Sentencing Discretion Research Articles

Beyond Remorse: True Acceptance of Responsibility and a Proposal for the Reform of Section 3E1.1 of the Federal Sentencing Guidelines

The Federal Sentencing Guidelines, introduced in 1987, are a valuable tool for some prosecutors but an albatross around the necks of others. While some commentators laud the guidelines for their transparency and horizontal equity in sentencing, others feel they inhibit justice by limiting prosecutorial discretion in sentencing. Most people who study or have contact with the Guidelines have a strong opinion about their effects on criminals, justice, and society. However, one of the more powerful aspects of the guidelines remains mainly under the radar of academics and the public alike. Section 3E1.1 grants downward adjustments in sentencing when the defendant accepts responsibility for his or her crimes. But what does it mean to accept responsibility, and when should this downward adjustment be granted? While Section 3E1.1 could be used as a powerful tool to reform the defendant, it is generally treated as an automatic benefit, given to almost all defendants who plead guilty in the federal system.

Plea Bargains Only for the Guilty

A major concern with plea bargains is that innocent defendants will be induced to plead guilty. This paper argues that the law can address this concern by providing prosecutors with incentives to select cases in which the probability of guilt is high. By restricting the permissible sentence reduction in a plea bargain the law can preclude plea bargains in cases where the probability of conviction is low (L cases). The prosecutor will therefore be forced to - (1) select fewer L cases and proceed to trial with these cases; or (2) select more cases with a higher probability of conviction (H cases) that can be concluded via a less-costly plea bargain. As long as the probability of conviction is positively correlated with the probability of guilt, this selection-of-cases effect implies a reduced number of innocent defendants that accept plea bargains. We argue that the Federal Sentencing Guidelines in fact achieve, albeit inadvertently, this socially desirable selection effect. We further argue that more limited discretion in sentencing facilitates the selection-of-cases effect. In this respect, the Federal Guidelines are superior to the state-level guidelines that leave considerable room for discretion in sentencing.

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.

Limiting Sentencing Discretion: Has there been a paradigm shift?

Limiting Sentencing Discretion: Has there been a paradigm shift?

Informing the discretion: the sentencing information system of the judicial commission of New South Wales

The unfettered sentencing discretion of a judge is a cornerstone of criminal justice in common law jurisdictions. However, with the growing complexity of laws and, in some cases, an increase in the amount of criminal matters, some jurisdictions have restricted the discretion by imposing guidelines on sentencing. The New South Wales approach has been different. It has established a sentencing information system to provide judges with legal, factual and statistical data. The purpose of the system is not to curtail discretion, but to better inform it, and so achieve consistency of approach throughout the jurisdiction. This article traces the development of the New South Wales system, analyses the technology used and the types of data assembled, and provides a hypothetical case study to provide readers with an insight into how it works.

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.

The Judge's Discretion in Sentencing: Israel's Basic Laws and Supreme Court Decisions

In the Israeli legal system, trial courts determine offenders' punishments. Israeli law only sets maximum penalties for crimes and offenses, and rarely provides for mandatory punishment. Even the few instances of mandatory punishment are subject to the judicial discretion recently bestowed by amendment 39 of the Penal Law authorizing the court to impose a sentence lighter than the mandatory punishment, under special circumstances. The broad discretion bestowed by amendment 39 created a situation in which in practice the law would no longer provide for substantive mandatory sentencing. In view of this, the reform of amendment 39 was revised before it went into effect by Amendment 44 of the Penal Law. The current law stipulates that under mitigating circumstances the court may set a penalty lighter than the mandatory one prescribed by law, but that the court must state its reasons for so doing. Discretion is witheld in cases of mandatory life imprisonment for murder, the most important instance of mandatory punishment in our legal system. The law further stipulates that only in three well-defined circumstances may the court pass a reduced sentence for murder.

Determinate Sentencing and Administrative Discretion Over Time Served in Prison: A Case Study of Florida

The national movement for determinate sentencing, which began in the late 1960s, is rooted in two related principles: that the sentence imposed in court should bear a reasonable resemblance to the sentence served and that postconviction administrators should have little or no discretion over the duration of incarceration. This case study examines the forces that drove policymakers in Florida, where determinate sentencing was enacted in 1983, to violate both principles. In 1993, the state's determinate sentencing structure was revamped to rectify these fundamental deficiencies, but recent amendments suggest that the demise of administrative early release may be short-lived.

The Reassessment and Remaking of Pennsylvania's Sentencing Guidelines

In 1973 Judge Marvin Frankel wrote an influen tial book called Criminal Sentences: Law without Order. In it he took to task the inconsistent, and sometimes absurd, sentences imposed by judges as a result of their unfettered sentencing discretion. He was the first to propose the creation of a on Sentencing, an agency charged with responsibility to study sentencing and develop rules governing sentencing. Frankel argued that such a commission must remain flexible and be able to adapt to changing circumstances. The product of such a commission, which in most states was a set of sentencing guide lines, would be subject always to ongoing revision.1 FrankeTs vision of ongoing flexibility has taken form in Pennsylvania. After a decade of guideline experience, the Pennsylvania Commission on Sentencing undertook a comprehensive evaluation that resulted in a completely revised set of sentencing guidelines. The purpose of this article is to review Pennsylvania's process from the genesis of its reassessment effort through the adoption of the guidelines.

The Failure of Sentencing Guidelines: A Plea for Less Aggregation

To a considerable extent, the Federal Sentencing Guidelines have substituted punishment based on aggregations of similar cases for individualized punishment. This paper argues that the movement from individualized to aggregated sentences has marked a backwards step in the search for just criminal punishment. Some things are worse than sentencing disparity, and we have found them. The paper does not, however, advocate a return to the pre-guidelines system of broad sentencing discretion. Instead, it proposes a less ambitious system of sentencing guidelines?one in which a sen tencing commission's resolution of specific, recurring sentencing issues and of paradigmatic cases would provide benchmarks for sentencing judges. Aggregation?the treatment of many cases all at once?is often appropriate. Indeed, all legal rules aggregate. Treating unlike cases alike sometimes can promote economy and simplicity of administration. The federal sentencing guidelines, however, do not save work or money. To the contrary, 90 percent of the judges who responded to a survey by the Federal Courts Study Committee reported that the guidelines had made sentencing procedures more time consuming. In addition, our overburdened federal appellate courts now decide thousands of cases each year concerning application of the guidelines.2 The principal argument for the sentencing guidelines has not been simplicity or ease of admini stration. It has been that, although aggregated sentences may prove unjust in many cases, guide lines limit the play of judicial personality and inhibit discrimination on invidious grounds. The injustice produced by grouping unlike cases, in other words, has been justified as a means of promoting equality and preventing greater injustice.

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

Norm Versus Discretion in Sentencing

Should judges have discretion in sentencing? The answer cannot be “yes” or “no” but only the further question “how much?”. The bulk of this statement will be devoted to this second question, but I will first explain why there is no absolute answer to the issue of judicial discretion in sentencing.Most legal systems grant the sentencing judge (practically) unlimited freedom to choose among a vast array of dispositions in any given case. Legal standards guiding their decision-making are typically non-directive, vague, or non-existent. The result, not unexpectedly, is a great disparity in sentencing outcomes. This state of affairs can best be explained in terms of unquestioned tradition and judicial self-image.

The Failure of Sentencing Guidelines: A Plea for Less Aggregation

To a considerable extent, the Federal Sentencing Guidelines have substituted punishment based on aggregations of similar cases for individualized punishment. This paper argues that the movement from individualized to aggregated sentences has marked a backwards step in the search for just criminal punishment. Some things are worse than sentencing disparity, and we have found them. The paper does not, however, advocate a return to the pre-guidelines system of broad sentencing discretion. Instead, it proposes a less ambitious system of sentencing guidelines?one in which a sen tencing commission's resolution of specific, recurring sentencing issues and of paradigmatic cases would provide benchmarks for sentencing judges. Aggregation?the treatment of many cases all at once?is often appropriate. Indeed, all legal rules aggregate. Treating unlike cases alike sometimes can promote economy and simplicity of administration. The federal sentencing guidelines, however, do not save work or money. To the contrary, 90 percent of the judges who responded to a survey by the Federal Courts Study Committee reported that the guidelines had made sentencing procedures more time consuming. In addition, our overburdened federal appellate courts now decide thousands of cases each year concerning application of the guidelines.2 The principal argument for the sentencing guidelines has not been simplicity or ease of admini stration. It has been that, although aggregated sentences may prove unjust in many cases, guide lines limit the play of judicial personality and inhibit discrimination on invidious grounds. The injustice produced by grouping unlike cases, in other words, has been justified as a means of promoting equality and preventing greater injustice.

Imprisonment, Fines and Diverting Offenders from Custody: Implications of Sentencing Discretion for Penal Policy

By analysing long‐run trends in the courts' use of custodial sanctions, this paper compares the reasons for the limited success in diverting adult offenders from imprisonment by increasing the use of fines during the late 1950s and 1960s, and the subsequent replacement of fines by imprisonment as the range of alternatives to custody expanded. These changes are explained by the role of information and previous sentencing practices in reducing uncertainly in the sentencing environment, Additionally, it is argued that statutory limitations are insufficient to compel sentencers to change practices. The effects of the Criminal Justice Act 1982, with implications for the Criminal Justice Act 1988, on the sentencing of young adults are given as an illustration of this point.

Impact of the revision of DUI legislation in Alabama.

On May 19, 1980, a major revision in the Alabama DUI laws went into effect which gave judges greater discretion in sentencing. This revision resulted in an increase in the proportion of DUI convictions, a reduction in the number of DUI citations reduced to reckless driving, a reduction in the proportion of offenders acquitted and/or dismissed, an increase in the proportion of revocations, and an increase in court referrals to an educational program on the first offense. However, the 1980 revision was accompanied by a significant increase in the percentage of alcohol-related accidents. Consequently, the Alabama legislature revised the 1980 law on July 29, 1983, the revision taking effect immediately. The more stringent penalties in the new law apparently had a positive effect on all six alcohol-related measures cited above. Most importantly, the latest revision was accompanied by a significant decrease (2.80%) in the proportion of alcohol-related accidents.

Criminal Justice Discretion as a Regulatory System

Previous articleNext article No AccessCriminal Justice Discretion as a Regulatory SystemStephen J. SchulhoferStephen J. Schulhofer Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 17, Number 1Jan., 1988 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/468121 Views: 40Total views on this site Citations: 31Citations are reported from Crossref Copyright 1988 The University of ChicagoPDF download Crossref reports the following articles citing this article:Carla Sepulveda, Javier Wilenmann Structuring prosecutorial power, Legal Studies 119 (Apr 2022): 1–16.https://doi.org/10.1017/lst.2022.14Anne Metz, John Monahan, Luke Siebert, Brandon Garrett Valid or voodoo? 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King, Cassia Spohn Sociolegal Approaches to the Study of Guilty Pleas and Prosecution, Annual Review of Law and Social Science 12, no.11 (Oct 2016): 479–495.https://doi.org/10.1146/annurev-lawsocsci-110615-084755Jennifer Arlen Prosecuting Beyond the Rule of Law: Corporate Mandates Imposed through Deferred Prosecution Agreements, Journal of Legal Analysis 8, no.11 (Jun 2016): 191–234.https://doi.org/10.1093/jla/law007Alexander Lundberg Sentencing discretion and burdens of proof, International Review of Law and Economics 46 (Jun 2016): 34–42.https://doi.org/10.1016/j.irle.2015.12.002Alexander Libman, André Schultz, Thomas Graeber Tax Return as a Political Statement, Review of Law & Economics 0, no.00 (Jan 2016).https://doi.org/10.1515/rle-2014-0017Lee Ellis, Anthony W. 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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.

Recent Book: Judicial Discretion in Sentencing by Judges and Magistrates

Recent Book: Judicial Discretion in Sentencing by Judges and Magistrates

Sentencing Versus Prosecutorial Discretion: the Application of a New Disparity Measure

While the term disparity arises naturally and is used frequently in discussions of discretion and fairness in criminal processing, little attention has been given to formulating precise quantitative indicators of it. This article illustrates the application of a recently developed technique for measuring disparity. Prosecutorial and sentencing decisions governing the dispositions of 2,234 convicted felons in a single jurisdiction were used to esti mate the amount of variability in sanction severity attributable to (1) "legit imate" factors of offense seriousness and prior record, (2) sentencing discre tion, and (3) prosecutorial discretion. Approximately one-half of the total variability in sanctions was at tributable to offense seriousness and prior record. Under the assumption that all of the remaining, unexplained variation could be attributed to sentencing and plea bargaining discretion, it was found that sentencing decisions ac counted for a substantially greater proportion of variability than did plea bar gaining decisions. Implications for the development of valid disparity measures are discussed.

An argument for self-imposed explicit judicial sentencing standards

Despite considerable attention, unwarranted disparity in sentencing remains a major and pervasive criminal justice problem. In this paper the argument is made that the most appropriate remedy lies not in an attempt to eliminate judicial sentencing discretion, but rather through the development and articulation of explicit sentencing standards or guidelines. Building upon the experience gained in a recent study with the United States Board of Parole, a model is put forth for the development and articulation of sentencing policy on a district or circuit basis that could be applied to structure and control discretion without removing individual case consideration.