Law Commons^™

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

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This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse, but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the …

Commentary: Reflections On Remorse, Stephen J. Morse

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This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.

Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas

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This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not …

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

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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.

Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan

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Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set, …

Sentencing Decisions: Matching The Decisionmaker To The Decision Nature, Paul H. Robinson, Barbara A. Spellman

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The present sentencing debate focuses on which decisionmaker is best suited to make the sentencing decision. Competing positions in this debate typically view the sentencing decision as monolithic, preferring one decisionmaker over all the others. A monolithic view of the decision unnecessarily invites poor decisionmaking. The sentencing decision is properly viewed as a series of distinct decisions, each of which can best be performed by a decisionmaker with certain qualities. This Essay demonstrates how a system of optimal decisionmaking might be constructed -by sorting out the different attributes called for by the distinct aspects of the sentencing decision and matching …

Legality And Discretion In The Distribution Of Criminal Sanctions, Paul H. Robinson

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The judicial system now responds to criminal conduct in two rather divergent steps. A judge or jury first determines if a defendant should be held liable for a criminal offense. If so, then the judge or jury goes on to choose a penalty. Precise rules, designed to ensure fairness and predictability, govern the first stage, liability assignment. In the second stage, sentencing, however, judges and juries exercise broad discretion in meting out sanctions. In this Article, Professor Robinson argues that both liability assignment and sentencing are part of a single process of punishing criminal behavior and should be made more …

A Sentencing System For The 21st Century?, Paul H. Robinson

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The Sentencing Reform Act of 1984 created the United States Sentencing Commission and directed it to devise sentencing guidelines for the federal criminal justice system. The Commission recently fulfilled this mandate, promulgating a final set of rules, which took effect November 1. Commissioner Robinson, in filing the lone dissent to these guidelines, argued that they neither meet the expectations of the Act nor provide a comprehensive and workable system. In this Article, Commissioner Robinson discusses the necessary components of a modern, principled, and workable system. He first identifies an ideal system by describing its primary goals and by offering the …

Dissent From The United States Sentencing Commission's Proposed Guidelines, Paul H. Robinson

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I believe the Sentencing Reform Act of 1984, which created the United States Sentencing Commission, contains two main directives. First, the Commission's guidelines must provide a rational and principled sentencing system that will further the purposes of just punishment and crime control. Second, the guidelines must reduce unwarranted disparity among sentences for similar offenders who commit similar offenses. The Act provides that this is to be achieved through the Commission's promulgation of a comprehensive sentencing system that will bind all federal judges. I opposed the Commission's Preliminary Draft of September, 1986, because I saw it as lacking both guiding principles …