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Series

2011

Sentencing

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Institution
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Articles 1 - 19 of 19

Full-Text Articles in Law

Why Should States Pay For Prisons, When Local Officials Decide Who Goes There?, W. David Ball Jun 2011

Why Should States Pay For Prisons, When Local Officials Decide Who Goes There?, W. David Ball

Faculty Publications

In the United States, states typically pay for prisons, even though the decisions that lead to prison admissions — arresting, charging, and sentencing — are made by local officials. The practice of state subsidies is relatively recent: there were no state prisons in the early part of the country’s history, and even as state institutions began to be developed, they largely supported themselves financially, rendering the notion of subsidies moot. Given the political economy of local decision-making, local preferences are unlikely to result in optimally-sized state prison populations. This Article suggests that since state prison subsidies may not be desirable …


Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson Mar 2011

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.


The Pitfalls Of Professionalized Prosecution: A Response To Josh Bowers's "Legal Guilt, Normative Innocence, And The Equitable Decision Not To Prosecute", Stephanos Bibas Jan 2011

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 Jan 2011

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, …


Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray Jan 2011

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 …


A Punishing Court Docket, Stephen Wermiel Jan 2011

A Punishing Court Docket, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois Jan 2011

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 …


Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin Jan 2011

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 …


Death Is Not So Different After All: Graham V. Florida And The Court's "Kids Are Different" Eighth Amendment Jurisprudence, Mary E. Berkheiser Jan 2011

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 …


Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas Jan 2011

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

Articles

Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …


Turning The Corner On Mass Incarceration?, David Cole Jan 2011

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 …


The Need To Overrule Mapp V. Ohio, William T. Pizzi Jan 2011

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …


Apprendi Land Becomes Bizarro World: Policy Nullification And Other Surreal Doctrines In The New Constitutional Law Of Sentencing, Benjamin Priester Jan 2011

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 …


Race Disparity Under Advisory Guidelines: Dueling Assessments And Potential Responses, Ryan W. Scott Jan 2011

Race Disparity Under Advisory Guidelines: Dueling Assessments And Potential Responses, Ryan W. Scott

Articles by Maurer Faculty

Dueling studies of race disparity, one by the U.S. Sentencing Commission (USSC, 2010) and an alternative analysis published in this issue by Ulmer, Light, and Kramer (2011), diverge sharply in their methodological choices and in their characterization of trends in federal sentencing. The Commission’s study suggests a marked increase in race disparity, differences in sentencing outcomes between racial groups that cannot be explained by controlling for relevant nonrace factors, after the Supreme Court’s decisions in United States v. Booker (2005) and Gall v. United States (2007). Those decisions rendered the federal Sentencing Guidelines advisory and set a highly deferential standard …


Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse Jan 2011

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 …


New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan Jan 2011

New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan

Law Faculty Scholarship

Over-criminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of the over-criminalization phenomenon by examining two types of over-criminalization prevalent in white collar criminal law. The first type of over-criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly. The second type of over-criminalization addressed in this article is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to …


The Origins Of Back-End Sentencing In California: A Dispatch From The Archives, Sara Mayeux Jan 2011

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 …


'The Mess We’Re In': Five Steps Towards The Transformation Of Prison Cultures, Lynn S. Branham Jan 2011

'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 Jan 2011

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 …