Thursday, December 15, 2005
Notable new paper on voluntary guidelines
Thanks to this post at the Legal Theory Blog, I see an interesting new paper at SSRN about state sentencing systems and voluntary guidelines (topics which are also addressed in the latest FSR issue about Blakely in the states). Authored by John Pfaff, and available for download here, the new paper is entitled "The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines." Here is the abstract:
This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v Washington.
In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous. Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors.
Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums. In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.
Tuesday, July 05, 2005
Problems in Indiana with advisory fix
This morning brings this interesting AP story from Indiana concerning the state's decision to respond legislatively to Blakely issues by converting its mandatory sentencing system into an advisory system. In the piece, Prof. Joel Schumm is quoted calling "the new law, which took effect in April, 'a pretty enormous setback' that undid decades of work toward making sentences fairer." And:
The new law could expose judges to extreme pressure to impose harsher sentences in line with the wishes of victims and their families, Schumm said. "To be honest with you, I think it could mean a lot more appeals and a lot longer sentences," he said.
The article also quotes lawyer Michael Ausbrook, of INCourts fame. The piece is headlined "Sentencing law may increase appeals; Change is called 'enormous setback.'" But for sentencing insiders who would understand the references, a more fitting title might be, "States should be wary of fixing Blakely with Booker."
Sunday, April 24, 2005
I wonder how Virginia would assess Martha Stewart's risk
Two interesting news items today from east coast posts almost cry out to be merged: this story from the New York Post reports that the "feds are investigating whether former jailbird Martha Stewart violated the rules of her house arrest when she attended a Time magazine gala last week," while this story from the Washington Post reports that Virginia is set to expand the use of its controversial "risk assessment" instrument to "help figure out whether criminals who violate the terms of their probation should be sent back to prison for years or diverted to lower-security detention centers for several months."
Reading the stories in sequence led me to wonder what Martha might score on Virginia's risk assessment measures. My guess is that all white-collar offenders do pretty well within Virginia's risk assessment instrument (and I think this sample worksheet from Virginia might be similar to what would be used to "score" Martha).
Needless to say, the NY Post treats the Martha story with levity (quoting comedian Jon Stewart), while the Wash Post treats the Virginia story with gravitas (quoting Virginia sentencing commission director Rick Kern). Meanwhile, Ellen Podgor over at the White Collar Crime Prof Blog in this post raises some interesting questions about the Martha story.
April 24, 2005 in Advisory Sentencing Guidelines, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, February 16, 2005
Topical highlights from Day 2 of the USSC hearings
Rather than provide testimony highlights as I did here for USSC hearing day 1, I thought it might be more beneficial to spotlight some of the biggest topical issues developed during the second day and throughout all the hearings. Though I urge review of the testimony linked here for a more thorough account of issued covered, here are just a few of the topics still spinning in my mind after the hearings.
1. The collection and presentation of post-Booker data: As stressed in this prior post, everyone is focused on the importance of district courts providing, and the USSC effectively analyzing, post-Booker data. But a number of Commissioners astutely asked about how the data ought to be parsed. Especially important, as a number of folks noted, was how cases involving a variance from the guidelines are coded, assessed and publically discussed.
2. The availability and nature of appeals: A few witnesses, including Robert McCampbell representing DOJ, suggested that the appellate review provisions of 3742 are still to be read to mean that sentences within the guidelines after Booker are not subject to appeal for general reasonableness (though, of course, the guideline calculations could still be challenged for all the "old" reasons). This important and interesting issue of when appeals are even authorized will, I suspect, need to be litigated in the months ahead. Relatedly, all the state sentencing witnesses noted that no jurisdiction with true advisory guidelines has any track-record with appellate review. Thus, the federal guidelines are in uncharted territory with advisory guidelines with appeals, and everyone at the hearings could only begin to suggest what reasonableness review will come to look like.
3. The substantial substantial assistance problem: A number of folks addressed how 5K1.1 departures will operate in an advisory system, and McCampbell suggested that the loss of the leverage which facilitated truly effective cooperation in a mandatory system was DOJ's biggest worry. More than a few witnesses suggested different small ways to address try to address this matter, and I think it will be an area to be watching very closely in the weeks ahead.
February 16, 2005 in Advisory Sentencing Guidelines, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, January 18, 2005
Taking stock of advisory guideline systems
With Booker making advisory guidelines a reality in the federal system, a careful examination of our modern experiences with advisory systems are in order. As detailed in this post, the Federal Sentencing Reporter will soon be publishing a timely article entitled on "Advisory Guidelines in the Post-Blakely Era," authored by the executive directors of two sentencing commissions involved in the development of advisory guideline system. Relatedly, Adam Liptak has this thoughtful article today in the New York Times examining the operation of advisory guideline systems in the states.
In addition, because I am about to do a Chicago public radio show with University of Chicago Professor Albert W. Alschuler, I was reminded that Professor Alschuler was among the first to forcefully advocate advisory guidelines as the right federal response to Blakely (the original draft of Al's article is available here). Reviewing that pre-Booker article this morning, which is To Sever or not to Sever? Why Blakely Requires Action by Congress, 17 Federal Sentencing Reporter 11 (Oct 2004), I was terrifically amused by this wonderfully ironic paragraph in its introduction:
This commentary proposes a sentencing system that courts could not implement without Congressional action — one in which judges would be guided but not bound by sentencing guidelines, in which they would impose determinate sentences not subject to adjustment by a parole board, and in which their sentences would be subject to appellate review for reasonableness and proportionality. Id. at 11 (emphasis added).
Obviously, though Al might be exactly right about the value of advisory guidelines, he was apparently wrong, thanks to Justice Breyer and the remedial majority, that his proposed solution could not be implemented witout Congressional action.