Sentencing Law and Policy

Must-read posts for sentencing fans at The Volokh Conspiracy and other blogosphere goodies

The Volokh Conspiracy is on my list of daily blog-reads, in part because the folks there cover a lot of cutting edge criminal and political issues that go beyond my core sentencing focus.  But today the Conspirators have these two must-read new posts for sentencing fans:

• Should Crime Victims Have the Right to Be Heard on Federal Sentencing Guidelines Issues?

• How to Have Less Crime and Less Punishment: A Checklist

There is also a lot of good new stuff at Crime and Consequences and and CrimProf Blog and Grits for Breakfast and Sex Crimes for criminal justice fans planning to catch up on their blog readding this weekend.

A complete set of links to Smart Sentencing from the Missouri Sentencing Advisory Commission

I received this afternoon this helpful e-mail with links to some documents that should be useful for all sentencing fans:

The Missouri Sentencing Advisory Commission presents the latest in statistics, information, research findings and evidenced-based practice to help make informed decisions about how to punish criminal behavior.  The Commission launched Smart Sentencing, a periodic bulletin to keep judges, prosecutors, defense attorneys, probation officers and others concerned about sentencing issues current as to the latest information related to sentencing practices and their impacts...

The information in these bulletins is important and, we hope, useful.  We are grateful to the research staffs of the Department of Corrections and David Oldfield, its director of research, and the Office of State Courts Administrator and Anne Janku, its research director, for compiling the statistics and writing these bulletins, and to Beth Riggert, communications counsel of the Supreme Court, for editing assistance.  Here are the bulletins issued thus far:

• No. 1. THE U.S. PRISON POPULATION AT ALL TIME HIGH

• No. 2. PATTERNS OF GROWTH IN MISSOURI'S INCARCERATED POPULATION

• No. 3. PROBATION WORKS FOR NONVIOLENT OFFENDERS

• No. 4. DRUG TREATMENT CAN REDUCE RECIDIVISM

• No. 5. RECIDIVISM IN JUVENILE COURTS: MATCHING RISK LEVELS AND OFFENSE SEVERITY TO SANCTIONS

New article on "Reconsidering Deference" in the appellate review of sentences

I just noticed here on SSRN that Professor Michael O'Hear has yet another important new piece concerning appellate review of sentences.  This new piece is titled "Appellate Review of Sentences: Reconsidering Deference," and here is the abstract:

American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges.  This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial-court discretion.  This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions.  For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making.  Despite the shortcomings of the standard justifications, the Article suggests that there is a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse.  Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, the Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient.

"The Prisoners’ (Plea Bargain) Dilemma"

The title of this post is the title of this important article in Summer 2009 issue of The Journal of Legal Analysis. Here is the abstract, where I have placed in bold the important conceptual contribution of this piece by Professors Oren Bar-Gill and Omri Ben-Shahar:

How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences?  Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain.  Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination.  The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants.  This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants.  Absent the plea bargain option, many defendants would not have been charged in the first place.  Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.

ABA hosting second annual "Sentencing Advocacy, Practice & Reform Institute"

I just received this notice of a great sentencing event taking place in DC in early November:

The ABA Criminal Justice Section, in cooperation with our co-sponsors, is proud to present a one-day seminar to address a broad array of sentencing and reentry issues, with a particular emphasis on sentencing practice in white-collar cases.  The conference will examine sentencing and reentry trends and opportunities for reform at both the federal and state levels.

The program will begin with a plenary session on the state of the sentencing union including rates of incarceration, sentencing trends, racial disparity, alternatives to incarceration, and recent federal legislation.  There will be two tracks of instruction focused on reentry and two focused on sentencing, each addressing issues of concern to different segments of the criminal justice community, including probation and parole officials, white collar crime defense attorneys, prosecutors, academics, public defenders, judges, sentencing consultants, mitigation specialists, corrections personnel, victim advocates and policy experts.  One track will focus on practice and procedure issues of particular concern to criminal defense attorneys in general and white collar practitioners in particular.

Confirmed speakers include Jeremy Travis, President of the John Jay College of Criminal Justice, and the U. S. Sentencing Commission.  The second annual conference is hoped to again attract a broad cross-section of those involved in perhaps the most pressing criminal justice issues of our time.

Click on this link here for complete brochure.

