Law Commons^™

Punishing Pill Mill Doctors: Sentencing Disparities In The Opioid Epidemic, Adam M. Gershowitz

Faculty Publications

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids. The evidence against both doctors was overwhelming. They each sold millions of opioid pills. Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests. Instead, the doctors simply handed the patients opioids in exchange for cash. To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions. Both doctors made millions of dollars profiting off the misery ...

Judge Consistency In Criminal Sentencing, Emma Lindemeier, Paul Landow

Theses/Capstones/Creative Projects

The United States’ Constitution provides certain protections for those accused of a crime, including proportionate punishment and the right to an attorney. There are sentencing guidelines in place, as well as appointed-counsel systems to ensure that everyone receives these protections when accused of a crime. Some research has shown that the type of counsel present at sentencing may affect the outcome of sentencing, although, the research on the topic is conflicting. Race is another variable that has been found to play into the role of sentencing, as well as gender and age. Other studies have suggested that the differences in ...

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.

Gender And Sentencing: Single Moms, Battered Women, And Other Sex-Based Anomalies In The Gender-Free World Of The Federal Sentencing Guidelines, Myrna S. Raeder

Pepperdine Law Review

No abstract provided.

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

Faculty Scholarship at Penn Law

No abstract provided.

Responding To Mccleskey And Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges In Death Cases, Robert P. Mosteller

Faculty Publications

No abstract provided.

Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.

Punishment As Contract, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment ...

Policing Politics At Sentencing, Stephanos Bibas, Max M. Schanzenbach, Emerson H. Tiller

Faculty Scholarship at Penn Law

No abstract provided.

Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz

Faculty Scholarship at Penn Law

What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the ...

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories ...

The Power Of Bureaucracy In The Response To Blakely And Booker, Ronald F. Wright

Ronald F. Wright

How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences? The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy. Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible. The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing ...

Sentencing Commissions As Provocateurs Of Prosecutor Self-Regulation, Ronald F. Wright

Ronald F. Wright

This Article examines potential efforts by sentencing commissions to influence the work of prosecutors, especially the charges they select and the plea bargains they enter. The practical objections to prosecutorial guidelines issuing from a sentencing commission emphasize two problems: the linguistic impossibility of creating meaningful guidelines and the political impossibility of promulgating them. But experience in the states casts doubt on each of these objections. Some states have codified preexisting prosecutor guidelines, generated by prosecutors themselves, while other states have prompted prosecutors to develop their own internal guidance.

Prompted self-regulation of prosecutors will prove most effective when the ambitions for ...

The Wisdom We Have Lost: Sentencing Information And Its Uses, Marc L. Miller, Ronald F. Wright

Ronald F. Wright

Both federal and state experience in sentencing over the last three decades suggest that sentencing data and knowledge most often lead to wisdom when they are collected with particular uses and users in mind. Ironically, greater reliance on data and expertise can democratize the making and testing of sentencing policy. When data are collected and published with many different users in mind, a variety of participants in the sentencing process can join the Commission as creators of sentencing wisdom, including Congress, state legislatures, state sentencing commissions, sentencing judges, and scholars.

Under the Sentencing Reform Act of 1984, Congress envisioned federal ...

Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.

Responsibility For Unintended Consequences, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as ...

Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas

Faculty Scholarship at Penn Law

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The ...

Pleas' Progress, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.

The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.

The Psychology Of Hindsight And After-The-Fact Review Of Ineffective Assistance Of Counsel, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.

Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach

Faculty Scholarship at Penn Law

No abstract provided.

Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.

New Dimensions In Sentencing Reform In The Twenty-First Century, Robert P. Mosteller

Faculty Publications

No abstract provided.

The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.

Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.

Victim Impact Evidence: Hard To Find The Real Rules, Robert P. Mosteller

Faculty Publications

No abstract provided.

Drug Wars In Black And White, Joseph E. Kennedy

Faculty Publications

No abstract provided.

Double Helix, Double Bind: Factual Innocence And Postconviction Dna Testing, Seth F. Kreimer, David Rudovsky

Faculty Scholarship at Penn Law

No abstract provided.

Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.

Judicial Fact-Finding And Sentence Enhancements In A World Of Guilty Pleas, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.