Judicial Sentencing Discretion Research Articles

Punishing for Humanity: The Sentencing Legacy of the ICTY

In determining sentences, the ICTY chose to develop global norms rather than adhere to, or even be strongly guided by, the sentencing norms of the former Yugoslavia. Although the ICTY Statute required the judges to consult national practices in determining sentences, they interpreted this requirement loosely, reserving to themselves a wide discretion that enabled them to identify a range of global sentencing objectives and factors to apply in pursuit of those objectives. The global norms the ICTY developed included norms rejecting harsh punishment, applying consequentialist punishment rationales, privileging gravity as the central sentencing factor, and endorsing broad judicial sentencing discretion. In developing these norms, the ICTY helped to build a foundation that other international courts, and perhaps some national courts, are likely to rely on for the foreseeable future.

LEGISLATIVE EROSION OF JUDICIAL DISCRETION IN RELATION TO MURDER WITH EXTENUATING CIRCUMSTANCES IN BOTSWANA: A CRITIQUE OF THE AMENDMENT OF SECTION 203 (2) OF THE PENAL CODE

Murder is an offence that is regarded as atrocious across all civilisations. It is for this reason that some countries, including Botswana, still retain the death penalty for the offence of murder. In April 2018, the parliament of Botswana amended Section 203 (2) of the Penal Code to introduce a minimum mandatory sentence of 15 years imprisonment for murder with extenuating circumstances. This development was applauded in some quarters as an indication that parliament was getting tougher on murder and had delimited the discretion of the judiciary to impose lenient sentences. This paper evaluates the necessity and desirability of the minimum mandatory sentence within the premise of judicial discretion in sentencing. A pre-amendment assessment of the sentencing patterns of the courts of Botswana, in relation to murder with extenuating circumstances, is undertaken with a view of determining whether there was either inexcusable leniency or flagrant disparities. The paper contends that the courts were already effectively self-regulating in their sentencing for murder with extenuating circumstances, and that an intrusive legislative intervention by way of the minimum mandatory sentence was unnecessary. It is maintained that this erosion of judicial discretion is likely to result in injustices in instances where the particular circumstances of a case would have otherwise justified a sentence of less than 15 years imprisonment.

Sentencing with Love, Not Hate

Judge Jack B. Weinstein approached every sentencing with his trademark compassion and intellectual rigor. This was nowhere more evident than in two of the most challenging sentencing contexts: child pornography and terrorism. This essay considers Judge Weinstein’s refusal to sentence based on assumptions about defendants and their conduct, and his insistence on empirical data, expert evaluations, and asking the hardest questions about motivation and future behavior before imposing sentence. It focuses on Judge Weinstein’s sentencing practices in terrorism and child pornography cases, the two areas in which Congress and the U.S. Sentencing Commission have most limited judicial discretion in sentencing. It shows that despite those limits, Judge Weinstein sought always to impose individualized sentences based on the actual person before him. He believed every person—no matter their worst act—could be salvaged, and deserved happiness.

Review 2 of "Use of the federal guidelines while maneuvering to achieve 'justice': A non-participant observational study of judicial sentencing discretion in illegal reentry cases in a U.S. District Court"

Review 2 of "Use of the federal guidelines while maneuvering to achieve 'justice': A non-participant observational study of judicial sentencing discretion in illegal reentry cases in a U.S. District Court"

Review 3 of "Use of the federal guidelines while maneuvering to achieve 'justice': A non-participant observational study of judicial sentencing discretion in illegal reentry cases in a U.S. District Court"

Review 3 of "Use of the federal guidelines while maneuvering to achieve 'justice': A non-participant observational study of judicial sentencing discretion in illegal reentry cases in a U.S. District Court"

Review 1 of "Use of the federal guidelines while maneuvering to achieve 'justice': A non-participant observational study of judicial sentencing discretion in illegal reentry cases in a U.S. District Court"