Interesting discussion of contributions and legacy of Jeremy Bentham

I just noticed on SSRN this posting of an interesting looking book chapter discussing the contributions and legacy of Jeremy Bentham. Here is the abstract:

Jeremy Bentham is associated in criminology with his invention of the 'Panopticon.' In many ways this appeared as the quintessential disciplinary institution, training subjects to be 'docile' and obedient. Yet Bentham's classical criminology also stressed that actors are rational choice optimisers, and are to be seen as inventive and enterprising rather than servile and mindless. In part, the overemphasis on the Panopticon leads modern criminologists ignore this side of his thinking and to see Bentham as narrowly punitive and disciplinary. But in his later years he turned toward 'pecuniary sanctions', fines and damages, that he regarded as the optimal liberal sanction. Bentham outlined many of the advantages of monetary justice, and advocated their use in relation to almost every crime, in place of the more usual punishments. This chapter suggests a need to reconsider the contribution of Bentham to criminology and penology in terms of such later works and ideas rather than his advocacy of the Panopticon alone.

"Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended"

The title of this post is the title of this new article on SSRN from Professor Frank Bowman. I consider everything Frank writes to be a must-read, but this 100-page magnum opus seems especially worthy of attention.  Here is the abstract:

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure.  First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system.  It failed to recognize that defining, adjudicating and punishing crimes implicates both the Sixth Amendment jury clause and the Fifth and Fourteenth Amendment due process clauses, and it has twisted the jury clause into an insoluble logical knot.  Second, the practical effect of the Court’s constitutional bungling has been to paralyze the generally beneficial structured sentencing movement, with the result that promising avenues toward improved substantive and procedural sentencing justice have been blocked.  Even the most widely-applauded consequence of the Apprendi-Booker line, the transformation of the federal guidelines into an advisory system, proves on close inspection to be a decidely mixed blessing . The Court has made the Constitution not a guide, but an obstacle, to a desirable distribution of authority among the criminal justice system’s institutional actors. The Article provides a comprehensive constitutional analysis of all the opinions in the McMillan-Apprendi-Blakely-Booker-Ice line, as well as an assessment of the practical impact of these cases on both federal and state sentencing systems.  In addition, the article uses its careful dissection of the defects in the Court’s Sixth Amendment sentencing decisions to develop an alternative constitutional analysis that combines Sixth Amendment and due process principles. Finally, the article suggests that the elevation of Judge Sonia Sotomayor to the Supreme Court may provide the occasion for the Court to rethink its sentencing cases and move toward a more intellectually coherent and practically desirable constitutional sentencing jurisprudence.

Updated supplement for Sentencing Law and Policy casebook now available

As a new school year gets underway, I am happy to be able to share an updated electronic supplement providing additional materials to accompany the second edition of the Sentencing Law and Policy casebook.  Anyone can download this 2009-2010 supplement below.

This updated supplement includes edited versions of Kennedy, Kimbrough and Gall, as well as lots of notes covering various major sentencing developments from the past few years.  My co-authors and I hope that adopters of our text (and others) find this new, updated supplement useful, and we welcome comments and suggestions.

Download Sentencing SuppDBMW2009

Notable criminology studies from international sources

Catching up with some of the SSRN pieces in my in-box, I discovered these two notable criminology pieces from researchers working outside the USA:

Crime, Economic Conditions, Social Interactions and Family Heritage

Abstract: This paper tests whether factors referring to socio-economic aspects, family heritage, social interaction, habits and customs explain differences among violent and non-violent prisoners.  Some of the results of the probit estimation show that economic issues are the main factors that stimulate the practice of non-violent crime.  On the other hand, violent crimes results suggest that factors related to family heritage reduce this kind of crime.  In relation to variables of social interaction, prisoners who were brought up in a good neighborhood have a lower probability of committing violent crimes.

Prison Conditions and Recidivism

Abstract: This paper examines the impact of prison conditions on future criminal behaviour. The analysis is based on a unique dataset on the post-release behaviour of 25,000 Italian former prison inmates.  We use an exogenous variation in prison assignment as a means of identifying the effects of prison overcrowding, deaths in prison, and degree of isolation on the probability of re-offending. We find do not find compelling evidence of deterrent effects of prison severity.  The measures of prison severity do not affect negatively the probability of recidivism. Instead, all point estimates suggest that harsh prison conditions increase post-release criminal activity, though they are not always precisely estimated.

