Sentencing Discretion Research Articles

Sentencing Elsewhere: Structuring Sentencing Discretion in Post-communist Europe

AbstractFormer socialist European countries (FSECs) have largely been overlooked in the scholarly debate on sentencing disparities and structuring sentencing discretion. The article addresses this gap by analysing the specific sentencing characteristics in FSECs, which differ from those in their Western counterparts. Specifically, FSECs place greater emphasis on the principle of individualisation and exhibit distrust towards the executive branch. Whilst recent studies have documented important unwarranted disparities in FSECs, scholarly and professional debates on sentencing issues in these countries have been rare and often superficial to date. In this paper, we describe the specifics of sentencing in FSEC, emphasising the broad discretion provided to sentencers, the lack of interest from sentencing stakeholders, and the frequent neglect of procedural factors influencing sentencing. Drawing on existing scholarship and empirical evidence, we put forward general principles for structuring sentencing discretion in a manner specific to FSEC. We identify key actors who might provide guidance and discuss how our suggestions might be implemented in practice.

Moral intuitions, punishment ideology, and judicial sentencing

ABSTRACT Considerable research examines discretion in judicial sentencing. However, little is known about the role of moral values or ideological beliefs in judicial sentencing decisions. The current study draws on insights from moral psychology to propose a model of judicial decision-making in which moral intuitions may inform sentencing both directly and indirectly via ideological beliefs about punishment (including general punitiveness and concern for offenders). We test this model using a statewide survey of Pennsylvania Common Pleas Criminal Court judges (N = 132), which included hypothetical sentencing vignettes. Results indicate that although moral intuitions were related to punishment ideology, moral intuitions were largely unrelated to judicial sentencing decisions, with a few exceptions. We interpret the results as suggesting that while moral and ideological preferences may be relevant under some circumstances, the role of morality in judicial decision-making may be constrained by legal or organizational factors.

Workplace Violence Against Nurses in Canada: A Legal Analysis.

Workplace violence against nurses is a significant global occupational health problem, with incidents of violence increasing in frequency since the COVID-19 pandemic began. In this article, we provide a review of recent legislative amendments meant to bolster workplace safety in health care in Canada, analyze legal cases where nurses were the victims of violence, and discuss what these legal reforms and decisions reveal about how nurses' work is treated within the Canadian legal system. Under criminal law, the limited number of cases we could find with oral or written sentencing decisions show that, historically, the fact a victim was a nurse was not always considered an aggravating factor on sentencing. Recent legislative amendments make this a specified aggravating factor and it is important to track the impact of these amendments when judges exercise their discretion in sentencing. Under employment law, it appears that, despite the government's efforts to increase the deterrence factor under legislation with significantly increased fines for employers who fail to protect their employees from injury, courts remain reluctant to impose such sanctions. In these cases, it is also important to track the impact of harsher penalties. We conclude that combating the widespread normalization of workplace violence in health care, and specifically against nurses, is acutely needed to help ensure that these ongoing legal reforms aimed at improving the safety of health workers are effective.

Discretion and Deterrence in Tax Sentencing After Rita, Gall and Kimbrough–Opportunities for Alternative Sentences and Potential Abuse

In 2007, the 3rd Circuit, on appeal, vacated and remanded the nonincarceration sentence of criminal tax defendant William Tomko Jr. in an opinion notable for its outrage and disgust at the sentencing court's order of probation and home confinement (in a luxurious home built with the proceeds of Tomko's criminal tax evasion). In 2008, the District of Columbia Circuit, on appeal, affirmed a non-incarceration sentence for criminal tax defendant Gus Gardellini, in an opinion that permitted Gardellini to serve his term of probation at his then-current home in Belgium, and noted that he had already "suffered substantially" due to his prosecution. The Tomko court was convinced that deterrence of similar tax crimes required incarceration and the Gardellini court noted with approval the sentencing court's belief that publicity was a sufficient deterrent to potential criminal tax offenders, and maintained that a focus on deterrence above all other sentencing factors was a mistake.Aside from the individual characteristics of the offenders and judges, and the passage of one year, what accounted for the dramatic turn-about in federal appellate sentencing review (and the growing number of sentencing, and sentencing appeal, opinions in 2008 sharing Gardellini's flexibility)? The answer resides in the Supreme Court's 2007 and 2008 sentencing guidance that enhanced judicial discretion and allowed for this dramatic change in sentences upheld on appeal.

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.

Sanctions for Intimate Partner Sexual Violence: Is the Law on the Books the Law in Action?

Intimate partner sexual violence (IPSV) is common, yet in many jurisdictions the law still does not adequately recognize it. In those jurisdictions that have formally criminalized IPSV, little is known about the extent to which IPSV-related law on the books is implemented in practice. Especially scarce is systematic quantitative evidence on the processing of IPSV cases by the justice system. We investigate unique case-level court data on the processing and sanctioning of violent sex crime cases in Belgium, a jurisdiction where the law adequately criminalizes IPSV, but where criminal judges are afforded broad sentencing discretion. Our data allow us to observe both the conviction and the sentencing decision. Consequently, we are able to address the endogenous sample selection concerns that arise in the assessment of IPSV-related sentencing disparities by estimating a full-fledged sample selection model. Upon inclusion of a broad range of defendant, victim, and other case controls, we show that defendants who are the victims' spouses or partners receive statistically significantly shorter prison sentences than defendants who are unrelated to the victims, in the sense that they are neither the victims' current or former spouses nor family. The documented extralegal disparity is quantitatively noteworthy and survives a series of robustness checks as well as alternative model specifications. Our analysis thus lends empirical credibility to the perspective that while national legislatures have often been slow to address IPSV, the justice systems may be even slower at internalizing the corresponding law. Our evidence-based insight into de facto legal responses to IPSV is of direct relevance to many jurisdictions globally.

