Judicial Sentencing Research Articles

Analysis of Judgments in the Practice of Cardiology Resolved on Appeal in Spain Between 1992 and 2007

Introduction and objectivesThe increase in the prosecution of health issues in Spain has increased the interest in legal claims against physicians. Our objective is to analyze the judgments issued in relation to cardiology practice in Spain in recent years. MethodsWe analyzed the 1899 sanitary judicial sentences issued in Spain in the second instance or later during the period 1992 to 2007. The data sheet includes 25 administrative, clinical, and judicial variables. In addition to a descriptive study, comparative analysis was performed on selected variables. ResultsThere were 32 sentences in the field of cardiology, 31% decided for the plaintiff and with an award amount never exceeding 365 000 euros. The most frequent clinical diagnosis is coronary syndrome (50%). There is a significant statistical relationship (P<.004) between physician specialty and reason for the claim: the most frequent causes (misdiagnosis and malpractice) affected predominantly noncardiologists, while defects in information or informed consent (9.5% of cases) affected cardiologists exclusively. Patient death occurred in 75% of cases. ConclusionsDespite cardiology being a “low-risk discipline” compared to others, the litigant activity has increased dramatically in recent years. Causes for the claims are related to the specialty of the involved physician; misdiagnosis and/or malpractice and defects in information should be emphasized, the former for its frequency and the latter for its novelty.

Race and Gender Differences Under Federal Sentencing Guidelines

Using data from the United States Sentencing Commission, we examine how judicial biases may have influenced sentences during the era of the Federal criminal sentencing guidelines. Our utility maximization model of judicial sentencing preferences leads to a partially censored ordered probit model that accounts for mass points in the sentencing distribution that occur at the upper and lower guideline limits and at sentences involving no prison time. Our results indicate that racial- and gender-based discrepancies exist, even after controlling for circumstances such as the severity of the offense and past criminal history.

An examination of judicial sentencing decisions in child pornography and child molestation cases in Canada

PurposeAccessing and distributing child pornography is an emerging problem. This paper aims to examine the judicial sentencing decisions of child pornography cases and whether they differ from decisions of child molestation cases.Design/methodology/approachUsing a legal database of Canadian court judgments, the study examined sentencing decisions of 50 child pornography and 50 child molestation cases, identifying variables that were present in the judges' reasons for their decision.FindingsThe results revealed a disparity in sentencing that favours incarceration rather than community sentences for child molesters over child pornography cases. Despite what appears to be lighter sentences for child pornography offenders, judges were more likely to sanction treatment and recommend restrictions in cases of child pornography than child molestation. In light of the absence of literature exploring sentencing disparity among child sexual offences, further directions and suggestions for practice are discussed.Practical implicationsThe examination of the disparity of sentencing decisions for child molesters and child pornography offenders and the identified variables that may contribute to these decisions suggests that the judiciary views child pornography and child molestation offenders differently and are more punitive toward contact offenders. Such disparity has implications for the criminal justice system.Originality/valueThis study offers the first exploration of sentencing disparity and decisions on child pornography and child molestation cases in Canada.

The Failure of Recall to Prison: Early Release, Front-Door and Back-Door Sentencing and the Revolving Prison Door in Scotland

This article seeks to explain the reasons for the sharp rise in prison recall rates in Scotland. It argues that recall practices need to be understood not as a technical corner of the justice system, but as part of a wider analysis of the politics of sentencing and release policy. While there are sound reasons for a policy of ‘early release’ (incentivizing good behavior and enabling the resettlement of prisoners), in practice early release has increasingly been used as a tool to try to limit the growth in the custodial population. Unable to control prison numbers through the ‘front door’ (judicial sentencing and bail/remand), successive governments have increasingly relied on early release as a surreptitious way of, in effect, re-sentencing prisoners. We argue that this political strategy is ultimately self-defeating, not least in feeding public cynicism about the penal system and community supervision in particular. This article reviews the changing legislative, policy and practice landscape of the regulation of non-compliance and recall practice, and draws on the desistance literature to illustrate how offender-supervisor relationships can be undermined by recall policies which threaten the legitimacy of both the supervisory relationship and the conditions of supervision orders.

Revisiting the Normal Crime and Liberation Hypotheses

The established sentencing scholarship focusing on race/ethnicity and sentencing disparity indicates that the effect of race/ethnicity on sentencing severity varies across offense types. However, it is not clear whether this argument holds true when race/ethnicity is replaced with offender citizenship status as the primary variable of interest. In light of the research gap, this study extends beyond the existing literature exclusively on race/ethnicity by investigating the nexus between citizenship status, offense types, and sentencing outcomes through the normal crime hypothesis and the liberation hypothesis. Using the Monitoring of Federal Criminal Sentences data that include information on all offenders sentenced in 17 federal district courts for fiscal years 2006–2008, the present study assesses the independent and interactive effects of citizenship status and offense types on the judicial sentence length decision. Findings reveal that although models fail to support the normal crime hypothesis, there is robust support for the liberation hypothesis.