Lots of interesting criminology reading for a long weekend

I noticed via the SSRN criminology abstracts a lot of interesting-looking new papers:

• Law, Legal Institutions, and the Criminalization of the Underclass by David Ray Papke

• Thug Life: Hip Hop’s Curious Relationship with Criminal Justice by andre douglas pond cummings

• The Myth of Big-Time Gun Trafficking and the Overinterpretation of Gun Tracing Data by Gary Kleck and Shun-Yung Keving Wang

• The Unintended Side Effects of Increased DNA Capabilities by Brenda Velazquez

Lots of notable new and timely Findlaw commentaries

The folks at Findlaw do a great job in its Writ section getting top academics to do timely commentaries on legal issues of current debate and interest.  Here are some commentaries from the last few weeks that ought to interest sentencing fans:

• From Sherry Colb here, "Supreme Court Considers Constitutionality of Juvenile Life Without Parole"

• From Steve Sheppard here, " Sharon Keller, Troy Davis, and the Duty of a Death Case Judge"

• From Michael Dorf here, "Did the Supreme Court Recognize an Innocent Person's Right Not to Be Executed?"

"Why March to a Uniform Beat?: Adding Honesty and Proportionality to the Individualized Tunes of Federal Sentencing "

The title of this post is the title of this interesting-looking new piece on SSRN from Jelani Jefferson Exum. Here is the abstract:

The Federal Sentencing Guidelines were initially created to increase uniformity in sentencing by diminishing the influence of individual judges’ biases in the sentencing determination.  However, now that the Guidelines have been rendered advisory by the Supreme Court in United States v. Booker, and circuit courts have been directed to review sentences for “unreasonableness”, most of the Supreme Court’s attention has been focused on ensuring the preservation of uniformity, rather than recognizing the continued importance of bias reduction.  The assumption, it seems, is that once uniformity in sentencing is achieved then the potential of judicial bias has been erased. However, judicial bias in sentencing is not necessarily eradicated by the uniformity promised by sentencing guidelines, and this possibility of bias in sentencing also has implications for the honesty and appropriate proportionality that Congress has called for to inform sentencing decisions.  However, the Supreme Court has ignored these additional purposes of sentencing. Recently, in United States v. Gall, the Supreme Court explained that in order for a sentence to be procedurally reasonable, district courts must first calculate and consider the proper Guidelines range, consider the §3553(a) sentencing factors, and adequately explain the chosen sentence. However, out of those three requirements for procedural reasonableness, only the requirement that district courts begin the sentencing process by calculating the applicable Guidelines range — the factor that the Court considers to be the most closely related to ensuring uniformity — has been given any force.  The requirements to consider the §3553(a) factors and adequately explain the sentence have fallen by the wayside as vague concepts, though these are the requirements that can most effectively ensure the reduction of impermissible bias in sentencing by allowing for a check on both honesty and proportionality.  This Article reveals the Supreme Court’s error in requiring that district courts begin their sentencing determinations by calculating and considering the applicable Sentencing Guidelines range in order for the sentence to be procedurally reasonable.  Not only is this requirement based on a misreading of the sentencing statutes, but it also cuts against the sentencing principles set forth by Congress as well as the traditional concern with individualized sentencing that has always been at the heart of sentencing jurisprudence and that are reflected in both the honesty and proportionality goals.

This Article provides an in-depth look at the Guidelines themselves in order to make the argument that the Supreme Court’s approach to sentencing post-Booker is misguided.  The Supreme Court’s framework for an advisory Guidelines scheme allows the biases that are already buried in the Guidelines themselves to continue to act as the prevailing factors in sentencing.  These biases, whatever the source, counteract Congress’ three-fold purpose in promulgating the Sentencing Guidelines in the first place — honesty, uniformity, and proportionality.  Even the recent Supreme Court decision, Kimbrough v. United States, acknowledged that the Guidelines can sometimes create unwarranted disparities and lead to sentences that are unduly harsh.  The new, advisory Guidelines system provides the opportunity for the Court to require that sentences be based on §3553(a) factors, in order to create uniformity in sentencing purposes rather than just in sentencing results, and to require real explanations to justify those sentences.  Therefore, this Article proposes that the Supreme Court do away with the procedural requirement that district courts begin the sentencing process by calculating the Guidelines range in order to remove the possibility of using the Guidelines as a shield behind which to hide bias in the name of uniformity. As this Article asserts, not only is this outcome statutorily mandated, but it serves Congress’ own articulated sentencing principles and is consistent with notions of sentencing fairness that is reflected in the concept of individualized sentencing.

