Law Commons^™

Unclear Guidelines From The Sentencing Commission And A Prejudiced Warden Result In (Un)Compassionate Release, Mary Trotter

Journal of the National Association of Administrative Law Judiciary

Congress first developed compassionate release in 1984, granting federal courts the authority to reduce sentences for “extraordinary and compelling” reasons. Compassionate release allows the Federal Bureau of Prisons (BOP) and inmates to apply for immediate early release on grounds of “particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” Questions remain about how the BOP and the courts grant compassionate release and whether the courts apply the compassionate release guidelines consistently. The uncertainty is due to the lack of clarity from the USSC to define “extraordinary or compelling circumstances,” …

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

St. John's Law Review

(Excerpt)

Prosecutors are widely considered to be the most powerful actors in the criminal justice system. And federal prosecutors are particularly feared. While some recent scholarship casts doubt on the power of prosecutors, the prevailing wisdom is that prosecutors run the show, with judges falling in line and doing as prosecutors recommend.

This Article does not challenge the proposition that prosecutors are indeed quite powerful, particularly with respect to sentencing. There are many structural advantages built into the system that combine to give prosecutors enormous influence over sentences. For example, prosecutors have considerable power to bring a slew of charges …

How Criminal Code Drafting Form Can Restrain Prosecutorial And Legislative Excesses: Consolidated Offense Drafting, Paul H. Robinson, Matthew Kussmaul, Muhammad Sarahne

All Faculty Scholarship

Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses.

After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay …

Handling Aggravating Facts After Blakely: Findings From Five Presumptive Guidelines States, Nancy J. King

Vanderbilt Law School Faculty Publications

This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range. Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and …

Population-Based Sentencing, Jessica M. Eaglin

Articles by Maurer Faculty

The institutionalization of actuarial risk assessments at sentencing reflects the extension of the academic and policy-driven push to move judges away from sentencing individual defendants and toward basing sentencing on population level representations of crimes and offenses. How have courts responded to this trend? Drawing on the federal sentencing guidelines jurisprudence and the emerging procedural jurisprudence around actuarial risk assessments at sentencing, this Article identifies two techniques. First, the courts have expanded individual procedural rights into sentencing where they once did not apply. Second, the courts have created procedural rules that preserve the space for judges to pass moral judgment …

Same Grid, Different Results: Criminal Sentencing Disparities Between Arkansas Counties, Alexis Stevens

Arkansas Law Review

Abraham Davis is a resident of Fort Smith, Arkansas—and a convicted felon. In May of 2017, the Sebastian County Circuit Court, Fort Smith District, charged Davis with criminal mischief in the first degree, as a Class D felony, for purposely destroying the property of another. Davis’s charge resulted in a criminal sentence ranging from as little as probation to as much as 6 years jail time and/or up to $10,000.00 in fines. This sentencing determination is generally allocated to the judge and prosecutor. However, victim intervention persuaded the court to release Davis on probation, sparing him from a much harsher …

The Application Of Neuroscience Evidence On Court Sentencing Decisions: Suggesting A Guideline For Neuro-Evidence, Yu Du

Seattle Journal for Social Justice

No abstract provided.

One Step Forward, One Step Back: Emergency Reform And Appellate Sentence Review In Maine, Amy K. Tchao

Maine Law Review

Perhaps in no other area of the law is a trial court's power greater than when it is given the task of criminal sentencing. Historically and traditionally, the trial court judge has been given the widest latitude of discretion in determining a proper sentence once a criminal defendant has been found guilty. Indeed, the task of sentencing has been deemed a matter of discretion rather than a question of law. As a result, trial judges historically have not articulated reasons for the sentences that they impose. However, with very few standards or criteria to measure the appropriateness of their decisions, …

Prosecutorial Discretion And Environmental Crime Redux: Charging Trends, Aggravating Factors, And Individual Outcome Data For 2005-2014, David M. Uhlmann

Law & Economics Working Papers

In a 2014 article entitled “Prosecutorial Discretion and Environmental Crime,” I presented empirical data developed by student researchers participating in the Environmental Crimes Project at the University of Michigan Law School. My 2014 article reported that 96 percent of defendants investigated by the United States Environmental Protection Agency and charged with federal environmental crimes from 2005 through 2010 engaged in conduct that involved at least one of the aggravating factors identified in my previous scholarship, namely significant harm, deceptive or misleading conduct, operating outside the regulatory system, and repetitive violations. On that basis, I concluded that prosecutors charged violations that …

Ohio's New Sentencing Guidelines: A "Middleground" Approach To Crack Sentencing, Dan Haude

Akron Law Review

No abstract provided.

