Sentencing Laws Research Articles

Apprendi Land Becomes Bizarro World: 'Policy Nullification' and Other Surreal Doctrines in the New Constitutional Law of Sentencing

Imagine a final exam essay answer in constitutional law which sets forth doctrinal principles like the following: Decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings. Appellate review of trial court decision-making is unconstitutional. Courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law; in fact, it is probably unconstitutional to enact legislation expressly compelling courts to follow the legislature’s non-constitutional policy preferences. One might expect such an exam answer to receive an F - but if the exam question involved the United States Supreme Court’s new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land - which has now become Bizarro World. This article examines and criticizes these and other surreal doctrines in the Court’s decisions, and argues that the Court must abrogate its expansion of Apprendi doctrine to restore most issues of sentencing policy to non-constitutional status.

Reforming California Sentencing Laws: A Judicial Perspective

154 Federal Sentencing Reporter, Vol. 22, No. 3, pp. 154–157, ISSN 1053-9867 electronic ISSN 1533-8363. ©2010 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2010.22.3.154. Reforming California Sentencing Laws: A Judicial Perspective

MODEL PERADILAN RESTORATIF DALAM SISTEM PERADILAN ANAK (Kajian tentang Praktik Mediasi Pelaku dan Korban dalam Proses Peradilan Anak di Wilayah Hukum Balai Pemasyarakatan Purwokerto)

Legal fundament of implementation of restorative justice in the phase investigation of juvenile justice system in Indonesia stated in article 5 sentence (1) Law No. 8 Year 1981 concerning KUHAP; article 42 Law No. 3 Year 1997 concerning juvenile court, article 16 sentence ( 1) letter (l), sentence (2) and article 18 Law No. 2 Year 2002 concerning Police Department of Republic of Indonesia, Confidential Telegram of Kabareskrim No. Pol. TR/359/DIT,I/VI/2008. Mediation Perpetrator and Victim in the course of Jurisdiction of Child in jurisdiction territory of prison in Purwokerto, in the form of peace among victim and perpetrator of this child, is conducted in inspection phase, is in prosecution phase and inspection of justice have never been conducted by mediation. Implementation of Mediation in case of child in Jurisdiction territory of Bapas Purwokerto, not yet earned a Restorative Justice Model. This Matter is based on fact that goals of this mediation practice tend to only aim to decontrol continuation. Kata kunci: Juvenile Justice System; Restorative Justice Model; Mediation; prison

PENEGAKAN HUKUM NETRALITAS PEGAWAI NEGERI SIPIL (PNS)

Basically, the substance of democracy is the existence of role/active participation in the governance based on independence, equality and freedom. Somehow in new era, this strategic position of public servant was used by political party which finally makes political problems in the conception of law enforcement and makes confusedness to the role of public servant. Finally, the government make coherent regulation concerning with the neutrality in the public service law. Arrangement of public service neutrality, arranged in article 3 sentence (2) and sentence (3) Law No. 43 Year 1999 and Government Regulation No. 37 Year 2004 concerning prohibition order of public servant becoming political party member and official member. The regulation only arranging concerning public servant becoming member and official member of political party, while public servant which was nonmember of political party, what exactly more loyal in political party not yet been arranged in that regulation. The regulation which straightening of neutrality arrange in the preamble which public servant that impinge this regulation not yet arranged to collision, though sanction to this regulation was riffed as public servant, for public servant that becoming member and official member of political party. Keyword: Neutralities, political party, law enforcement

“Knowing the ledge”: Participatory action research as legal studies for urban high school youth

Zero-tolerance discipline policies, harsh sentencing laws, and the gentrification of communities of color have devastating effects for the lives of young people. Coupled with the fact that urban schools can devalue their views, values, and understandings of the world, this article examines an effort to challenge deficit theories that permeate discussions on urban youth. Through the setting of a street law class at a high school with a social justice focus, two facilitators (an African American male and a Latina of Puerto Rican descent, one a qualitative sociologist and the other a lawyer, both trained as qualitative researchers) and a group of high school freshmen analyze the processes of the judicial system to analyze their lives through the tenets of participatory action research.

Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform

Recent years have seen significant changes in sentencing law: determinate sentencing schemes and mandatory enhanced sentences have largely displaced discretionary sentencing regimes operating within broad sentencing constraints. Commentators have variously lamented and applauded the advent of both determinate sentencing and mandatory penalties, yet the interaction of these two innovations has been left largely unexamined. Professor Lowenthal provides an analysis of the perverse consequences that ensue when sentencing, guidelines are paired with mandatory sentencing: the very consistency and proportionality that these changes were supposed to engender can be undercut when the two sentencing approaches are combined. Mandatory sentencing emphasizes a single aggravating factor, contrary to determinate sentencing, which directs judges to a whole complex of factors. Mandatory sentencing also is applied unevenly, with those exercising their right to trial often receiving harsher penalties. Thus, a factor that should not be detrimental under determinate sentencing, such as exercising one's constitutional right to trial, is detrimental under mandatory sentencing. In sum, the goals of determinate sentencing-consistent punishment for like crimes and proportional punishment for different crimes-are greatly undermined by mandatory sentencing. Professor Lowenthal concludes by arguing for legislative changes to ameliorate the harsh and undesired effects of mandatory sentencing measures.

DOJ's Attack on Federal Judicial Leniency, the Supreme Court's Response, and the Future of Criminal Sentencing

The last few years have brought some equilibrium to the power struggle in the federal system between prosecutors, judges, and Congress over criminal sentencing. Though pieces of this story have been shared and various Supreme Court sentencing cases analyzed, our unique contribution is to explain how and why a true sentencing reform movement that began in the mid-1980's was co-opted by conservative politics at the federal level at the turn of this century, thereby eliminating one avenue of change entirely for all federal and state actors. Part I belongs to Main Justice. (see Note below) It was during the early days of George W. Bush's administration that the Department of Justice began its all-out assault on the federal judiciary's sentencing powers as part of a campaign to consolidate central authority and to require the harshest possible sentences for all federal convictions. DOJ's campaign was played out in numerous arenas at the same time: (1) in Congress, where DOJ urged the adoption of laws addressing the problem of leniency of district court judges; (2) before the U.S. Sentencing Commission (Commission), which DOJ chided for not doing enough about the leniency problem; and (3) even among its own field offices by attempting to virtually eliminate the traditional charging discretion exercised by prosecutors and instead mandating that all federal prosecutors bring the most serious charges provable. Eventually, as the straw that broke the Court's back, the Department succeeded in prompting Congress to enact the Feeney Amendment, a piece of legislation that was viewed as a frontal assault on the discretion of federal judges in sentencing. Though the show is far from over, the Supreme Court regained the upper hand over both DOJ and Congress, as we explain in Part II, by trumping Congress's legislation (and DOJ's political agenda) on constitutional grounds. In United States v. Booker the Court upheld the overall constitutionality of the federal sentencing system but only on the condition that the Guidelines be applied in a purely advisory manner, subject to extremely weak appellate review for reasonableness. The Supreme Court gave the power over sentencing that Congress had transferred to DOJ back to judges. The Court reaffirmed that position in a series of additional Sixth Amendment cases decided in the October 2007 and 2008 Terms: Gall v. United States, Kimbrough v. United States, (both heard in the October 2007 Term) and Spears v. United States, (heard in the October 2008 Term) firmed federal district judge discretion through rigid limits on appellate reversals. The Court appeared far less concerned with the effects of its opinions on state criminal justice systems. This was sensible, as most states don't have mandatory sentencing guideline systems or presumptive sentencing systems, those states that do build more judicial flexibility in their systems, and state legislators are not at war with their judiciary, the Court's new constitutional rulings in fact had significantly less effect on state than on federal sentencing. This is not to say, as we note in Part III, that the Court entirely ignored the states; two recalcitrant states were pointedly reminded of the Blakely/Booker rule, and the Court in its most recent sentencing decision, Oregon v. Ice, (heard in the October 2008 Term) granted state trial judges even more discretion through the practice of imposing concurrent or consecutive sentences for multiple offenses. As a result of the last few terms, many of the recent victories that the Department enjoyed in the political arena it lost in the courts. Under the administration of Attorney General Alberto R. Gonzales, the Department continued its push for more stringent punishments, but changes in circumstances required a new approach. Congress considered and rejected new legislation that might constitutionally replicate DOJ's earlier coup. When DOJs Republican allies in Congress lost their majority position after the 2006 elections, the push for harsher punishments slowed considerably. We expect Attorney General Eric Holder to back away from harsh sentencing laws and tight control over Assistant United States Attorneys (AUSA) in the field. We now see federal district judges sentence below the range provided in the federal sentencing guidelines with building frequently, yet not ignore the guidelines. Though states judges never suffered in the same manner, we expect state legislators to react to the new constitutional requirement by increasing state judicial discretion in sentencing through advisory rather than mandatory guidelines, and expanding judicial authority to stack sentences. Note: This is the not always respectful designation of the Attorney General, other political appointees, and trial attorneys working on Pennsylvania Ave. and other downtown D.C. locations, as distinguished from the 94 U.S. Attorney's Offices located throughout the United States.

Toward a Common Law of Sentencing: Gall, Kimbrough, and the Search for Reasonableness

The recent Supreme Court opinions in Gall and Kimbrough failed to clarify the long-open question of defining" reasonableness" in the Federal Sentencing Guidelines following Booker. However, if we abandon the fruitless search for reasonableness and focus instead on the creation of a federal sentencing common law, Gall and Kimbrough have much to offer.

Using Sentencing to Clean Up Criminal Procedure: Incorporating Remedial Sentence Reduction into Federal Sentencing Law

Using Sentencing to Clean Up Criminal Procedure: Incorporating Remedial Sentence Reduction into Federal Sentencing Law

Moral, Prudential, and Political Arguments about Harm Reduction

A May 28, 2007 New York Times story profiled Ron Daniels, director of Prevention Works, a syringe exchange in Washington, DC. The front-page story depicted Daniels' journeys through low-income neighborhoods in his Winnebago van, as he distributed sterile syringes and other supplies to injection drug users. Himself infected with HIV from a contaminated syringe, Daniels was operating Washington's only syringe exchange. Local health clinics had provided similar services until 1998, when Congress, which enjoys special authority over the United States' capital city, explicitly forbad the DC government from financing these services.* Defending such stringent policies, Missouri Congressman Sam Groves stated: We need to fight drugs, not show people they can be used in a safe manner.1Why is the United States so resistant to public health strategies that find wide acceptance in many other wealthy democracies? This old question remains pressing. More important, given our history of missed opportunities to reduce the harms connected with HIV/ AIDS, can we do better?In part, American resistance reflects stringent views towards foundational questions of drug policy. Federal sentencing guidelines consider a 5-gram sale of crack to merit greater penalty than attempted second-degree murder that results in serious injury to the victim.2 In some cases, nonviolent firsttime offenders receive mandatory minimum sentences of 25 years or more that exceed penalties imposed for homicide, attempted hijacking, and other violent offenses.34Although few ballot initiatives to allow medical marijuana or to overturn harsh sentencing laws ultimately succeed, their continued popularity suggests that many voters believe that American drug policy has lost its way. So, in more quiet ways, do the majority arguments in recent Supreme Court rulings that grant judges greater discretion to depart from federal guidelines in sentencing crack offenders.5Some critics go further. Mill's harm principle can (but does not have to) be interpreted to support principled objection to government regulation of drug use.67 Most academic researchers are critical of punitive drug policies, but nonetheless accept the right of government to outlaw or to stringently regulate some substances likely to cause severe and likely harm.689Under any feasible policy regime, some citizens will consume heroin, cocaine, or other intoxicating substances. Whether such consumption occurs inside or outside legal boundaries, societies have strong practical reasons to address the accompanying harms. Striking the right balance between deterrence and compassion is an enduring tension in drug policy.This article considers how the public health community might better-address this tension, given the embattled politics that surround efforts to assist substance users. This article mainly focuses on the United States. Several other wealthy democracies have achieved greater success in similar policy domains. I hope that this article reflects lessons learned in European, Canadian, and Australian settings, and that some insights presented here may be useful for other settings. Detailed analysis of harm reduction outside the United States is beyond the scope of the current article.Drawing on terminology advanced by MacCoun and Reuter, this article first describes the term harm reduction, and some of its accompanying complexities. It then describes the political controversy over needle/syringe distribution programs (NSPs) within the United States, and why the term harm reduction and accompanying interventions have proved so politically embattled in this country. It suggests that the public health community has stumbled in its efforts to sidestep the moral and cultural politics of harm reduction, and that more explicit arguments rooted in the humanity of drug users are essential to enact more reflective and humane public policies.Much confusion arises because the single term harm reduction connotes several different things to different authences: a guiding set of questions for policy analysis, a convenient moniker for particular HIV prevention interventions, a unifying slogan of a disparate political movement of activists, public health practitioners, and scholars seeking less punitive drug policies. …

Dialogic Allocution: Deliberative Democracy in Sentencing Law

This Article argues in favor of increasing the scope of the national sentencing dialogue in order to remedy the current sentencing defects. The increase in scope hinges on expanding the role of allocution within criminal sentencing. By treating allocution as seriously as the Federal Rules do, new discussants will contribute specific solutions for the defects, while at the same time enhancing institutional and ontological legitimacy. To achieve that end, the Article proposes a modified view of allocution. This dialogic allocution unifies the judge and defendant as co-discussants in the national debate, rather than pitting them against each other. The Article provides a method for incorporating dialogic allocution into current practice and then seeks to answer unresolved questions.

EFEKTIVITAS SISTEM PERADILAN SEDERHANA, CEPAT, DAN BIAYA RINGAN DI LINGKUNGAN PERADILAN UMUM

Article 5 sentence ( 2) Law No. 4 Year 2004 concerning Judicial Power stated that the court help all searchers of justice and overcoming all barricade and resistance to reached the simple, quick, and light expense jurisdiction, so the system of judicature can be effective and efficient. There are some factors that influence the function of law in the society or make effectiveness of the law enforcement which are: substance of law, law enforcement, facility, and also society factor that the law environment applied. Keyword: Simple, quick, and Light Expense Jurisdiction

California’s Correctional Paradox of Excess and Deprivation

Rapidly expanding prison populations in California have brought a host of management challenges. One in seven state prisoners is housed there. California spends more than $9 billion a year on its correctional system, yet 66 percent of released inmates return to prison within 3 years. Prison assaults, homicide, and suicides are more common in California than nationally, fueled by a growing number of gang‐affiliated prisoners and inmates serving long “three strikes” sentences. Few improvements have occurred despite a much‐touted reform effort beginning 2003. Some blame the politically potent prison guards union, because guards' high salaries leave little funding for inmate programs. Others blame California’s determinate sentencing law, which makes parole release automatic. California needs to reverse its 3‐decade‐old determinate sentencing law, establish a sentencing commission, implement evidence‐based rehabilitation programs, adopt a parole violation decision matrix, invest in intermediate sanctions, and work collaboratively with communities on reentry programs.

Mandatory sentencing and the role of the academic

The 1990s witnessed an increase in the number of mandatory sentences created around the common law world. Australia was part of this trend and along with England1 adopted versions of the United States three strikes laws. Canada also passed a record number of mandatory sentences between 1982 and 1999.2 In Australia during the 1990s, mandatory sentencing laws for property offences were enacted in Western Australia and the Northern Territory in response to a moral panic based on a perception that the criminal justice system was not taking victims rights seriously, and that sentencing courts were passing inconsistent and excessively lenient sentences as a consequence of taking into account factors such as race and socioeconomic deprivation.3 In response, from at least 1998 and through to 2002, there was a plethora of journal articles, conference papers, book chapters, reports and other commentary addressing the issue of mandatory sentencing. The torrent of publications has slowed to a trickle but the themes underlying the debate, namely discriminatory sentencing practices and legislative attempts to promote both consistency and harsher sentences remain.

Developing Contextualized Rationales for Sentencing in International Criminal Trials: A Plea for Empirical Research

The aim of this article is to illustrate how the pervading ideology of retributivism has affected the norms and practice of sentencing in international criminal trials. It examines the nature and operation of international sentencing law and procedure and the parameters set for the exercise of discretionary power, suggesting how these militate against the development of more constructive rationales for punishment because of their continued emphasis on principles of consistency and proportionality. It is argued that the rationales for international sentencing need to engage more with the aspirations for justice of victims and post-conflict societies. This would suggest a re-evaluation of punishment and a change in the sentencing practices of international criminal tribunals. The article concludes that comparative contextual analysis could provide important insights, which would be of great assistance for international sentencing.

Hindsight and the Failure of California's Uniform Determinative Sentencing Act

This paper looks at the initial goals of the Uniform Determinate Sentencing Act as it was enacted in 1976. It analyzes those goals in comparison to the program that came before it, the Indeterminate Sentencing Law. It then looks at the situation as it is today, and attempts to decipher whether any of the goals set forth by the original drafters of the sentencing law were actually accomplished.

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.

The Inextricable Link Between Age and Criminal History in Sentencing

In sentencing research, significant negative coefficients on age research have been interpreted as evidence that actors in the criminal justice system discriminate against younger people. This interpretation is incomplete. Criminal sentencing laws generally specify punishment in terms of the number of past events in a defendant’s criminal history. Doing so inadvertently makes age a meaningful variable because older people have had more time to accumulate criminal history events. Therefore, two people of different ages with the same criminal history are not in fact equal. This is true for pure retributivists, as the fact that the younger offender has been committing crimes at a higher rate of offending may make the younger offender more culpable, and is also true for those with some utilitarian aims for sentencing. Simulation results illustrate the stakes. To a certain extent, the interests of low-rate older offenders are opposed to those of high-rate younger offenders.

The Unreasonableness of "Reasonableness" Review: Assessing Appellate Sentencing Jurisprudence After Booker

Research Article| February 01 2006 The Unreasonableness of "Reasonableness" Review: Assessing Appellate Sentencing Jurisprudence After Booker Adam Lamparello Adam Lamparello Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2006) 18 (3): 174–181. https://doi.org/10.1525/fsr.2006.18.3.174 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Facebook Twitter LinkedIn MailTo Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Adam Lamparello; The Unreasonableness of "Reasonableness" Review: Assessing Appellate Sentencing Jurisprudence After Booker. Federal Sentencing Reporter 1 February 2006; 18 (3): 174–181. doi: https://doi.org/10.1525/fsr.2006.18.3.174 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. ©© 2006 BY THE REGENTS OF THE UNIVERSITY OF CALIFORNIA. ALL RIGHTS RESERVED.2006 Article PDF first page preview Close Modal You do not currently have access to this content.

International Sentencing Law: In Search of a Justification and Coherent Framework

AbstractAn international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed – fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.