"What Prevents the Application of the Thirteenth Amendment in Prison?"

The question of this post is from the title of this new article by Raja Raghunath appearing on SSRN. The full title is "A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison?" and here is the abstract:

The walls of the prison are not solely physical.  The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment.  Since its ratification, the Thirteenth Amendment — which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed 'as a punishment for crime whereof the party shall have been duly convicted' — has been seen by courts as one brick in this wall.  This article makes the novel argument that, properly read, the amendment should instead function as a breach in this wall — one of sufficient size to allow some needed light to shine within.

Although in some states inmates may still be sentenced to hard labor, in most systems today they labor under a more general requirement that, if they are able-bodied, they must work.  Reading the word 'punishment' in the Thirteenth Amendment in a manner consistent with the way that same word is used in the Eighth Amendment, and is understood in the rest of the Constitution, reveals that only those inmates who are forced to work because they have been so sentenced — which is not the vast majority of inmates compelled to work in the present day — should be exempted from the general ban on involuntary servitude. In addition to examining the jurisprudence of the Eighth and Fifth Amendments as it relates to this question, this article also details the history of forced labor programs as punishment, and how courts’ reading of the punishment exception is not supported by either the circumstances surrounding ratification of the Thirteenth Amendment, or the ways that courts have construed it as a whole since that time.

This article argues that the reason courts have broadened of the meaning of 'punishment' in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation both serve the same end of judicial deference to the actions of prison officials, which has resulted in the general abdication by courts of their constitutional obligations to oversee those officials’ actions.  This article also theorizes about the potential outcomes of interpreting the Thirteenth Amendment properly with respect to prison labor, and suggests that the resulting recognition of the punitive purposes that have always driven our prison labor programs may actually lead to an improvement in the overall well-being of prisoners, and perhaps of society as a whole.

Reviewing the modern persistence of persistence of sentencing guidelines

This new piece appearing on SSRN, which is titled "Guidelines as Guidelines: Lessons from the History of Sentencing Reform," ensured itself a mention on this blog by mentioning this blog in its abstract.  But, as the abstract for this piece suggests, there are other reasons why the piece is recommended reading: 

Over the last thirty years, sentencing guidelines have become an increasingly prominent feature of the American criminal justice system.  Between the Supreme Court’s Apprendi-Blakely-Booker line of cases, dedicated law reviews like the Federal Sentencing Reporter, multitudinous other law review pieces, and Doug Berman’s famous sentencing blog, a great deal of ink has been spilled discussing the contours and future of guidelines reform.  Most of this scholarship, however, falls in one of two camps.  In one camp are scholars who chronicle the history of sentencing guidelines in particular states.  In the other are scholars who discuss guidelines as a national phenomenon, but mostly with an eye to exposing the flaws in the federal system, or offering suggestions for future reformers.  Most scholars in the latter camp use the states as foils for the federal system, and chronicle the former as a success story and the latter as a failure.

This Note is different. It has one essential goal: offering an explanation for the persistence of sentencing guidelines in American jurisprudence at large. As some scholars have noted, state guidelines survived and thrived in the face of Blakely.  At the same time, the federal guidelines still govern the outcome in around 85% of criminal cases, despite being panned as a failure and rendered purely advisory by the Supreme Court.  This Note attempts to account for this persistence by offering a somewhat abstract “model” for guidelines resilience.  In particular, this Note draws upon the states’ experience to argue that guidelines are most successful when they represent a diversely composed commission’s collaborative effort to administer and regulate criminal sentencing rather than revise substantive criminal law.  Yet this Note also accounts for the federal experience as well.  It argues that when guidelines reform ambitiously attempts to do more — when the guidelines embody a new, draconian criminal code intended dramatically to alter sentencing practice, and the commission acts “legislatively” in defining and ranking crimes — such reform prompts eventual opposition and evasion, and ultimately some form of external moderation is a necessary precondition for continued survival.  I argue that for the federal system, Booker served that role.  I conclude by exploring what this history may mean for the future.