Judicial Hunch as Short-Circuited Decision

The current paper analyses the role of hunches in the judicial decision-making process, particularly in the judgment of what legal theorists call “easy cases”. It suggests that in these cases (which represent the bulk of cases in any jurisdiction), hunches are better seen as short-circuiting algorithms which judges form in time, rather than mere intuitions. This idea is supported by differences between more and less experienced judges, or by the fact that they can be verbalized and argued for in judicial sentences. Hunches (as algorithms) are created over time, through routine, by using specific devices.The first section of the paper describes these devices that predetermine the creation of hunches. At the same time it argues against seeing hunches as intuitions, by drawing a theoretical distinction between the two with the aid of recent empirical discoveries. The second section presents the “province of judicial hunch”, i.e. the components of judicial decision-making where hunches come into play – starting from the process of judging the parties, ending with law interpretation and weighting the consequences of the decision.Eventually, this essay provides an opening point for taking judicial hunches seriously, as virtues of our human aim towards efficiency, and not as “flaws” derived from our human irrationality.I am indebted to Prof Stephen Guest and Dr George Letsas from University College London, as well as to Prof Fred Schauer from University of Virginia, for important feedback on this paper.This paper would have not existed without the financial support of the Ratiu Family Foundation, UK, and of the Dinu Patriciu Foundation, Romania.

¿Existe el Plain Spanish? La modernización del discurso jurídico-administrativo y su influencia en la traducción jurídica

En el presente artículo investigamos acerca del discurso jurídico-administrativo y sus transformaciones. Tras determinar las características terminológicas, morfológicas y sintácticas de dicho discurso, analizaremos el impacto que, sobre todo en Reino Unido y en Estados Unidos, ha tenido un movimiento de gran calado denominado Plain English, mediante el cual el ciudadano medio exige un lenguaje claro y comprensible por parte de la Justicia y de la Administración Pública. Mostraremos que este movimiento se ha extendido a nuestro país y estudiaremos las distintas medidas nacionales ofrecidas con el fin de lograr una comunicación eficaz con el público en general. Analizaremos la influencia de este lenguaje claro en la traducción jurídica mediante el análisis de una sentencia en las lenguas española e inglesa en aras a comprobar la viabilidad de un Plain Spanish.

Pre- and Post-Trial Equality in Criminal Justice in the Context of the Separation of Powers

The previous Westminster criminal justice system entailed a different kind of separation of powers insofar as it concerns the role of state prosecutors. In the Westminster system prosecutors are part of the executive branch, whereas they were a split-off from the judiciary in constitutional states and function like a de facto second organ of the third branch of state power. Currently executive interference in state prosecutions often leads to pre-trial inequality. A further difficulty arises from the unconsidered manner in which the former royal prerogative of pardoning was retained in the Constitution of the Republic of South Africa, 1996. It used to be a royal veto of judicial sentences in the constitutional monarchy of the former Westminster model. Although the corresponding veto of parliamentary legislation by the head of state did not survive into modern times, the pardoning power has not been discontinued. Section 84(2)(j) thus causes an irreconcilable conflict with section 165(5) of the Constitution which guarantees the legally binding force of judicial decisions. It undermines the rule of law and leads to post-trial inequality in the execution of sentences. The parole system, which dates back to 1959, likewise allows the executive to overrule judicial sentences and is in conflict with section 165(5). The perpetuation of the status quo in criminal justice is in effect leading to a re-Westminstering of the constitutional state.Keywords: prosecutors; nolle prosequi; pre-trial equality; post-trial equality; pardon; parole; administrative act; administration of justice; criminal justice; judicial power; prerogative power

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.

Influência do exame médico-legal na responsabilização do autor da violência sexual contra adolescentes

OBJETIVO: avaliar a influência do exame médico-legal na responsabilização criminal de acusados de violência sexual contra adolescentes do sexo feminino. MÉTODO: foram analisados retrospectivamente 137 processos judiciais de estupro contra adolescentes matriculadas no Centro de Referência da Criança e do Adolescente entre janeiro de 1995 e dezembro de 2004. Os laudos do Instituto Médico Legal foram classificados como negativos ou positivos para a materialidade do crime sexual e confrontados com a sentença judicial, condenatória ou não para o acusado. Os dados foram informatizados em Programa EpiInfo e submetidos ao teste de Qui-quadrado para Tabelas de contingência, fixando-se em p &lt; 0,05 o nível de rejeição da hipótese de nulidade. RESULTADOS: em 30 casos (21,9%) o laudo foi concordante com a queixa de estupro. Em 107 casos (78,1%) o exame médico-legal não encontrou evidência material do crime sexual. Entre os exames positivos, 25 acusados (83,3%) foram condenados, enquanto nas perícias negativas ocorreram 68 condenações (63,5%). CONCLUSÕES: o exame médico-legal positivo se associou com maior probabilidade de condenação do acusado da violência sexual. A ausência de elementos comprobatórios materiais não impediu a responsabilização de parte expressiva dos acusados, indicando que outros meios de convencimento são admitidos pela justiça.