Review 1 of "Use of the federal guidelines while maneuvering to achieve 'justice': A non-participant observational study of judicial sentencing discretion in illegal reentry cases in a U.S. District Court"

Critical Analysis of Gender Consideration in Judicial Sentencing

Indian penal Acts have given wide discretion to the judiciary to render appropriate sentence for an offender. This judicial sentencing discretion is vital for maintaining the balance between the punishing the offenders and controlling prison overcrowding. Judiciary also must consider the societal impact and sufferings of the victim while imposing sentence to an offender. At the time of rendering punishment under Indian penal code or any other criminal Acts, the court must consider the aggravating and mitigating circumstances of a case. Aggravating factors relating to the crime whereas, mitigating factors relating to the offender's background*. Indian legislation as well as Indian judiciary has shown leniency towards women offenders while rendering punishment. This trend is prevailing in other developed nations. However, Indian judiciary has avoided leniency towards the offenders who had committed offences against women. in this paper the author is going to analyse whether gender is a mitigating factor or not for rendering lesser punishment in a crime and how the Indian judiciary and other countries dealing with “gender issues” while punishing offenders. The author is furthermore going to analyse causes and consequences of the enactment of gender biased penal provisions in India.

Controlling Judicial Sentencing Discretion

Controlling Judicial Sentencing Discretion

Permitting Voluntary Euthanasia and Assisted Suicide: Law Reform Pathways for Common Law Jurisdictions

End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.

Permitting Voluntary Euthanasia and Assisted Suicide: Law Reform Pathways for Common Law Jurisdictions

<p><em><span style="font-family: Times New Roman; font-size: medium;">End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.</span></em></p>

Judicial Discretion in Sentencing: A Justice System that is No Longer Just?

One of the fundamental principles of the criminal law is consistency: like offenders must be treated alike. However, research has shown that when it comes to sentencing in New Zealand there is in fact substantial regional disparity in the penalty imposed on similarly situated offenders. The situation is unacceptable, and undermines the integrity of the criminal justice system. This paper will explore three different mechanisms for guiding judicial discretion in the pursuit of sentencing consistency. It will undertake an analysis of mandatory sentences and the ‘instinctive synthesis’ approach, both of which will be shown to be unsatisfactory. Instead, the paper will argue that the establishment of a Sentencing Council with a mandate to draft presumptively binding guidelines is the most appropriate way forward for New Zealand. This option finds the correct equilibrium between giving a judge sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases.

Judicial Discretion in Sentencing: A Justice System that is No Longer Just?

One of the fundamental principles of the criminal law is consistency: like offenders must be treated alike. However, research has shown that when it comes to sentencing in New Zealand, there is in fact substantial regional disparity in the penalty imposed on similarly situated offenders. The situation is unacceptable, and undermines the integrity of the criminal justice system. This article will explore three different mechanisms for guiding judicial discretion in the pursuit of sentencing consistency. It will undertake an analysis of mandatory sentences and the "instinctive synthesis" approach, both of which will be shown to be unsatisfactory. Instead, the article will argue that the establishment of a Sentencing Council with a mandate to draft presumptively binding guidelines is the most appropriate way forward for New Zealand. This option finds the correct equilibrium between giving a judge sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases.