This model — part historical and part theoretical — is by no means perfect.  But it represents an important first step in synthesizing the history of guidelines reform — a step that may well prove helpful for future sentencing reformers.

U Penn JCL symposium on Eighth Amendment litigation

I just noticed that a terrific issue of the University of Pennsylvania Journal of Constitutional Law, which follows-up on its symposium on "Litigating Under the Eighth Amendment," is fully available on-line here. 

The pieces in the issue, all authored by leading scholars in the field, cover a wide array of topics ranging from the death penalty, to prison reform litigation, to how excessive prison punishments should be assessed under the Eighth Amendment.  Especially with many of these issues on the Supreme Court's docket for the coming Term, this JCL issue is a must-read for constitutional law fans as well and criminal law folks.

Justice news of notes from The BLT

The Blog of Legal Times (aka The BLT) has lots and lots of recent posts of note (many of which should be of special interest for criminal justice fans):

• D.C. Circuit Bars Longer Sentences to Rehabilitate Prisoners
• 11th Circuit Nominee Questioned on Sentencing
• Federal Grand Jury Indicts Von Brunn in Holocaust Memorial Shooting
• Sotomayor Vote Likely Late Next Week
• Senate Must Move on Legal Nominees, Leahy Says
• Special Prosecutor in Stevens Case Given Subpoena Power
• Public Defenders: 'Systemic Failure' at DOJ Demands Censure 

"Rethinking the Federal Role in State Criminal Justice"

The title of this post is the title of this Essay from Professors Joe Hoffmann and Nancy King that was recently published in the NYU Law Review.  I blogged about this piece when it first showed up on SSRN, but I think the important piece merits another mention now that it is in print.  Here is the abstract:

This Essay argues that federal habeas review of state criminal cases squanders resources that the federal government should be using to help states reform their systems of defense representation.  A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners who have been convicted of noncapital crimes and offers no realistic hope of relief for those who do reach federal court.  As a means of correcting or deterring constitutional error in noncapital cases, habeas is failing and cannot be fixed.  Drawing upon these findings as well as the Supreme Court’s most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments except for certain claims of actual innocence, claims based on retroactively applicable new rules, or death sentences.  The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services.  This approach can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

Around the blogosphere

Here are a few of the posts of note from around the blogosphere that should be of interest to criminal justice fans:

• From Balkinization here, "Neoliberal Penality in Action" and here, "1 out of 5 Prisoners in California Is Serving A Life Sentence"

• From Crime and Consequence here, "So-Called Prosecutor Misconduct"

• From The Crime Report here, "Why Is Obama Seeking Rise In Drug Enforcement?"

• From Grits for Breakfast here, "Stronger probation praised in drug court setting"

• From How Appealing here, "High Court Ruling Shapes Local Control; California Officials To Seek Relief from Court Oversight"

• From PrawfsBlawg here, "President Obama and the Paradoxes of Police Power"

• From The Volokh Conspiracy here, "If You're Reading This, You're Probably a Federal Criminal"

UPDATE:  Here is one more of note from this afternoon:

• From the WSJ Law Blog here, "Spin the Wheel, Get a Corruption Sentence"

"The Unexceptionalism of Evolving Standards"

The title of this post is the title of this new article from Professor Corinna Lain.  It looks like an interesting and important and timely piece with the SCOTUS confirmation hearing now on-going and the big SCOTUS juve LWOP cases on the horizon.  Here is the abstract:

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the 'evolving standards of decency' doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely, and explicitly, bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few years have seen an explosion of constitutional law scholarship demonstrating the Supreme Court’s majoritarian tendencies, the most powerful evidence of the Court’s inherently majoritarian nature has been right under our noses all along: its widespread use of explicitly majoritarian doctrine.

Of note and interest around the blogosphere

As is often the case, a quick tour of the blogosphere reveals lots of interesting and notable reading from some of my favorite blogs:

• From Crime & Consequences here, "Sex Offender Assessment Tool Held Inadmissible"

• From Grits for Breakfast here, "Oversight: Why so little MSM coverage after Texas abolished LWOP for juveniles?"

• From PrawfsBlawg here, "Reconsidering the Punishment of Violent Crime"

• From Simple Justice here, "Dreier and The Bernie Scale"

• From TalkLeft here, "Justice Ginsberg on Judicial Diversity"