Measuring Risk and Blameworthiness in the Sentencing of Criminal Defendants: an Exploratory Study in Western Australia's Higher Courts

The focal concern perspective dominates quantitative explorations of judicial sentencing. A critical argument underlying this perspective is the role of judicial assessments of risk and blameworthiness. Prior research has not generally explored how these two concepts fit together. This study provides an empirical test of the focal concerns perspective by examining the latent structure among the measures traditionally used in sentencing research, and investigates the extent to which focal concerns can be applied in a non-US jurisdiction. Using factor analysis (as suggested by prior research), we find evidence of distinct factors of risk and blameworthiness, with separate and independent effects on sentencing outcomes. We also identify the need for further development of the focal concerns perspective, especially around the role of perceptual shorthand.

Defending the Homeland: Judicial Sentencing Practices for Federal Immigration Offenses

In the last decade, immigration prosecutions in federal court have increased 165%, with immigration offenses comprising over 28% of the federal criminal caseload in 2008. Despite this increase, research has yet to fully examine the sentencing outcomes for these offenders. Exploration of sentencing outcomes for immigration offenders is particularly salient due to the racial/ethnic composition of these defendants and the documented history of disparate treatment of minorities at this decision point. To explicate these issues, we examine the sentence length of immigration cases to assess the impact of legal, extra-legal, and case-processing factors. We further disaggregate by offense type to explore if correlates of sentencing are consistent across specific categories of immigration violations. Finally, we examine southwestern border districts, which process over 70% of all cases, to assess their specific sentencing practices. Model results, theoretical implications, and avenues for future research are also discussed.

Do Judges Vary in Their Treatment of Race?

AbstractAre minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African American and white defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, in which race does not influence judicial sentencing. In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.

Putting the offender back into sentencing: An empirical study of the public’s understanding of personal mitigation

In recent times judicial sentencing has become harsher. This is in response, at least in part, to the public’s apparent view of mitigation personal to the offender as of little importance, particularly in serious cases. Recent research on factors seen by the public as mitigating is consistent with this. But perhaps humanity in sentencing would emerge if people were given detailed information about cases and felt they were dealing with a real person, and that their responses were important? The present study tested this. Judges presented four actual cases, involving six offenders, to over 470 participants in 32 groups around Victoria, Australia. The participants responded by discussing the judges’ sentences in these groups (after individually imposing sentences for these offenders). In fact, the participants found numerous matters involving culpability, rehabilitation and mercy to be mitigating. Thus, it would seem, calls from among the public for tougher sentencing and the judiciary’s acquiescence in this are not well founded. Moreover, for research on personal mitigation, how the offender is presented to participants appears to matter.

Border Justice? Sentencing Federal Narcotics Offenders in Southwest Border Districts: A Focus on Citizenship Status

The war on drugs has largely been waged in the southwestern border region of the United States. Five federal border districts (California South, Arizona, New Mexico, Texas West, and Texas South) alone are responsible for roughly one quarter of federal narcotics prosecutions annually. Narcotics cases make up roughly 30% of the federal criminal caseload each year, and the number of Hispanic and noncitizen defendants prosecuted in U.S. federal courts has risen steadily over the past two decades. In 1991, noncitizens comprised about 23% of persons prosecuted in federal courts; by 2009, nearly 45% of those prosecuted were noncitizens.This study examined judicial sentencing practices for federal narcotics offenders in these five southwestern border districts to explore the effect of citizenship status on sentence length. We also partition our analysis by district to enable assessment of variation in sentencing practices across these federal border districts.

Sentencing Asian Offenders in State Courts

A significant body of literature has developed to explain the controversial issue of sentencing disparity among various racial/ethnic groups. According to the focal concerns perspective, judges may rely on race-based stereotypes, among other factors, in reaching sentencing outcomes. This contention has received support by the empirical literature when examining sentencing differences that emerge between similarly situated White, Black, and Hispanic offenders. Unfortunately, very little research has addressed the relative treatment of Asian offenders to determine whether stereotypes that commonly target these individuals—particularly the “model minority” stereotype—emerge as a potential extralegal factor in judicial sentencing decisions. To address this shortcoming, the current study employs a large sample of offenders processed by state courts to examine the sentencing of Asians relative to White, Black, and Hispanic offenders. Findings are consistent with a focal concerns/model minority perspective and indicate that Asians are, in fact, treated more leniently than other racial/ethnic groups at the incarceration decision. This extralegal disparity, however, does not emerge during the sentence length decision. Implications for theory, policy, and future research are discussed.

