May 4, 2009
Attacking the federal sentencing guidelines based on moral obligations
"A Personal Affair: Moral Obligation and the New Common Law of Sentencing" is the title of this new piece on SSRN authored by Hans Grong. Here is the abstract:
Sentencing has a tortured history in the federal system. The Sixth Amendment, due process, and separation-of-powers problems with the current sentencing regime have been extensively documented. But this Article deals with a different problem. This Article deals with the moral failure of the federal sentencing regime. This Article contend that the current system of federal sentencing fails to treat defendants as human beings and, as such, fails to fulfill its moral obligation to impose just sentences. As a response, this Article proposes a new paradigm for federal sentencing. This Article outlines a federal sentencing regime based on guided, principled judicial discretion, which I refer to as "the new common law of sentencing."
The primary argument is based on the moral obligation that society and the criminal-justice system have in the context of sentencing. Our criminal-justice system has an obligation to impose just sentences. Any given sentence cannot be just, however, unless it takes the individuality of the defendant into account in a way that is impossible under the mechanical system currently in place. This Article proposes a new paradigm for sentencing based on guided judicial discretion. This new model, which is referred to as the "new common law of sentencing," is an attempt to return to the judicial-discretion model of sentencing while alleviating the problems that plagued the pre-1984 sentencing system. In effect, it argues for a return to the literal text of the Sentencing Reform Act and a rejection of the presumptions in favor of the Sentencing Guidelines.
May 4, 2009 at 07:28 PM | Permalink
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In the lawyer world, pure evil is a moral obligation.
Sentencing is to be a part of the trial, and a decision of the jury.
How does the new common law of sentencing not violate legality?
Posted by: Supremacy Claus | May 4, 2009 10:04:16 PM
Apart from Sen. Webb's commission, I see little evidence of a constituency for undoing the horror show cynical pols and right-wing judges have made of the justice system over the past three decades.
But if Grong means to shift sentencing prerogatives from prosecutors (who have woefully abused them) back to judges I wish him good luck.
Of course, Grong faces two huge related obstacles.
One, most citizens aren't remotely aware of the sentencing system's No. 1 moral outrage: the leverage its draconian punishments have given prosecutors to coerce confessions from innocent and wrongly accused citizens.
And, two, spineless lawmakers almost never challenge entrenched interests in law enforcement and the prison industrial complex.
Nonetheless, a seemingly bold proposal like Grong's marks a refreshing advance in a debate otherwise preoccupied with incremental tinkering at the margins of the sentencing guidelines.
Posted by: John K | May 5, 2009 1:26:26 PM
This moral problem affects us in every human activity so we need to keep an eye on this situation.
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