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October 14, 2012

"Notice-and-Comment Sentencing"

The title of this post is the title of this intriguing-looking new article by Professors Richard Bierschbach and Stephanos Bibas, which is now available via SSRN.  Here is the abstract:

As the real policymakers of criminal justice, prosecutors and other criminal-justice professionals resolve many of the complex debates about justice in sentencing by deciding what charges to file, what plea bargains to strike, and what sentences to recommend.  But they make those value-laden decisions out of sight, with little public input into or oversight of the tradeoffs involved.  This gap between prosecutors as agents and the public as their principal leaves prosecutors free to pursue their own self-interests, risking arbitrary outcomes, endangering the legitimacy of criminal justice, and undercutting public confidence and respect.  Administrative law has long grappled with similar issues, seeking to constrain and legitimate agency decisions made in the public interest by soliciting and responding to public input.  But criminal justice has no comparable mechanisms for public participation.

We propose a system of “notice-and-comment sentencing,” modeled loosely on notice-and-comment rulemaking, to review the range of decisions that cash out at sentencing. That approach would provide the public with advance notice, solicit a broad range of views, require responses to significant criticisms, and elicit statements of reasons to ground appellate oversight.  Notice and comment would operate at the wholesale level on prosecutors’ charging and plea-bargaining policies, as well as sentencing commissions’ guidelines and possibly police enforcement policies.  It might also operate at the retail level within categories of especially significant crimes, soliciting factual information and possibly policy views about individual cases and creating feedback loops on the application of wholesale policies in concrete contexts.  Notice-and-comment sentencing would not only better constrain agents and blend expert and lay perspectives, but also enhance legitimacy and increase public confidence in seeing justice done.

October 14, 2012 at 04:37 PM | Permalink


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Notice and comment is an extra-judicial trial, and ex parte communication. For the comments to be informed, the evidence would have to be public. Offers of location of the bodies in exchange for leniency would not be feasible if public.

Failure to provide notice, periods of comment may invalidate the plea bargain. The comments are predictable, with positive ones from friends, and negative ones from victims.

The public does not want to add procedure. It wants to lower the crime rate. How does this proposal lower the crime rate? It will require more time, cost, staff, grow government and rent seeking.

Posted by: Supremacy Claus | Oct 14, 2012 4:54:12 PM

It sounds like an interesting idea in principle. Since both judges and public defenders are also paid with taxpayer dollars, and like prosecutors are officers of the court; and since the basic idea is to throw sunshine into the system, then, if we go this route, let's have equal notice and comment on their decisions as well.

Posted by: Bill Otis | Oct 14, 2012 5:20:45 PM

This rule would require amendment as well:

Rule 410. Pleas, Plea Discussions, and Related Statements

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Posted by: Supremacy Claus | Oct 14, 2012 8:03:14 PM

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