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October 4, 2006

Blakely's silver lining (to go with its heart of gold)

Regular readers know I am a fan of the Blakely ruling on its own terms.  But critics of Blakely and Booker will want to be sure to check out Joanna Shepard's arguments, set out in her new paper entitled "Blakely's Silver Lining: Sentencing Guidelines, Judicial Discretion, and Crime," that Blakely could ultimately produce a reduction in crime rates.  Here is the abstract to this intriguing paper:

The Supreme Court's recent striking down of criminal sentencing guidelines in its Booker and Blakely decisions could have a substantial unexpected benefit: the likely expansion in judicial discretion may reduce crime. I show that, contrary to the expectations of many of the original supporters of sentencing guidelines, guidelines are associated with significant increases in crime.  After developing several economic theories of guidelines' impacts, I investigate these impacts empirically using a large state-level data set.  This study is the first to use regression analysis to explore the relationship between sentencing guidelines and crime.  Results show that guidelines are associated with increases in both violent crime and property crime.  If, as is probable, the alternatives to guidelines after Booker and Blakely expand judicial discretion in criminal sentencing, then crime may decrease substantially.

As the abstract reveals, this paper is not really about Blakely and jury trial rights, but rather about the relationship between judicial sentencing discretion and crime rates.  The Justice Department has been saying, since Blakely and before, that rigid mandatory sentencing guidelines have helped produce a reduction in crime.  This paper seems to argue that the opposite is true.  (Personally, I think these complex dynamics cannot be subject to any simple cause-effect relationship.)

UPDATE:  Michael Connelly here at Corrections Sentencing has a strong review of this article.  He notes some methological concerns and then shares there concluding sentiments:

It's useful for the points it manages to make and for the hole it puts in the conventional wisdom.  We need this kind of shakeup of our suppositions.  What the article needed was peer review by trained criminologists and political scientists, not folks trained in the narrow cognitive world of law and econ.  The author would have had to have made a much better argument, but the one made is one that must be considered by all of us, nevertheless.

October 4, 2006 at 03:59 PM | Permalink


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