May 18, 2004
Miller on the Distribution of Sentencing Authority
Professor Marc Miller has posted on SSRN the draft of his forthcoming artice in the Stanford Law Review about the allocation of sentencing authority in the federal system. Here's a link to the article, as well as the text of his abstract:
The federal sentencing system we have in 2004 would have been unimaginable to the Congress in 1984, and would not have received the broad support that the Sentencing Reform Act (SRA) received. The federal sentencing guidelines system has so changed since its original statutory conception that the system now is fundamentally different, in form and purpose, than the system Congress created in the SRA.
This article suggests the success of the federal guideline system (or other sentencing systems) be measured by the opinion of key actors. Evidence that the federal sentencing system is failing comes from the fact that most actors hate the system and that one set of actors - policy-making federal prosecutors at the Department of Justice - love it. The failure illuminated by the actors is an unwise allocation of sentencing authority.
Certain allocations of authority are dangerous or worse. Policy-making prosecutors at the United States Department of Justice love the guidelines because they dominate the federal sentencing process. The solution to this failure comes from a return to general principles of American government. The quintessential response to the threat of excess power is to design checks and balances into the system. This article highlights the need to apply these broad principles of American government to the allocation of sentencing authority.
Positive Developments in State Sentencing
The State Sentencing and Corrections Program at the Vera Institute is doing a lot of terrific work studying and advancing reforms in state sentencing systems. Its latest publication, Changing Fortunes or Changing Attitudes?: Sentencing and Corrections Reforms in 2003 surveys the most recent changes to sentencing and corrections policies and identifies the range of reforms being implemented. Using case studies of changes in four states, it also explores the role of changing attitudes toward crime and the possibility that the shifts in policy may outlast the budget crises that precipitated them. The report can be accessed here.
May 17, 2004
Professors Nancy King and Rosevelt Noble have posted this terrifically interesting study of felony jury sentencing on SSRN. Here's the text of their abstract:
Jury sentencing in non-capital cases is one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states - Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window through which one can observe some of the most fundamental forces operating in criminal adjudication today.
It turns out that jury sentencing in practice looks very little like jury sentencing in theory. Sentencing by jury is promoted for its democratic appearance, but its vitality may turn instead upon its ability to streamline case disposition and protect elected officials from political accountability for sentencing policy. Jury sentencing is viewed by these criminal justice insiders as a critical component of the justice system in each state, a tool they have adapted to deter trials, to accommodate elected judges, and to appease constituents who support ever higher sentences for crime. The Article explores the implications of this research for sentencing reform, and criminal justice reform generally.
New Report on Lifers
The Sentencing Project has released a new report, The Meaning of “Life”: Long Prison Sentences in Context, which finds that 127,000 persons -- one of every eleven persons in prison -- is now serving a life sentenceOf these 127,000, over a quarter -- 33,000 -- have no option for parole and will spend the rest of their lives in prison. The total number of lifers represents a growth rate of 83% since 1992, along with a rising number of sentences to life without parole and increased time served in prison. The report finds that the growth of the lifer population is due to changes in sentencing policy and not crime rates, and that the lifer population includes substantial numbers of mentally ill persons, juveniles, abused women, and sentences resulting from inadequate defense.
Here is the link to this recent report by the Sentencing Project.