Law Commons^™

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Publications

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors—who control plea terms—as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules and doctrines, …

Diminished Criminal Responsibility: A Multinational Comparative Review, E. Lea Johnston, Kendall D. Runyan, Fernando José Silva, Franscisco Maldonado Fuentes

UF Law Faculty Publications

This article reviews the legal frameworks of diminished criminal responsibility in eighteen civil law jurisdictions across the globe—Brazil, Chile, China, the Czech Republic, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, Poland, Portugal, Russia, Spain, Switzerland, Taiwan, and Turkey. Specifically, it reports the legal standards and main features of partial responsibility, associated penalty reductions, and potential dispositions following a partial responsibility finding. It also surveys empirical data on the prevalence of diminished responsibility as compared to criminal nonresponsibility. This article, which reflects contemporary penal codes and draws from both English and non-English sources, is the only known existing source to compile …

The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz

Faculty Publications

Relying on a dataset I assembled of 130 doctors prosecuted for illegal opioid distribution between 2015 and 2019, this Article shows that judges rejected federal prosecutors’ sentencing recommendations over two-thirds of the time. Put differently, prosecutors lost much more often than they prevailed at sentencing. And judges often rejected the prosecutors’ sentencing positions by dramatic margins. In 23% of cases, judges imposed a sentence that was half or even less than half of what prosecutors recommended. In 45% of cases, judges imposed a sentence that was at least one-third lower than what prosecutors requested. In short, prosecutors lost most of …

Evidence, Arrest Circumstances, And Felony Cocaine Case Processing, Jacqueline G. Lee, Alexander Testa

Criminal Justice Faculty Publications and Presentations

Case evidence and situational arrest characteristics are widely speculated to influence courtroom actor decisions, yet such measures are infrequently included in research. Using new data on felony cocaine cases from an urban county in a Southern non-guideline state, this study examines how physical evidence and arrest circumstances affect three stages of case processing: initial charge type, charge reduction, and sentence length. The influence of evidence appeared strongest at the early stage when prosecutors chose the appropriate charge, though certain evidentiary and arrest measures continued to influence later decisions. Charge reductions were driven mostly by legal factors, and while guilt should …

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Josph Colquitt, Griffin Sims Edwards

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally …

The Effects Of Voluntary And Presumptive Sentencing Guidelines, Stephen Rushin, Griffin Sims Edwards, Josph Colquitt

Faculty Publications & Other Works

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally …

Instrumentalizing The Expressive: Transplanting Sentencing Circles Into The Canadian Criminal Trial, Toby S. Goldbach

Cornell Law Faculty Publications

This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as "sentencing circles" into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles. As a way to bridge the gap between vastly differing worldviews and approaches to justice, judges and Aboriginal justice advocates transplanted sentencing circles into the sentencing phase of the criminal …

Diagnosis Dangerous: Why State Licensing Boards Should Step In To Prevent Mental Health Practitioners From Speculating Beyond The Scope Of Professional Standards, Jennifer S. Bard

UF Law Faculty Publications

This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death penalty, it most frequently occurs in Texas because of a statute that makes it mandatory for juries to determine the future dangerousness of the defendant they have just found guilty. Both the American Psychiatric Association and the American Psychological Association have protested the use of mental health professionals in this setting because there are …

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 …

Nothing Is Not Enough: Fix The Absurd Post-Booker Federal Sentencing System, Frank O. Bowman Iii

Faculty Publications

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii

Faculty Publications

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …

Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas

Articles

Criminal sentencing hearings provide unique opportunities for teaching and learning case theory. These hearings allow attorneys to develop a case theory in a context that both permits understanding of the concept and, at the same time, provides a window into the difficulties case theory can pose. Some features of sentencing hearings, such as relaxed rules of evidence and stock sentencing stories, provide a manageable application of case theory practice. Other features of sentencing hearings, such as the defendant's allocution, require an attorney to contend with competing "case theories," and as a result, to face the ethical and counseling challenge of …

Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas

Articles

THE COURT: I don't think I have time to listen .... I am not going to reexamine your guilt or innocence here. That is not the purpose of a sentence.. THE DEFENDANT: I did not have the chance to tell you .... THE DEFENDANT: But, your Honor, listen to me-1 Should the court hear this defendant? Is the story of innocence relevant at allocution-the defendant's opportunity to speak on his or her own behalf at the sentencing hearing prior to the imposition of sentence? Or, is the purpose of allocution something different, as the judge suggests? The answers depend on …

Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii

Faculty Publications

This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …

To Err Is Human: The Judicial Conundrum Of Curing Apprendi Error, Joshua Fairfield

Articles by Maurer Faculty

No abstract provided.

White-Collar Crime, White-Collar Time: The Sentencing Of White-Collar Offenders In The Southern District Of New York, Ilene H. Nagel, John L. Hagan

Articles by Maurer Faculty

In this Article, Professors Hagan and Nagel report upon their study of sentencing patterns in white-collar cases tried in the Southern District of New York between 1963 and 1976. Using multiple regression analysis, the authors first demonstrate a strong correlation between lenient sentencing practices and white-collar offenses. The authors then focus their study upon various white-collar crimes, using multiple regression analysis to reveal that considerable variation exists between sentencing patterns for the different white-collar offenses and for the different types of defendants sentenced in the Southern District during the period under study.

The Sentencing Of White-Collar Criminals In Federal Courts: A Socio-Legal Exploration Of Disparity, Ilene H. Nagel, John L. Hagan

Articles by Maurer Faculty

No abstract provided.

The Differential Sentencing Of White-Collar Offenders In Ten Federal District Courts, Ilene Nagel Bernstein, John Hagan, Celesta Albonetti

Articles by Maurer Faculty

While sociologist have long debated the relationship between the status characteristics of criminal offenders and the sentences they receive, they have done so with data sets drawn from state courts whose prosecutorial resources are focused almost entirely on low status defendants. Qualitative and quantitative data analyzed in this paper are drawn from ten federal district courts whose statutes and resources provide greater potential for the prosecution of the white-collar crimes of higher status offenders. Three questions are addressed: (1) Are there substantial jurisdictional differences in the prosecution of white-collar cases? if so, (2) Are there corresponding jurisdictional differences in the …

The Sentence Bargaining Of Upperworld And Underworld Crime In Ten Federal District Courts, Ilene Nagel Bernstein, John Hagan

Articles by Maurer Faculty

This paper explores the use of different types of sentence bargaining tactics in ten federal district courts. We distinguish between proactive and reactive prosecutorial orientation, and hypothesize that proactive prosecution of upperworld crime is associated with more explicit sentence bargaining than is the reactive prosecution of underworld crime. We present evidence for and explanations of this relationship.