October 4, 2006
Proofs of Making Sentencing Sensible
As first detailed here, Stephanos Bibas and I have authored an article urging SCOTUS to bring some order to its sentencing jurisprudence as it considers Cunningham, the California Blakely case. The article, entitled "Making Sentencing Sensible," is now in proofs and will very soon be published in the Fall 2006 issue of the Ohio State Journal of Criminal Law.
Commentors provided terrific feedback on the earlier draft here (and via e-mail), and now I am posting below the revised draft that incorporates this feedback. We still have a few days to catch any typos or other small errors on the proof, so feel free to keep the helpful feedback coming.
October 4, 2006 at 11:20 AM | Permalink
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Thank you for inviting comments on your paper. You write: “Bookers’s reasoning suggests a profound conceptual confusion…The dual rulings in Booker reflect two divergent conceptual and procedural models for competing for dominance.” (p. 53 “The two opinions almost speak two different languages.” (p. 54)
It is quite well established by now that people are equipped to reason about things in two different ways. In fact people often think about the same thing in both ways. Here are some references you may find helpful:
Steven Pinker, “Chapter 10. A Digital Mind in an Analog World” in Words and Rules, Basic Books (1999)
Steven A. Sloman, “Two Systems of Reasoning” in Heuristics and Biases, Cambridge University Press (2002)
Steven A. Sloman, “”The Empirical Case for Two Systems of Reasoning” in Psychological Bulletin (1996)
Uta Priss, “Associative and Formal Concepts” (Internet)
Uta Priss, “A Classification of Associative and Formal Concepts” (Internet)
Robbery is a crime; robbery is also an offense. These are two different ways of reasoning about the same thing. One is formal; the other is associative. Formal concepts have a fixed boundary and are rule-based. Associative concepts are fuzzy and have an open texture. In Booker, apparently one group of justices thought about the problem as a crime, while the other thought of the problem as an offense. Apparently Justice Ginsberg did both. Obviously, a sentencing system must accommodate both ways of reasoning about the same thing.
Posted by: Tom McGee | Oct 4, 2006 4:44:37 PM
Whatever Justice Ginsburg was thinking, it was a supreme dereliction of judicial duty not to explain it to the rest of us. We should not have to read several psychology/philosophy articles in order to have a chance at even begining to speculate.
Posted by: JDV | Oct 4, 2006 7:02:21 PM
Justice Ginsberg probably would have explained her reasoning, had she been consciously aware that people think about things in two different ways. Actually we seem to do this quite intuitively. For example, we refer to “a” crime and “an offense”, not “an” crime and “a” offense. We penalize people who have committed crimes (closed texture), but punish those who have committed offenses (open texture).
In the Double Jeopardy Clause, Madison uses the concept “offense”, not “crime”. If he and the Founding Fathers meant “crime”, they would have said so. Apparently judges have had difficulty with this Clause, because they are not consciously attentive to this distinction.
H.L.A Hart discusses concepts that have an open texture in his book “Concept of the Law” and other writings. He refers to them penumbra.
Posted by: Tom McGee | Oct 5, 2006 7:53:33 AM
I AM A MOTHER OF A CHILD WHO WAS SENTENCED TO 6 YEARS FOR ROBBERY AND THE OTHER KIDS WERE GIVEN AT LEAST 6 MONTHS, AND I MYS ON HAD NEVER BEEN IN TROUBLE BEFORE, I WOULD LIKE TO CHAT WITH YOU TO DISCUSS AN APPEAL ON HIS BEHALF, ( I NEED HELP IN WORDING IT CORRECTLY). IF YOU CAN HELP I APPRECIATE IT, OR IF NOT LEAD ME INTHE RIGHT DIRECTION.
Posted by: aletta | Oct 5, 2006 10:15:30 AM
Just one more comment before this slips even futher down on the radar. There is grist for the mill here for those who are puzzled about srict liability crimes. Forbidden conduct that is a crime, but not an offense, is a strict liability crime.
Posted by: tom McGee | Oct 5, 2006 10:17:07 AM
son is habitual felon.I am sickenedand terrified at the number of bunk buddies who have gone home to kill themselves,have shootouts with police.and kill others because of the"I can't face another long stretch - I've got nothing to lose!" attitude when caught in any crime. fearful, B.
Posted by: Barbara | Dec 26, 2006 8:22:39 AM