PULL THE TRIGGER: United States v. Corner and Judicial Discretion in Drug Sentencing Under the First Step Act

ABSTRACT There are drug offenders sentenced under the outdated 100-to-1 powder-to-crack disparity. The ratio represents the amount of powder cocaine versus crack cocaine necessary to trigger the federal mandatory-minimum sentence. The First Step Act of 2018 (“FSA ’18”) makes the Fair Sentencing Act of 2010 (“FSA ’10”) guidelines retroactive. Under FSA ’10, the ratio is 18-to-1. FSA ‘18 provides retroactive relief for drug offenders who did not benefit from FSA ’10. Sentencing reduction under FSA ‘18 is important because the crack-cocaine disparity has had a negative impact on the African American community due to the disproportionate application to Black offenders. Sentencing before the Fair Sentencing Act was widely criticized as racially motivated and lacking empirical support. The progressive legislation is ineffective without proper exercise of judicial discretion. The author uses legislation, scholarly articles analyzing the legislation and its impacts, United States Sentencing Commission (“USSC”) reports, an informal interview with a prior offender, federal court cases, articles by reform advocates, and the appellate court decision in United States v. Corner. The legislation, USSC reports, and scholarly articles indicate lack of empirical support for the 100-to-1 rule. USSC reports continuously advocated for a decreased ratio and support the theory that the disparity is racially motivated. The prior-offender interview provides a first-hand account of the application of the outdated disparity. The reform-advocate articles support the conclusion that the disparity is a grave injustice that was racially motivated. All research indicates the importance of proper application of FSA ’18. The author concludes that the appellate court came to the correct conclusion in determining the level of judicial discretion in drug sentencing. In United States v. Corner, the Seventh Circuit Court of Appeals interpreted FSA ’18 and the discretion vested in district court judges considering sentence reduction. The court concluded that courts must determine offender eligibility and impose a new sentence under the new guidelines. The court held that district court judges maintain discretion to grant the sentence reduction.

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"

Algorithmic Risk Assessment in the Hands of Humans

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing. We find that judges' decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores. However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less. Risk assessment's failure to reduce recidivism is at least partially explained by judicial discretion in its use. Judges systematically grant leniency to young defendants, despite their high risk of reoffending. This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability. Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors. Since one of the most important inputs to the risk score is effectively off-limits, risk assessment's expected benefits are curtailed. We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most. We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm. Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23. In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.

Algorithmic Risk Assessment in the Hands of Humans

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing. We find that judges' decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores. However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less. Risk assessment's failure to reduce recidivism is at least partially explained by judicial discretion in its use. Judges systematically grant leniency to young defendants, despite their high risk of reoffending.This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability. Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors. Since one of the most important inputs to the risk score is effectively off-limits, risk assessment's expected benefits are curtailed. We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most.We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm. Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23. In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.

"Felony assault should stick:" Assaulted EMS responders' frustration and dissatisfaction with the legal system.

IntroductionThe prevalence of violence to first responders is reported in ranges of approximately 40% to 90%. Pennsylvania has a felonious assault statute to address such violence, but the prosecutorial process has been noted to cause first‐responder dissatisfaction.MethodsAn exploratory qualitative study using individual interviews with snowball sampling was conducted with the Philadelphia District Attorney's office to understand the prosecutorial process when a first responder is assaulted and injured in a line of duty. The Philadelphia Fire Department provided a list of first responders who sustained a work‐related injury from a patient or bystander assault so that particular cases could be discussed during the interviews.ResultsEmergent themes fell into two categories: factors that lead to a charge (prosecutorial merit, intent, and victim investment), and the judge's discretion in sentencing (“part of the job” mentality, concern for the defendant, and the justice system's offender focus). Immediately actionable tertiary prevention recommendations for fire departments, labor unions, and district attorney's offices were developed.ConclusionViolence against fire‐based emergency medical service (EMS) responders is a persistent and preventable workplace hazard. While felonious assault statutes express society's value that it is unacceptable to harm a first responder, this study found that such statutes failed to provide satisfaction to victims and that support when going through the court process is lacking. Assaulted EMS responders, their employers, and labor unions would benefit from the recommendations provided herein to help them extract a stronger sense of procedural justice from the legal process.

Mandatory sentencing? Use [with] discretion

When asked about sentencing discretion and mandatory sentences, jurors participating in the Victorian Jury Sentencing Study expressed strong support for sentencing discretion and weak support for mandatory sentences despite a belief by jurors that, in general, sentences are too lenient. This strengthens the argument that polls that pose a general question about mandatory sentences or sentencing severity divorced from the context of a specific case are an inadequate and misleading measure of public opinion.

In Defence of Substantial Sentencing Discretion

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical–political grounds.

In Defense of Substantial Sentencing Discretion

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical-political grounds.

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