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November 28, 2004

Two must-reads from Professor Frase

I just came across on SSRN two articles recently posted by Professor Richard S. Frase, a leading (and prolific) academic voice in the field of sentencing reform. From a review of the abstracts and a quick scan of the text, both articles appear to be must-reads for any scholar (or policy-maker) seriously interested in sentencing law and policy.  Here are the abstracts, with links to SSRN, for both pieces:

Sentencing Guidelines in Minnesota, 1978-2003 (in Crime and Justice: A Review of Research, Vol. 32, Michael Tonry, ed., University of Chicago Press):

This article examines the origins, purposes, evolution, and impact of Minnesota's pioneering sentencing guidelines reform. The Guidelines, related sentencing laws, and charging and sentencing practices have evolved considerably since 1980, and so have Minnesota's reform goals. Most of these goals have been achieved: sentences are more uniform and proportionate; policy formulation is more systematic and informed by data; sentencing has been coordinated with available correctional resources, avoiding prison overcrowding and ensuring that space is available to hold the most serious offenders; "truth in sentencing" has been achieved; custodial sanctions have been used sparingly; and the Guidelines remain fairly simple to understand and apply. The Guidelines have been least successful when they have attempted to change firmly-established practices and values. In particular, the Guidelines Commission's emphasis on Just Deserts was undercut by subsequent appellate caselaw, legislation, and sentencing practices (although the system created by the enabling statute and the Commission was always a hybrid, allowing utilitarian purposes to play a very important role). Minnesota has achieved a workable and sustainable balance not only between sentencing purposes but in other important areas - in the tradeoff between uniformity and flexibility, and in the powers of the Commission, the Legislature, appellate courts, and practitioners to control sentencing policy and case outcomes.

Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: Proportionality Relative To What?  (forthcoming in the Minnesota Law Review, Vol. 89):

This article examines constitutional proportionality requirements. The focus is on the assessment of lengthy prison sentences under the Eighth Amendment. However, the proportionality principles discussed have much broader application, both within and outside the field of sentencing. In the wake of the recent California three-strikes cases, upholding sentences of 25-to-life and 50-to-life imposed on two repeat property offenders, it is very unclear when a prison term will be held to violate the Eighth Amendment, and on what precise grounds. Justices Scalia and Thomas believe that the concept of proportionality is unworkable; they assert that the concept is inherently tied to retributive sentencing goals, yet the Court's cases specify that the Constitution permits sentences to be based on a variety of non-retributive (crime-preventive) goals. What does it mean to say that a penalty is disproportionate relative to non-retributive goals? None of the justices has ever addressed this question, and scholars have not done so in any systematic way. The answers to this question can be found in the Court's own cases. This article identifies one retributive and two non-retributive proportionality principles which are implicit in Eighth Amendment decisions, and also in cases from many other fields of constitutional law. The same three principles also find strong support in lower court decisions, in constitutional cases from other Western countries, and in regional and international law. The article examines the many forms these principles have taken, and suggests how they can be used to make proportionality analysis of prison terms more precise and more meaningful. The article is principally addressed to scholars, lawyers, and judges seeking to interpret the Eighth Amendment and its state constitutional counterparts. However, these proportionality principles can also be helpful in formulating subconstitutional sentencing law and policy. A third goal of the article is to increase awareness of proportionality principles that are implicit in U.S. law but rarely identified as such.

November 28, 2004 at 10:52 AM | Permalink


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Professor Berman, I appreciate your website so much! Your site and the others you reference or quote from should be required visits for anyone with friends or family caught up in criminal legal proceedings. Such an ad for "hindsight is always 20/20"! Thank you, for your efforts and your purity in presenting the information...not spinning it or slanting it. If there were awards for blogging, you'd have to be preparing an acceptance speech. Keep blogging, Professor!
mary (mother of a *young* *male* federal prisoner-facing 188 months)

Posted by: mary | Nov 28, 2004 2:24:34 PM

I'll definately second that Mary. Great blog... keep up the good work!

Posted by: rose | Jan 18, 2005 2:58:04 PM

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