Ex ante Fairness in Criminal Law and Procedure

In Furman v. Georgia, the United States Supreme Court announced that it would not tolerate a capital sentencing regime that imposed death sentences in a seriously arbitrary fashion. The question I ask in this paper is whether we should in fact object to arbitrariness in punishment. The answer I propose is that under plausibly adverse conditions, we might not object to arbitrary penal outcomes, because under those conditions a fair distribution of punishment would be one that equalizes chances across a class of similarly situated criminals. In particular, fairness may require no more than a rough equalization of ex ante chances under conditions of resource scarcity, an inability to rank claims reliably by comparative desert, and a pressing need for punishment to be imposed. I call this an ex ante theory of fairness. The central virtue of ex ante fairness is that it is capable of reconciling parsimony in punishment with equity in its distribution, even when claims about who deserves what are deeply contested. Adopting an ex ante standard of fairness means that a concern for fair treatment of the guilty need not blind us to the realities of the severe resource constraints faced by American criminal justice, and vice versa. After laying out the argument for ex ante fairness in general terms, I proceed to show how several prominent features of American criminal law and procedure—the Supreme Court’s capital jurisprudence, prosecutorial discretion, judicial sentencing discretion, and “strict” criminal liability—all exhibit an implicit commitment to an equalization of chances rather than of outcomes.

Proportional Mens Rea

This Essay makes the case for mens rea, a proportionality-based approach to mens rea selection. Proportional mens rea would provide proportionality safeguards that are otherwise entirely lacking in substantive criminal law and,as a practical matter, unavailable in constitutional law. Creating implied mens rea requirements, where necessary to ensure proportional punishment, is not a judicial usurpation of a legislative function. Rather, it is to take seriously the role that courts play, under both constitutional and substantive criminal law, to ensure that punishment fits the crime. Moreover, proportional mens rea would represent a needed counterweight to prosecutorial behavior whereas current doctrine does not. Given that federal prosecutors do not seek to charge morally blameless people, mens rea doctrine aimed only at protecting moral blamelessness from punishment will largely be redundant of prosecutorial discretion. Proportionality of punishment, however, is a concern that federal prosecutors -- bound by longstanding Executive Branch mandates to seek the maximum supportable penalty in every case and oppose lenient exercises of judicial sentencing discretion--routinely ignore. Judicial mens rea selection, therefore, has a substant substantial contribution to make to the achievement of proportionality of punishment.

The Sentencing Theory Debate: Convergence in Outcomes, Divergence in Reasoning

This essay is inspired by the publication of Andrew von Hirsch and Andrew Ashworth's new book, "Proportionate Sentencing: Exploring the Principles." It is the latest installment in a debate that has gone on now for over thirty years between their "just deserts" account of sentencing and its main rival, "limiting retributivism" first set out by Norval Morris and subsequently endorsed and developed by a number of other prominent sentencing writers in the United States such as Michael Tonry, Richard Frase and Kevin Reitz. This debate has heated up recently with the publication of the American Law Institute's draft Model Penal Code sentencing provisions, which explicitly endorse limiting retributivism rather than von Hirsch and Ashworth's just deserts account. We suspect that one of the tacit aims of von Hirsch and Ashworth's new book is to show that the ALI's decision was mistaken. In this essay, we argue that although both sides in the sentencing theory debate purport to provide over-arching accounts of the law of sentencing, in fact each of them concentrates its efforts on a particular aspect of the enterprise. When advocates of these two accounts are faced with real, live sentencing situations, they tend to favour broadly similar outcomes in most cases. The most striking example of this phenomenon is the endorsement of the Minnesota guidelines system by the major advocates of both accounts. Limiting retributivism has always been concerned primarily with criminal justice policy-making and institutional design. Morris, Tonry, Frase and Reitz focus much of their energy on questions such as the composition of a sentencing commission, its procedures for setting overall penalty levels, designing sentencing alternatives to prison and probation and - as a question of institutional design - the regulation of judicial discretion in sentencing. It is not surprising that the American Law Institute's new draft Model Penal Code sentencing provisions, which are focused squarely on those same questions of overall criminal justice policy and institutional design, should endorse this approach. Von Hirsch and Ashworth's just deserts account, although it does not entirely ignore questions of policy and institutional design, is primarily concerned with the justification of state coercion through the mechanisms of sentencing. For those who are concerned with the special role of the sentencing court as a "forum of principle," von Hirsch and Ashworth provide the best account available - the most thorough, the most thoughtful and the most rigorous.

Displaced discretion under Ohio sentencing guidelines

The argument that curbing judicial sentencing discretion generates more prosecutorial discretion at earlier decision points in case processing received little empirical attention beyond Miethe's (1987) before/after study of the Minnesota guidelines. This article presents an examination of whether Ohio's sentencing reform resulted in significant changes in prosecutorial decisions related to indictment severity, dropped charges, charge reductions, and overall plea bargains. The implementation of determinate sentencing guidelines corresponded with a significant yet modest increase in the likelihood of charge reductions only. Some changes also occurred in the specific effects of various defendant characteristics on some of the outcomes examined, but these changes did not uniformly result in harsher dispositions for defendants facing greater social and economic disadvantage. Similar to Miethe's observation regarding Minnesota's sentencing scheme, any increase in levels of prosecutorial discretion that might have occurred under Ohio's latest scheme had not resulted in substantive extra-legal disparities in case dispositions.

Comments on Kadish's 'Moral Excess'

In his essay titled Moral Excess in the Criminal Law, Professor Kadish relates two prototypes of wrongly decided cases that reflect an affinity for judging law a failure, and then raises a general jurisprudential inquiry into the need for an additional excuse doctrine based on non-controversial limits on practical reasoning; all of which, he argues, demonstrate moral excess. For him, these cases and the more general inquiry teach a timeless lesson about the values of cooperation and human fallibility. Each situation, he concludes, illustrates our tendency to expect more from the law than it is capable of delivering, at least at this time in history. A central, unintended message of his piece is the undoubted humanity of a gifted observer, at least prepared to question, although in the end to defend, settled doctrine. In this essay, I will briefly summarize the three cases - instances of excess - on which Professor Kadish and I agree, then rehearse the jurisprudential issue over which we part ways - namely, whether our criminal law ought to take cognizance of bad luck. Because Professor Kadish answers this question in the negative, and provides his answer by denying the need for a new excuse or partial excuse doctrine, he does not consider a different question: Whether courts should consider rotten social backgrounds in the sentencing phase? In the final part, I will present a brief argument in favor of reintroducing substantial, guided judicial discretion in sentencing.

Predicting the estimated use of alternatives to incarceration

A greater use of sentencing alternatives to incarceration may help to reduce problems related to prison crowding and high costs of incarceration. However, a judge's ability to use these alternatives more frequently may be hindered by state sentencing policies designed to reduce judicial sentencing discretion. A study of a national random sample of 181 chief trial court judges revealed that state sentencing policies, court size, and the degree of plea bargaining in a judge's court docket are significant predictors of a judge's estimated use of alternatives to incarceration. Also, these variables are significant predictors of a judge's willingness to use alternatives for specific groups of felons constituting significant proportions of state prison populations. Consistent with the latter finding, a descriptive analysis further revealed that judges who perceive less use of alternatives for felony offenders reside predominantly in states with more crowded prisons.

Judicial Discretion in Sentencing

The role of judicial discretion in the sentencing process is a fundamental and inescapable issue. It tends to become obscured by other issues, such as determinancy and penal policies. When it does come to the public's attention, it is usually in a context of controversy over what a judge has done. The public perception of judicial discretion is almost invariably skewed. For all those reasons, it is important to focus on that issue. A comprehensive discussion of judicial discretion would take more time than is available. I therefore want to narrow the focus to consider what

Effects of Reducing Judicial Sentencing Discretion

ABSTRACT* * *This article uses a nationwide sample of state criminal cases to show the effects of reducing judicial sentencing discretion on disparities across rural‐urban, southern‐northern, black‐white, and poor‐nonpoor defendants. Judicial sentencing discretion is defined as the ratio between (1) the range in years within which a judge is allowed to sentence, and (2) the minimum number of years the judge must give when there is no probation. The data do indicate specific differences in sentencing between states of high judicial discretion and those of low judicial discretion, and the relationship of these disparities to discrimination is discussed.