SENTENCING HOMICIDE OFFENDERS IN THE NETHERLANDS: OFFENDER, VICTIM, AND SITUATIONAL INFLUENCES IN CRIMINAL PUNISHMENT*

Empirical investigations of criminal sentencing represent a vast research enterprise in criminology. However, this research has been restricted almost exclusively to U.S. contexts, and often it suffers from key data limitations. As such, an examination of more detailed international sentencing data provides an important opportunity to assess the generalizability of contemporary research and theorizing on criminal punishment in the United States. The current study investigates little‐researched questions about the influence of prosecutorial sentencing recommendations, victim/offender relationships, and extralegal disparities in sentencing by analyzing unique data on the punishment of homicide offenders in the Netherlands. The results indicate that offender, victim, and situational offense characteristics all exert important independent effects at sentencing and that prosecutorial recommendations exert powerful influences over judicial sentences. The article concludes with a discussion of future directions for comparative sentencing research across international contexts.

Judicial Discretion and Sentencing Behavior: Did the Feeney Amendment Rein in District Judges?

This research studies the impact of changes to judicial discretion on criminal sentencing outcomes. The 2003 Feeney Amendment restricted federal judges' ability to impose sentences outside of the Sentencing Guidelines and required appellate courts to review downward departures. Using data on all federal sentences between 1999 and 2004, we show that the amendment reduced downward departures by 5 percent. Controlling for characteristics of the crime and the offender, we find that the Amendment increased average prison sentences by about two months. There is no evidence that judges adjusted offense levels or criminal history in order to circumvent the Amendment.

News items about clinical errors and safety perceptions in hospital patients

OBJECTIVE To analyze how news items about clinical errors are treated by the press in Spain and their influence on patients. METHODS We performed a quantitative and qualitative study. Firstly, news items published between April and November 2007 in six newspapers were analyzed. Secondly, 829 patients from five hospitals in four autonomous regions were surveyed. RESULTS We analyzed 90 cases generating 128 news items, representing a mean of 16 items per month. In 91 news items (71.1%) the source was checked. In 78 items (60.9%) the author could be identified. The impact of these news items was -4.86 points (95% confidence interval [95%CI]: -4.15-5.57). In 59 cases (57%) the error was attributed to the system, in 27 (21.3%) to health professionals, and in 41 (32.3%) to both. Neither the number of columns (p=0.702), nor the inclusion of a sub-header (p=0.195), nor a complementary image (p=0.9) were found to be related to the effect of the error on safety perceptions. Of the 829 patients, 515 (62.1%; 95%CI: 58.8-65.4%) claimed to have recently seen or heard news about clinical errors in the press, on the radio or on television. The perception of safety decreased when the same person was worried about being the victim of a clinical error and had seen a recent news item about such adverse events (chi(2)=15.17; p=0.001). CONCLUSIONS Every week news items about clinical errors are published or broadcast. The way in which newspapers report legal claims over alleged medical errors is similar to the way they report judicial sentences for negligence causing irreparable damage or harm. News about errors generates insecurity in patients. It is advisable to create interfaces between journalists and health professionals.

Noticias de prensa sobre errores clínicos y sensación de seguridad al acudir al hospital

Objective To analyze how news items about clinical errors are treated by the press in Spain and their influence on patients. Methods We performed a quantitative and qualitative study. Firstly, news items published between April and November 2007 in six newspapers were analyzed. Secondly, 829 patients from five hospitals in four autonomous regions were surveyed. Results We analyzed 90 cases generating 128 news items, representing a mean of 16 items per month. In 91 news items (71.1%) the source was checked. In 78 items (60.9%) the author could be identified. The impact of these news items was −4.86 points (95% confidence interval [95%CI]: −4.15–5.57). In 59 cases (57%) the error was attributed to the system, in 27 (21.3%) to health professionals, and in 41 (32.3%) to both. Neither the number of columns (p=0.702), nor the inclusion of a sub-header (p=0.195), nor a complementary image (p=0.9) were found to be related to the effect of the error on safety perceptions. Of the 829 patients, 515 (62.1%; 95%CI: 58.8–65.4%) claimed to have recently seen or heard news about clinical errors in the press, on the radio or on television. The perception of safety decreased when the same person was worried about being the victim of a clinical error and had seen a recent news item about such adverse events (χ 2=15.17; p=0.001). Conclusions Every week news items about clinical errors are published or broadcast. The way in which newspapers report legal claims over alleged medical errors is similar to the way they report judicial sentences for negligence causing irreparable damage or harm. News about