American Sentencing Research Articles

Reflecting on Nearly Four Decades of the Great American Sentencing Songbook

This short article provides a brief overview for the Federal Sentencing Reporter’s republishing of past articles using a “greatest hits” theme. This article notes the wide range of people who have contributed in myriad ways to the long-running Federal Sentencing Reporter band. The visionary work of founding editors Daniel J. Freed and Marc L. Miller are noted, along with the many wonderful producers of the FSR experience at the University of California Press.

미국의 사기죄에 대한 양형기준과 시사점

미국의 사기죄에 대한 양형기준과 시사점

Forty Years of American Sentencing Guidelines: What Have We Learned?

Since 1980, 22 state and federal jurisdictions have adopted sentencing guidelines. Nineteen still have them. No two systems are alike. Experience suggests that any well-designed system requires five core features: a permanent, balanced, independent, and adequately funded sentencing commission; typical-case presumptive sentences and departure criteria; a hybrid sentencing theory that recognizes both retributive and crime control purposes; balance between the competing benefits of rules and discretion; and sentence recommendations informed by resource and demographic impact assessments. Balance is needed in terms of commission composition, between conflicting sentencing purposes, between rules and discretion, and between the influence of the commission, the legislature, and case-level actors. Guidelines proponents disagree about a number of important issues. Some relate to which crimes and sentencing issues should be regulated. Others concern the design details that determine how the system actually works. It is clear, however, that preguidelines regimes of unstructured, highly discretionary sentencing are unacceptable and that commission-drafted guidelines, endorsed by the American Bar Association and the American Law Institute, are the only successful sentencing reform model. In four decades, no competing model of comparable detail and scope has been seriously proposed.

Jennifer Haigh

Jennifer Haigh Jennifer Haigh (bio) I first attended the Conference twenty years ago, in the summer of 1999. I had just quit my glossy magazine job in New York because I wanted to go be a novelist. That I did this without ever having published a single word of fiction will give you an idea how young I was. I moved to Baltimore, where rents were still so cheap that I could eke out a living teaching yoga while I worked on a terrible novel that has mercifully never seen the light of day. [End Page 715] I brought the first chapter of that novel to Sewanee, where Amy Hempel and Barry Hannah were put in the unenviable position of having to comment on it. Amy was kind, rueful. Barry seemed outraged by how bad it was. As he picked apart the opening paragraph sentence by sentence, I felt unfairly judged: Had I not clearly written the words first draft at the top of every page? In Barry's view, it was no excuse. Even in a first draft, the sentence mattered. For him it was a point of faith: writing a story with bad sentences was a doomed enterprise, like building a house of rotted wood. It remains the most valuable piece of advice I have ever been given. It forever changed the way I write. When I returned to the Conference four years later, as a Walter E. Dakin fellow, I had a new MFA from Iowa. My first novel, Mrs. Kimble, had just been published and would soon win the PEN/Hemingway Award for Debut Novel. I am certain that none of those things would have happened had I not encountered Barry Hannah that summer at Sewanee. He'd written some of the best American sentences of the twentieth century, and he had the grace to take me seriously. He was more generous to me than any writer I have ever known. Jennifer Haigh Jennifer Haigh is the author of the story collection News from Heaven and five novels—most recently, Heat and Light. Copyright © 2019 The University of the South

Fifty Years of American Sentencing Reform: Nine Lessons

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice. Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending. Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime. Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines. Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes. Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.

Making American Sentencing Just, Humane, and Effective

American sentencing laws are rigid, harsh, and often unjust. Mass incarceration is a tragedy and a national embarrassment. Laws enacted in the 1980s and 1990s that mandated lengthy prison terms are the primary causes. The challenges are to undo mass incarceration, repeal or fundamentally overhaul the laws that caused it, and rebuild American sentencing systems. American legislators have not yet seriously addressed the subject. Hundreds of minor changes have recently been enacted, but they nibble at the edges—creating narrow exceptions to harsh laws for first offenders, narrowing criteria for probation and parole revocation, and establishing new treatment and “reentry” programs. These changes are important to individuals they affect but will not reverse mass incarceration or prevent individual injustices. Meaningful change will occur only when the mandatory minimum, three-strikes, life without parole, truth in sentencing, and comparable laws that required prison terms of historically unprecedented severity are repealed and new laws authorizing the release of large numbers of current prisoners are enacted and implemented. Whether these things happen will determine whether mass incarceration and wholesale injustices are much different in 2025 than they were in 2017.

