision in United States v. Freeman. At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission. By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction. However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for …

Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr

Articles

The Sentencing Commission’s recent report on the effects of United States v.Booker makes a number of very worri- some claims.The most alarming is that the gap in sen- tences between otherwise similar Black and White men has nearly quadrupled: from 4.5 percent before Booker, to 15 percent after it, to 19.5 percent after United States v. Kimbrough and United States v.Gall. 1 The Commission further claims that interjudge disparity has increased in two-thirds of the federal districts, and that interdistrict variation has also increased.2 If its findings were accurate, and if these changes could be causally attributed to Booker and …

The Skeptic's Guide To Information Sharing At Sentencing, Ryan W. Scott

Articles by Maurer Faculty

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.

This Article takes a skeptical view of the information sharing model, arguing that it suffers from …

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

UF Law Faculty Publications

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm …

On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi

Articles

In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising throughout the post-arrest justice process, extending beyond the …

Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi

Articles

This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference …