Sentencing Reform Research Articles

Retention or Abolition of the Death Penalty and Public Opinion on the Death Penalty

The discussion on the death penaltys retention or repeal has been going on for a long time, and there are different views on the retention and elimination of the death punishment. Despite the international trend toward abolition, certain countries, like China, Japan, and the United States, continue to use the death sentence, and all three countries have conducted public opinion surveys on the abolition of the death sentence, and public opinion has a certain influence on the death penalty reform. This article will compare the views of Beccaria and Bentham, the representatives of abolitionism, and Kant and Hegel, the representatives of capital punishment retention, review the outcomes of popular opinion surveys on capital punishment in China, the United States, and Japan, analyze the characteristics of public opinion, and discuss the interaction between capital punishment retention and abolition and public opinion. The study about the value of public views in terms of the death sentence reform is of reference significance to the issue of whether the death penalty should be retained or abolished.

Nonequivalence Between Imprisonment and Fines in United States Sentencing Guidelines

Objective: Seeking rational uniformity and proportionality of sentencing in United States Sentencing Guidelines. The United States has been establishing and updating its sentencing guidelines and structure based on the Sentencing Reform Act since 1984, aiming to improve the ability of the criminal justice system to fight crimes through an effective and fair sentencing system. Thus the objective here is to evaluate whether that aim has been met. Method: Through normative research, the economic analysis of law was utilized to study the sentencing in the 2021 United States Sentencing Guidelines and its manual, especially comparing imprisonment and fine sentences. At the same time, comparing the imprisonment sentence and the fine sentence as the imprisonment alternative with the help of local economic variables, the minimum wage. The differentiation between the fine sentence or fines and its imprisonment alternative is calculated for each statute in the US Sentencing Fine, especially under §5E1.2.(c). (3). - Fines for Individual Defendants’ Fine Table, and combining it with the minimum and maximum values in Sentencing Table in §5A to find the differentiation value or reference value or each row to analyse if any pattern emerged. Then compare it with the second objective, the United States’s national minimum wage is used to calculate the minimum and maximum imprisonment statute to calculate the amount of money a normal person working legally in the worst condition, paid in the minimum wage, can collect in the same length amount of time. Results: This research shows that: a) there is no equivalence between imprisonment and a fine sentence in the United States Sentencing Guidelines, and b) imprisonment has lesser economic value than its alternative sentence. Both findings are against the purpose of seeking rational uniformity and proportionality of sentencing. The nonequivalence above demonstrates the structure and guidelines of the United States sentencing system, which have several excellences compared to the sentencing system of other countries, such as Indonesia’s prior Penal Code Book. However, the United States sentencing system is also flawed, which needs improvements in applying economic analysis and efforts to fix the flaws.

Milestones and Current Dilemmas: Evaluation of Sentencing Standardization for Illegal Possession of Drugs in China

It has been more than ten years since the nationwide sentencing standardization reform was implemented in China to solve the widespread problem of uneven sentencing in criminal justice. A statistical analysis of 1595 written judgments of illegal possession of drugs showed that the reform of sentencing for the standardization amount-based crimes has achieved remarkable results, and judges’ discretion has been highly normative and consistent. Under the same criminal circumstances, the degree of consistency between the amount involved in the crime and imprisonment has significantly increased, which is more in line with the standards of formal justice. However, the effect of the sentencing standardization reform declined as the amount involved in the crime increased. This exposes the shortcomings of the standardized sentencing model when considering multiple crimes; these include confusion between the amount and circumstances of a crime, the imbalance between crime and punishment, and the application of discretionary circumstances in sentencing depending on the amount involved in the crime. Therefore, it is necessary to attach more importance to the evaluation of the legitimacy of the sentencing range established by criminal law in subsequent sentencing reforms and to further refine and perfect the standardized sentencing mode, with a shift from formal justice to justice in form and substance.

Prosecutor Decision-Making Following Juvenile Life Without Parole Sentencing Reform

Prosecutors play an integral role in implementing sentencing reform measures in the United States. Following the Supreme Court’s recent restrictions of the use of life without parole sentences for juveniles (JLWOP), county prosecutors in Michigan were tasked with initiating resentencing proceedings by filing sentencing motions for individuals who were currently serving JLWOP (so-called “juvenile lifers”). These motions intimated whether, following the changes in sentencing policy, the prosecutor sought a new life without parole sentence or if they consented to the default term-of-years sentence that would allow a juvenile lifer an opportunity for release. In this paper, we analyze the best-fitting characteristics predicting prosecutor filing decisions. Guided by the focal concerns framework, we ultimately find evidence that prosecutors made filing decisions in ways that were consistent with their existing decision-making schema, relying on characteristics that aligned with typical conceptions of blameworthiness and dangerousness. Prosecutors’ decisions were not associated with characteristics reflecting the new guidance or mitigative logics provided by Supreme Court’s rulings, such as age and immaturity. We conclude that prosecutors’ implementation of sentencing reform measures is constrained by the extent that new policy parameters overlap with existing focal concerns and provide several policy recommendations for addressing this issue.

Showcase: A Data-Driven Dashboard for Federal Criminal Sentencing

The main purpose of the Sentencing Reform Act of 1984 was to provide more uniformity in sentencing and reduce interjudge disparity. Subsequently, the act created the federal sentencing guidelines to offer judges a possible sentencing range for offenses. However, since these recommendations were based on historical data, the guidelines amplified existing biases and increased inequality and the disproportionate sentencing of minorities. To address this problem, we developed an artifact called “ShowCase”—a data-driven dashboard—that is grounded in penal theory, organizational context theory, social bonds theory, and triangulation notion in design theory. The artifact helps judges make fairer and more objective decisions by integrating a variety of data points. We used a design science research methodology and mixed methods to guide the development and evaluation of the proposed dashboard. Our research inquiry revealed the legal and extralegal factors that contribute to more equitable judicial decisions. We also found support for integrating data science and more diverse viewpoints in the sentencing process. Our study shows that a validated data-driven dashboard can be used to promote fairness, objectivity, and transparency in the criminal justice system.

Congress Reforms Military Sentencing, Creating an Opportunity for a Productive Sentencing Reform Dialogue Between the Military and Civilian Criminal Justice Systems

In recently-enacted legislation, Congress drew upon the 35-year experience with sentencing reform in the federal civilian criminal courts to reform significant aspects of the sentencing process in the military justice system. The article reviews the sentencing reform provisions contained in the National Defense Authorization Act for FY2022 and the Military Justice Act of 2016, which address many of the core elements of sentencing, including: (1) the principles governing sentencing in courts-martial; (2) the use of sentencing “parameters” and “criteria” in the adjudication of sentences by general and special courts-martial; (3) the role of the military judge in the adjudication of sentences; (4) consideration of plea agreements at the trial level; (5) appellate review of sentences; (6) clemency and related actions on the sentence, and more. After summarizing the history of military and civilian sentencing, the article reviews the newly-enacted military justice sentencing provisions, comparing them to the relevant provisions in the federal civilian sentencing system that were enacted as part of the Sentencing Reform Act of 1984 and subsequent legislation, and implemented by the U.S. Sentencing Commission. Although some of these newly-enacted reforms mirror similar elements of the federal civilian sentencing system, others follow a different approach, reflecting a decision by Congress to adapt rather than simply adopt current civilian practices. As Congress, the Administration, and a new Sentencing Commission focus on criminal justice reform, including possible changes to civilian sentencing law and policy, the recent reforms in military justice sentencing provide an important source of insights worthy of consideration.

Advice to New Commissioners

As the Sentencing Commission revives after years without a quorum, a top priority should be to address a statutory duty that has been neglected since the Commission’s inception: the mandatory obligation under 28 U.S.C. § 994(g) to make recommendations regarding the Bureau of Prisons’ execution of Guidelines sentences. Since the effective date of the Sentencing Reform Act, the federal prison population has tripled, spurred on by Bureau of Prisons’ policies and practices that stint on or completely abandon ameliorative sentencing statutes. These administrative positions, implemented with no input from the Commission, effectively increase time individuals spend in prison serving Guidelines sentences, often generating unwarranted disparities among similarly situated defendants. With new Commissioners and a new Bureau of Prisons Director, now is the time for the Commission to make eleven recommendations to the BOP to use existing statutory authority to increase community corrections and reduce time in prison. The statutory bases for administrative action by the BOP cover prerelease custody (18 U.S.C. § 3624(c)), the residential drug abuse program (18 U.S.C. § 3621(e)), sentence calculations for pretrial custody credit (18 U.S.C. §§ 3585(b), 3584(a), and 3624(b)), compassionate release (18 U.S.C. § 3582(c)(1)(A)(i)), the boot camp, or shock incarceration, program (18 U.S.C. § 4046(a) and 28 C.F.R. § 524.31(b)), and earned time credits under the First Step Act (18 U.S.C. §§ 3632(d) and 3624(g)). Each of the proposed statutorily-based recommendations will ameliorate the overuse of prison while promoting rehabilitation and saving taxpayer money.

Sentencing Reform in Tanzania: Moving from Uhuru to Ubuntu?

AbstractThe scholarly literature on sentencing reform has largely overlooked the African continent. The paucity of legal scholarship is particularly striking with respect to Tanzania, one of Africa's largest and most populous countries. This article explores the first significant sentencing reform in Tanzania's history. In 2020, the Tanzanian judiciary issued a comprehensive set of sentencing guidelines for courts to follow. Until this point, sentencing was a highly discretionary stage of the criminal process, and the Tanzanian penal code offered very little guidance with respect to the exercise of that discretion. After providing a brief summary of the new sentencing regime, we explore the innovative guidance contained in the reforms. In the conclusion we discuss the extent to which the Tanzanian reforms reflect core African values of Ubuntu, or more specifically in the case of Tanzania, Ujamaa, the philosophy popularized by Tanzania's first president, Julius Nyerere.

What’s Missing? The Absence of Probation in Federal Sentencing Reform

What’s Missing? The Absence of Probation in Federal Sentencing Reform

Might Structural Changes Be the Next Step for Federal Sentencing Reform?

The landmark First Step Act was given a name intended to signal that additional criminal justice reforms should be a continued focus for federal policy makers. But more than three years later, Congress has yet to pass any new sentencing reform laws. The introduction to the April 2022 Issue of the Federal Sentencing Reporter explores what could come next in the area of sentencing reform, with a particular focus on two new federal bills proposing notable structural changes to the federal sentencing system. The proposed Sentencing Commission Improvements Act and FIX Clemency Act are both commendable because they seek to alter key structures that have contributed to massive growth in the federal prison population.

Crack 2.0

The 1984 Sentencing Reform Act charged the U.S. Sentencing Commission with developing sentencing guidelines that advanced the purposes of sentencing under 18 U.S.C. § 3553(a). After the Supreme Court cases Booker, Kimbrough, Gall, and Spears, it is now well established—at least with federal drug trafficking offenses—that the Commission did not fulfill that directive. The magnitude of that failure (coupled with some of Congress’s own misguided decisions) has previously been highlighted by the evolution of federal crack sentencing policies, the Fair Sentencing Act, the related line of Supreme Court cases, and more recently the First Step Act. Congress’s compromise correction of over twenty years (essentially a generation) of a failed war on crack did nothing to further correct similar defects with federal drug sentencing policies for other controlled substances—particularly with respect to methamphetamine. Given the resurgence of methamphetamine trafficking, use, and prosecutions, this paper will analyze post-1988 federal methamphetamine sentencing policy to illustrate how the drug-type, quantity, and purity model for punishing drug trafficking offenses still produces unwarranted sentencing disparities between similar controlled substances or different forms of the same controlled substances—and in the end plainly fails to effectively deter the targeted criminal conduct or advance the purposes of federal sentencing under 18 U.S.C. § 3553(a).

Determinate Sentencing and the Epidemic of Biases in American Courts

The 1984 Sentencing Reform Act was first put into place to direct court rulings and mitigate biases from the outcomes of sentences. By implementing universal responses to any given scenario, the ability to rule discretionally based on external factors was to be eliminated, designated to a relic of a past era. Unfortunately, the efforts were less than successful. Due in large part to the decisions made in the case United States vs. Booker in 2005, America has started its shift back to discretionary sentencing policies. The dissatisfaction with the outcomes of determinate sentencing was made clear, but the issues were not inherent with the guidelines as much as with the same issues which have plagued the country for over two centuries now. While failing to live up to its high expectations, determinate sentencing still manages to surpass discretionary sentencing measures by its structural simplicity, philosophies, and potential. In the United States, many disparities exist similarly outside of the judicial system, including wealth, race, sexual orientation, and gender disparities. With each of these segments of society, unique disproportionalities arise that have helped to highly benefit only small percentages of the community, creating a system that overall fails to reconcile and inevitably exacerbates many of the limited community resources and impacts of disparate treatment. This paper intends to display the fundamental failings of strict sentencing guidelines and purport that, while they have failed in living up to their expectations of eliminating structural inequality, the disparities exist not by failing to allow discretion, but by failing to limit these systems which perpetuate its existence.

Addressing the Issue of Race and Drug Offenses: An Analysis of the Safety Valve Provision in Federal Sentencing

ABSTRACT In efforts to understand the Sentencing Reform Act’s effectiveness on federal drug offenses, the current study seeks to determine the application of the safety valve provision in the 2013 federal sentencing data from the U.S. Sentencing Commission. To better analyze the impact of the race, ethnicity, or gender of the defendant, the current study analyzes cases where the safety valve could have been applied in three different models being race/ethnicity of the defendant, legal factors, and then extra-legal factors to understand the judge’s decision-making on applying the safety valve provision under 18 U.S.C. §3553(f). The findings show evidence of racial and gender disparity. Both Black defendants and Black male defendants are less likely to have the safety valve applied in their cases than White defendants and White male defendants. While cases involving a Hispanic defendant and a Hispanic male defendant are more likely to have the safety valve applied.

Sentencing Reform in Tanzania: Moving From Uhuru to Ubuntu?

The scholarly literature on sentencing reform has largely overlooked Africa. The paucity of legal scholarship is particularly striking with respect to Tanzania, one of Africa's largest and most populous countries. This article explores the first significant sentencing reform in Tanzania's history. In 2020, the Tanzanian judiciary issued a comprehensive set of sentencing guidelines for courts to follow. Until this point, sentencing was a highly discretionary stage of the criminal process. Courts had wide discretion, and the Tanzanian penal code offered very little guidance with respect to the exercise of that discretion. After providing a brief summary of the sentencing regime, we explore the innovative guidance contained in the reforms. At the conclusion we discuss the extent to which the Tanzanian reforms reflect core African values of Ubuntu, or more specifically in the case of Tanzania, Ujamaa, the philosophy promoted by Tanzania's first President, Julius Nyerere.

Forgotten by the Fair Sentencing Act and the First Step Act: Federal Methamphetamine Sentencing Reform

This paper explores the issue of sentencing guidelines based on outdated premises and unfair treatment and the potential impacts of drug sentencing laws and enhancements not based on empirical data. To address this problem, this paper proposes a bill, similar to the First Step Act, to both retroactively and prospectively lessen the effect of these capricious drug sentencing guidelines.

The Bureaucratic Takeover of Criminal Sentencing

Criminal sentencing in the federal courts was transformed by the Sentencing Reform Act of 1984, which launched a bureaucratic takeover of sentencing. It was an extraordinary transfer of authority from federal trial judges to the new United States Sentencing Commission, a centralized and essentially non-judicial bureaucracy. Liberals and conservatives in Congress joined to do this out of mistrust, for very different reasons, of federal judges. The Commission’s sentencing Guidelines - misnamed insofar as they were at least for a time compulsory - still loom powerfully over federal sentencing, with a distinct tilt toward severity. Although the Supreme Court in 2005 cut back the compulsory force of the Guidelines, the “gravitational pull” of the Guidelines is such that most federal sentences still conform to the Guidelines. Moreover, pressure to maintain or increase bureaucratic control over sentencing is likely to persist. This article explains how and why power over criminal sentencing was largely withdrawn from federal judges, and how this accelerated the trend toward more severe sentencing. When individual figures of authority, like judges, are mistrusted, there is a tendency to place or misplace faith in bureaucracy, with its real or imagined attributes of regularity, rationality, and impartiality. Those on the liberal or progressive Left who supported the Reform Act and the ensuing Guidelines regime might not have much reason to be pleased with the results. Those on the Right who supported the change in order to stiffen federal sentencing did, at least for a time, achieve their goal.

The Limits of Federal Criminal Sentencing Policy; or, Confessions of Two Reformed Reformers

Sixteen years after the passage of the Sentencing Reform Act, how is federal sentencing reform faring? Certainly, the Commission has done its first job of promulgating determinate sentencing guidelines to replace the previous sentencing system. Those guidelines have generated a formidable body of federal sentencing law, including thousands of judicial decisions. The reviews of that body of law are mixed, causing consternation to some and satisfaction to others. On a more fundamental policy level, there is evidence that the guidelines have advanced one of the initial objectives of sentencing reform, which was to reduce the amount of unarticulated variation in federal sentencing outcomes. But what has been learned about the sentencing process and about the efficacy of punishment, and what do those lessons imply for the future potential of sentencing reform and the continuing work of the Commission? The purpose of this Article, written by two participants in the early phases of the federal sentencing reform, is to pose those questions. We also suggest some tentative answers, based upon our experience in and subsequent observation of the progression of sentencing reform.

A Partial Fix of a Broken Guideline: A Proposed Amendment to Section 2G2.2 of the United States Sentencing Guidelines

Except for the federal criminal penalties for crack cocaine offenses, no specific non-capital penalty structure has been more widely criticized than USSG § 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. §§ 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography. Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012 made a compelling case for changing both the guideline and, to a lesser degree, the statutes. The current sentencing guideline for non-production offenses is fundamentally broken, as evidenced by the fact that only 28.4 percent of defendants sentenced under section 2G2.2 receive within-range sentences and 69.1 percent of defendants receive downward variances or departures (unrelated to their substantial assistance or participation in a fast-track program). The vast majority of child pornography defendants receive downward variances from their guideline ranges based on sentencing judges’ subjective senses of what appropriate sentences should be. Because judges have no meaningful national benchmark from which to render sentencing decisions, widespread sentencing disparities exist – in conflict with the central purpose of the Sentencing Reform Act of 1984. In addition, because the current guideline fails to offer any meaningful benchmark, federal prosecutors around the country engage in a wide variety of different charging and plea-bargain practices resulting in significant sentencing disparities among similar defendants. Although the best solution to the problems with the current child pornography sentencing scheme would require congressional intervention, Congress appears unwilling to make any changes in the statutory handcuffs currently on the Commission. Therefore, I have set forth a detailed proposed amendment to section 2G2.2 that could be adopted by the Commission without congressional authorization. If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker and Kimbrough v. United States.

The Future of Presidential Clemency Decisionmaking

The Framers gave the president the clemency power when the federal government and the nation were in their infancy. The president has far more demands on his time today than George Washington did in 1789. The time necessary to make clemency decisions, even if done properly (and it has not always been done that way) alone could keep a large number of aides busy full time, let alone exhaust a chief executive troubled by the prospect that too many innocent people are rotting in prison or that too many people have been sentenced to the slow death of unnecessarily long terms of imprisonment. Accordingly, the question is whether the president should leave clemency judgments to others, particularly ones who are professionals at sentencing. Some scholars have suggested reinstituting some form of parole. Yet, I think that we not will see a rebirth of parole any time soon. The criticisms that persuaded Congress to abandon parole in the Sentencing Reform Act of 1984 have not disappeared or lost their force. Proof can be seen in the fact that, during the debate over the First Step Act of 2018, neither the House of Representatives nor the Senate seriously considered reinstituting parole to address the overcrowding that federal prisons have witnessed over the last decade-plus. Other scholars urge Congress to adopt a “second-look” resentencing system. That also is unlikely. The suggestion that Congress reinstitute some type of second-look mechanism would be scorned as the attempted resurrection of parole under an alias. Indeed, the First Step Act approached this issue by using well-settled good-time and earned-time credit systems to decide whether and when to release prisoners, not a second-look mechanism. A third option, however, can be found in a provision of the First Step Act modifying the gatekeeper role played by the Federal Bureau of Prisons (BOP) since the Sentencing Reform Act of 1984 went into effect. An argument can be made that district courts now can resentence prisoners because prisoners can now go to court to argue that “extraordinary and compelling reasons” justify their early release without needing the BOP to ask a court for that relief. That type of change to the law, however, is far from the type of interstitial fleshing out that Congress traditionally delegates to others. Nonetheless, it remains to be seen how the Supreme Court will resolve that issue.

The Wild West of Sentencing Reform: Lessons from California

AbstractAs the United States became notorious for mass incarceration, California received outsized attention. Not so much for the sheer volume of California imprisonment but because of its chaotic ...