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June 6, 2009

"Luck or Law? The Constitutional Case Against Indeterminate Sentencing"

The title of this post is the title of this provocative new abstract by Professor Dan Markel now up at at SSRN.  Here is the abstract:

In the majority of states indeterminate sentencing schemes prevail — under which the decision for whether a person serves anywhere from one year to a life in prison for a given crime is left largely to the unfettered discretion of a judge.  Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentencing guidelines “effectively advisory,” many state courts have read Booker to lend an imprimatur upon their indeterminate sentencing schemes.  Thus, in many jurisdictions, virtually no restraints upon judicial and/or executive discretion exist to ensure that similarly situated offenders convicted of similar criminal conduct will, within the same sovereign jurisdiction, receive punishments that are roughly similar to each other.

This Article examines the case for, and the implications of, a finding that indeterminate sentencing schemes are impermissible under the federal Constitution.  Looking at the history of the Framing Period and selected areas of the Supreme Court’s jurisprudence over the last forty years, this Article explicates the constitutional restraints on arbitrary and/or discriminatory distributions of penalties, and finds little persuasive basis for the continued survival of indeterminate sentencing schemes.  To the extent the Supreme Court is reluctant, as a matter of institutional competence, to make that finding explicit, the Article urges legislators at the federal and state levels to shoulder their co-equal burden of implementing the Constitution’s commitment to restraining the random, arbitrary, or discriminatory imposition of substantial punishment.

I look forward to getting a chance to read Dan's full article, though I am a bit troubled by his use of the term "indeterminate sentencing" for what I think ought to be called "discretionary sentencing."  Most (though not all) sentencing folks use the term "indeterminate sentencing" to describe sentences that include the possibility of later parole, but I do not think that is what Dan means to reference in his criticisms of what most describe as "discretionary sentencing." 

June 6, 2009 at 04:25 PM | Permalink


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The "cosmic fairness" argument again. That some criminals get a break means that others have cause to complain when because they didn't.

Posted by: federalist | Jun 6, 2009 5:14:36 PM

Dan is a retributionist, meaning, a criminal gets something he deserves, and no more. An eye for an eye. I am not sure of these characterizations. When he opens his mouth, no one can understand that Harvard Law way of talking, not even other Harvard Law grads. He needs to disclose his retributionist bias in the abstract.

Everyone can understand utilitarianism. 123D. Your life for three eyes, because we do not want you poking any more people in the eye.

Posted by: Supremacy Claus | Jun 6, 2009 5:39:28 PM

I don't know that indeterminate (or "discretionary") sentencing is unconstitutional. It has a long historical pedigree, going back to the Founding. But it is certainly a bad ides, as Congress recognized when it adopted the SRA.

Under Booker and its progeny, we are back to luck-of-the-draw sentencing. Sure, there are some minimal, and inconsistently enforced standards, but for the most part, the door has been opened to vastly expanded arbitrary behavior by sentencing judges.

The defense bar will like this as long as it results, as it does now, in what are almost always downward variances from the Guidelines. But the worm will turn, as it always does. When that happens, what is now hailed as leniency will be denounced as vengeance. But it's just two sides of the same coin, and the coin is called anything goes sentencing.

Posted by: Bill Otis | Jun 6, 2009 6:10:32 PM

"When that happens, what is now hailed as leniency will be denounced as vengeance. But it's just two sides of the same coin, and the coin is called anything goes sentencing."

Exactly. And that's a good thing. We have this belief that for there to be justice there has to be a *system* of justice. And really that assumption is just pure prejudice.

The author talks about results being arbitrary and capricious as if that's a bad thing. But I don't think it is. I think randomness produces more justice over the long haul than any system ever can.

Posted by: worlddan@yahoo.com | Jun 6, 2009 6:46:24 PM

Judges know nothing about criminals, about punishment, about prevention. They have an economic conflict of interest in owing their jobs to criminals. The ort of accountability remaining in election of judges is under attack by academic criminal lovers.