Mandatory Minimum Penalties: An Analysis Of Four State’S Penal Codes And Federal Court Policies, Cassie Geiken

Honors Theses

In Nebraska, variations of bills attempting to amend mandatory minimum laws in the state have been introduced. The harshness of the mandatory sentences, as well as the looming state of emergency caused by prison overcrowding, have sustained the debate over sentencing laws. This essay identifies the core issues of mandatory minimum sentencing laws and analyzes the states of Nebraska, Texas, Alabama, California, and the federal system’s use of mandatory minimums for felony charges to identify potential solutions. Statute review found that Nebraska’s current sentencing codes are misaligned with the rest of the nation; not even Alabama with one of the …

Protecting The Fifth Amendment: The Residual Clause In The Mandatory Guidelines Is Void For Vagueness, Olivia M. Tourgee

St. John's Law Review

(Excerpt)

The first part of this Note will address the specific problem the Mandatory Guidelines present. First, the Mandatory Guidelines will be defined, and the mandatory and binding nature of these Mandatory Guidelines will be explored in depth. Second, this Note will explain the significance of the Supreme Court’s opinion in Booker that declared the Mandatory Guidelines unconstitutional. Third, this Note will evaluate Beckles, where the Supreme Court held that the Advisory Guidelines were not subject to vagueness challenges. Thus, the first part of this Note will set the stage for the problem that the Mandatory Guidelines present.

The second …

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 …

Jury Sentencing In The United States: The Antithesis Of The Rule Of Law, Maryann Grover

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The Johnson & Johnson Problem: The Supreme Court Limited The Armed Career Criminal Act's "Violent Felony" Provision—And Our Children Are Paying, Shelby Burns

Pepperdine Law Review

The Armed Career Criminal Act and United States Sentencing Guidelines prescribe sentence enhancements based upon a defendant’s prior convictions. In particular, these federal sentencing tools contain violent felony provisions that outline the requirements a state criminal statute must satisfy for a conviction to constitute a violent felony, making the convicted person eligible for a federal sentence enhancement. However, the Supreme Court’s holdings in Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 135 S. Ct. 2551 (2015) severely limited the scope of both sentencing tools’ violent felony provisions, making it more difficult for certain crimes to …

Towards The Second Founding Of Federal Sentencing, Dawinder S. Sidhu

Maryland Law Review

In 1987, the Nation’s first attempt to standardize federal sentencing came in the form of the United States Sentencing Guidelines. Following United States v. Booker, however, the Guidelines project began bending, and today it is now all but broken, besieged by complexity, undue severity, and the very disparities that it was designed to limit. This Article responds to this crisis by establishing the blueprint for an alternative federal sentencing model. Under this proposal, sentencing determinations would be based on statutory grades and unweighted aggravating and mitigating factors. This approach brings coherence to the purposes of punishment and, by deemphasizing …

The Original U. S. Sentencing Guidelines And Suggestions For A Fairer Future, Stephen G. Breyer

Hofstra Law Review

No abstract provided.

The Federal Sentencing Guidelines: A Good Idea Badly Implemented, Jon O. Newman

Hofstra Law Review

No abstract provided.