Equality and Human Dignity: The Missing Ingredients in American Sentencing

AbstractConcern for equality and human dignity is largely absent from American sentencing. Prison sentences are imposed much more often than in any other Western country. Prison terms are incomparably longer. The greater frequency of imprisonment is a product of punitive attitudes and politicization of crime control policies. The longer terms result partly from abolition of parole release in every jurisdiction for all or some inmates, but mostly from the proliferation since the mid-1980s of mandatory minimum, three-strikes, life without parole, and truth-in-sentencing laws. The ideas that offenders should be treated as equals and with concern and respect for their interests largely disappeared, though they had been animating values of earlier indeterminate and determinate sentencing systems. Their disregard is evident in the nature of contemporary laws but also in low-visibility policies and practices including the near absence of meaningful systems of appellate sentence review, low standards of proof at ...

Determinants of State Innovations in American Sentencing and Corrections Policy

Recently, government officials, policy makers, and practitioners are taking a closer look at present day sentencing and corrections approaches. State policy decisions have in large part determined how justice is administered, and a variety of contextual factors determine which policies states are likely to adopt. This review synthesizes the empirical literature on determinants of state sentencing and corrections policy innovations and discusses their relative value in predicting state policy adoptions across studies. Results indicate that sentencing and corrections policies are less likely to be predicted by functional explanations such as crime rates than by certain economic, political, and social variables. The most consistently predictive determinants of state policy adoptions are the external influences of other states and the federal government.

American Sentencing

Between you and me, there is nodoubt in your mind. I have been here beforeand will be again for “pseudo-gout,” “reversible lupus,” diseases ephemeral asthe skeptical blink. Unimpressive, you say. It is nodifference to you. Once again, a test outcomeis negative, as if I am less than the sum of zero,a body that registers nothing, not even the pretzelknot of all its parts. Look down my throat. Peerin my ears. Allow your instruments to dictatethe truth as you have learned it—joint connecting symptoms to diagnosis,not the tissue of intuition, notthe fatty imagination, not the instinct of thegut that is flexible and in no way demonstrable.

A Comparative Analysis of English and American Sentences on the Reimbursement Request of Deferred Payment Credit - focus on ucp500 and ucp600 -

A Comparative Analysis of English and American Sentences on the Reimbursement Request of Deferred Payment Credit - focus on ucp500 and ucp600 -

Aussie, Aussie, Aussie, Oi-Oi-Oi: Infants love an Australian accent

This study examines infant’s attention to dialect differences following Nazzi et al.’s [J. Mem. Lang., 43, 1–19 (2000)] finding that American 5-month-olds can discriminate British- and American-English. Using a serial preference task, 48 6-month-old Australian and American infants heard sentence sets spoken in Australian- and American-English. Results showed that at 6 months, American infants listen longer to Australian than American sentences, but Australian infants show no preference. By 8 months, American infants also show no preference. The developmental lag suggests Australian infants have more exposure to the American dialect (e.g., television programs) than American infants to the Australian dialect. Thus, it is predicted, with less linguistic experience, Australian 3-month-olds will show a dialect preference comparable to American 6-month-olds. Data from 14 3-month-olds support this hypothesis; moreover, they also listen longer to Australian than American sentences. Together the results imply that the ability to generalize across two dialects is a function of experience, and that, with age, infants filter out irrelevant phonetic information and cluster American and Australian dialects into the same group. Future directions of this study are discussed as are the reasons why Australian English is the dialect of preference for infants from both dialect environments.

Purposes and Functions of Sentencing

Abstract American sentencing systems have fragmented since the modern sentencing reform movement began in the 1970s and predominant retributive theories of punishment have become obsolete. Indeterminate sentencing was ubiquitous, but when it lost credibility, no single approach replaced it. Every American jurisdiction has a crazy quilt of diverse and, in principle if not practice, irreconcilable elements. Influential retributive theories of punishment were a 1970s response to 1970s problems that no longer galvanize opinion or reform. They are incompatible with the recent growth of restorative and community justice, therapeutic jurisprudence, prisoner reentry programs, and knowledge about the effectiveness of treatment programs. Theories of punishment can provide normative criteria by which policies and practices can be measured, but to be used in that way they must speak to their own times. New sentencing systems more effective and more just than current fragmented systems can be developed, and they will ...