All sentences should be indeterminate. A sentencing authority in the executive branch should be responsible for releasing any criminal when ready. If they deviate from sentencing authority standards of care, future crime victims should be able to sue them. They should be forced to carry insurance. When lawyers can make money from crime victims, crime rates will drop.

Retribution is from the Bible or something. Retribution violates the Establishment Clause, unlawfully endorsing a specific religion. For that remark, Dan kicked me off his blog in minutes, over ruling another owner. Retribution shows atavism and immaturity of a legal system. It is worthless to taxpayers or to future crime victims. They are the sole reason to have a government. The failure of government to provide security justifies firing the lot. Because of the self-dealing and the economic conflict of interest, the failure is intentional, and justifies eliminating the hierarchy. Arrest them, give them a fair trial for an hour, with the sole evidence being their writing. Then, execute them in the courthouse basement. It does not matter how.

Posted by: Supremacy Claus | Jun 6, 2009 7:42:50 PM

I'm not smart enough to find all the flaws in Supremacy Claus' (Santa's slow sister?) post, but I'm pretty sure there are more reasons to have government than taxpayers and future crime victims. Like maybe kids, or old folks, or roads, or stopping people from flying into buildings.

That's from the bible or something. And since we get to make up both history and the bible, I'm gonna say they both teach us that retribution is for suckers. Its like an actual quote from history.

Posted by: Matt | Jun 6, 2009 9:30:32 PM

Security is a purpose of government anterior to all others. See Fallujah when that gets turned off.

Posted by: Supremacy Claus | Jun 6, 2009 9:36:59 PM

SC. Actually, If I recall the situation correctly, most people showed the government their posterior and went to Syria and Jordan.

Posted by: Daniel | Jun 6, 2009 10:39:05 PM

In our cities, in lawyer targeted areas, there were Fallujah like conditions. The Sentencing Guidelines served to reduce crime by 40%. This represented an intolerable loss of lawyer jobs. So they had to be stopped. The lawyer is in utter failure in all the goals of the law. This incompetent must be removed from all benches, all legislative seats, all policy positions in the Executive branch. When a group is in such total failure, there must be a time when the public decides, enough. Time to go. They now control the three branches of government. The sole validation of their power is at the point of a gun. There is nothing they do that works otherwise.

I believe in torts as an alternative to violence. Violence has full justification against this criminal cult enterprise. However, torts should be given a chance. All lawyer self-dealt immunities should end. One should be able to sue the careless prosecutor, judge and legislator. Go after the personal assets of these incompetents. To deter.

Posted by: Supremacy Claus | Jun 6, 2009 10:52:38 PM

Doug, thanks for the shout-out and the reservations re: the nomenclature. Given that I mention (and promise to address) concerns about lack of constraints about judicial *and* executive discretion re: sentencing, I'm not too troubled by the use of "indeterminate" here since parole boards also are permitted (constitutionally) to operate in the same "lawless" ways as judges. But I'll take the point under advisement -- as well as these other reactions here in the thread!

Posted by: Dan Markel | Jun 6, 2009 11:14:20 PM

Is a draft soon to appear on SSRN, Dan? I am eager to see all that you have to say.

Posted by: Doug B. | Jun 6, 2009 11:36:56 PM

Prof. Berman: If you can understand and translate Markel-speak, I send you a gift certificate to your favorite restaurant for two. I think, at Harvard Law, there must a class where it is taught, incomprehensible legal gibberish is a sign of correctness.

Posted by: Supremacy Claus | Jun 7, 2009 12:33:34 AM

Doug, I also am eager to see what I have to say...and hopefully it will make enough sense for Supremacy Claus when it's finished. Sadly, I have some other projects on the front burners and as you may recall, this is a project I began a few years ago and put off. I hope I'll have some time to revisit it this summer and maybe post at least the intro and some more...
thanks again.

Posted by: Dan Markel | Jun 9, 2009 5:28:49 PM

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