Equal Protection Under The Carceral State, Aya Gruber

Publications

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Sentencing Through The Media: How The Media Can Help Strengthen Legal Sanctions Against Sexual Assault By College Athletes, Samantha C. Huddleston

Marquette Sports Law Review

None

United States V. Pho: Defining The Limits Of Discretionary Sentencing, John G. Wheatley

Maine Law Review

In the consolidated case of United States v. Pho, the government appealed two district court rulings that imposed criminal sentences outside of the range provided in the Federal Sentencing Guidelines Manual (Guidelines). At separate trials, both defendants pied guilty to the crime of possession with intent to distribute five grams or more of cocaine base (commonly known as crack). Rejecting the Guidelines' disparate treatment of crack and powder cocaine, the district court imposed sentences that were below the Guidelines' range, but above the statutory mandatory minimum. The Court of Appeals for the First Circuit vacated both sentences and remanded the …

Punishing On A Curve, Adi Leibovitch

Northwestern University Law Review

Does the punishment of one defendant depend on how she fares in comparison to the other defendants on the judge’s docket? This Article demonstrates that the troubling answer is yes. Judges sentence a given offense more harshly when their caseloads contain relatively milder offenses and more leniently when their caseloads contain more serious crimes. I call this phenomenon “punishing on a curve.”

Consequently, this Article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts and courts of limited jurisdiction. Because judges punish on a curve, a court’s jurisdictional scope systematically shapes sentencing outcomes. …

Discretionary Death Penalty For Convicted Drug Couriers In Singapore: Reflections On High Jurisprudence Thus Far, Siyuan Chen

Siyuan CHEN

For decades, drug trafficking was a serious offence in Singapore potentially punishable by mandatory death. In 2012, Singapore’s Misuse of Drugs Act (MDA) was amended to give the courts sentencing discretion if the accused can first prove that he was merely a courier, and to better reflect the moral culpability accorded as between mules and kingpins in the hierarchy of drug syndicates. However, there are some complications in proving this. Not only must the accused show that he was merely a courier, he must also show that he had substantively assisted the authorities in disrupting drugtrafficking activities in Singapore. This …

Eliminating Circuit-Split Disparities In Federal Sentencing Under The Post-Booker Guidelines, Elliot Edwards

Indiana Law Journal

This Note will explore the rarely discussed consequences that result when courts of appeals freely interpret the Sentencing Guidelines. This Note will not address appellate review of sentences in general, nor will it discuss disparities caused by trial courts. Instead, the discussion below will address a very specific situation, namely when a court of appeals vacates a sentence because, in its estimation, the trial court misapplied the Guidelines. Part I will relate the history of the recent sentencing re-form movement in America, noting particularly which bodies have the authority to decide sentencing policy. Part II will then analyze the interpretive …

The Racist Algorithm?, Anupam Chander

Michigan Law Review

Review of The Black Box Society: The Secret Algorithms That Control Money and Information by Frank Pasquale.

A Fatally Flawed Proxy:The Role Of “Intended Loss” In The U.S. Sentencing Guidelines For Fraud, Daniel S. Guarnera

Missouri Law Review

This Article provides the first extended analysis of the new intended loss provision, and it does so primarily through the framework of rules and standards. Generally speaking, a rule is “framed in terms of concepts that can be applied without explicit reference to the principles or policies that might have motivated the rule, usually by specifying operative facts that trigger the rule.” In contrast, the use of standards “involve[s] recourse to justificatory principles or policies, mediated by some form of balancing that does not specify in advance the result thereof.” For example, a law prohibiting driving over sixty-five miles per …

Booker's Ironies, Ryan W. Scott

Articles by Maurer Faculty

No abstract provided.

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …

Limiting Leukophobia: Looking Beyond Lockup. Debunking The Strategy Of Turning White Collars Orange, Jared J. Hight

Jared J Hight

The legal and political landscape of the past 30 years has resulted in the abandonment of the utilitarian principle of parsimony as applied to white collar criminals. In response to preceding decades of minor punishments meted out for serious white collar crimes, the Federal Sentencing Commission abandoned the typical past practices of sentencing judges and instead formulated Guidelines that are wildly excessive and no longer balance the need for community safety with the need for that same community to remain economically efficient. The guiding principles of deterrence, rehabilitation, and incapacitation have been deemphasized in a new model that focuses primarily …