The Blakely Earthquake Exposes the Procedure / Substance Fault Line

This essay, originally presented at the Stanford Law School symposium The Future of American Sentencing: A National Roundtable on Blakely, examines how the Supreme Court's majority and dissent could look at Blakely in such radically different ways. As the majority sees it, Blakely is a fundamental, ringing vindication of the substantive right to jury trial. On this view, Blakely should be fully retroactive to habeas and for Ex Post Facto purposes. But the dissent's view was so different that the two sides were speaking past each other. On that view, Blakely is a mindless formalism, just another hoop for legislatures to jump through or to evade. Though I have been the leading critic of the Apprendi/Blakely line of cases, I must give the Supreme Court credit for forcing us to confront and bridge the artificial divide between substantive criminal law and criminal procedure. What is a crime - is it whatever the legislature labels as a crime? And why have a distinct sentencing phase, after the guilt phase and run by a different factfinder using looser procedures? Do these artificial divisions distract us from the moral import and message that our criminal justice system should be sending? Apprendi and Blakely asked the right questions but gave the wrong answers. A better approach, I argue, would use not the Fifth and Sixth Amendments but the Eighth Amendment to regulate statutory and guideline penalties equally.

The Blakely Earthquake Exposes the Procedure/Substance Fault Line

This essay, originally presented at the Stanford Law School symposium The Future of American Sentencing: A National Roundtable on Blakely, examines how the Supreme Court's majority and dissent could look at Blakely in such radically different ways. As the majority sees it, Blakely is a fundamental, ringing vindication of the substantive right to jury trial. On this view, Blakely should be fully retroactive to habeas and for Ex Post Facto purposes. But the dissent's view was so different that the two sides were speaking past each other. On that view, Blakely is a mindless formalism, just another hoop for legislatures to jump through or to evade. Though I have been the leading critic of the Apprendi/Blakely line of cases, I must give the Supreme Court credit for forcing us to confront and bridge the artificial divide between substantive criminal law and criminal procedure. What is a crime - is it whatever the legislature labels as a crime? And why have a distinct sentencing phase, after the guilt phase and run by a different factfinder using looser procedures? Do these artificial divisions distract us from the moral import and message that our criminal justice system should be sending? Apprendi and Blakely asked the right questions but gave the wrong answers. A better approach, I argue, would use not the Fifth and Sixth Amendments but the Eighth Amendment to regulate statutory and guideline penalties equally.

The Future of American Sentencing: A National Roundtable on Blakely

The Future of American Sentencing: A National Roundtable on Blakely

Looking at the Model Penal Code Sentencing Provisions through Canadian Lenses

Looking back at “American” sentencing over the past fifty years, those of us from outside the United States cannot help but be struck by three phenomena. First, there has been considerable volatility in the manner in which those who offend are punished. Indeed, it is difficult to imagine two sentencing systems that could be as different as an indeterminate model based on a rehabilitative paradigm and a determinate model rooted—it would appear—in an often unstated and unprincipled combination of denunciation, deterrence and harshness. In fact, one would be tempted to speak of revolutionary rather than evolutionary changes in American sentencing structures, particularly with regard to their ramifications on imprisonment rates. Second, the U.S. history of sentencing clearly reflects the characteristically American optimism about the ability of the state to achieve various difficult and diverse goals. Indeed, one notes a persistent belief in the possibility of legislating away the crime problem. Crime—like any social problem—is seen to be surmountable as long as there is sufficient will to do so. Certainly in examining American sentencing structures over the last half century, it would not be difficult to imagine President Kennedy announcing in the early 1960s that not only would the U.S. place a man on the moon by the end of the decade, but it would also solve the problem of crime. Third, the story of sentencing in the U.S. might also be told in terms of shifts in the relative power of the various groups involved in the sentencing process. Depending on the era which one examines over the course of the last fifty years, sentencing can be seen to have been controlled by such differing groups as the legislatures, trial judges,

Modeling Discretion in American Sentencing Systems

Sentencing structures in American jurisdictions have become extraordinarily diverse in the past twenty‐five years. Any one punishment structure, such as the federal sentencing guidelines system, the guidelines system of a particular state, or the indeterminate sentencing plan still followed in many states, contains layers of complexity and a multiplicity of decision makers who hold discretion over sentencing outcomes. Increasingly, conceptual tools are needed to analyze and evaluate the similarities and differences across many systems. The author develops basic theoretical tools to describe the building blocks of various up‐and‐running sentencing structures, with close attention to the permutations of discretions that add up to define sentencing outcomes. Such basic conceptual tools can facilitate observations about single systems and can enable comparative analyses of numerous systems. Further, the author suggests that there are both descriptive and normative principles that can be applied to the structural machinery of sentencing systems. With increasing experience, we are learning that some such innovations work better than others.