Sentencing Outline

SENTENCING

Impt because 95% cases D plead guilty)

1st, Discretionary model - 19th century to 1970s

• Judge has wide discretion to sentence, no appeals/appellate review

• Williams shows discretionary model at work

  • Judge can look at confidential information, hearsay, unproved allegations to determine sentencing

    • Ex. Williams - considered info from pretrial investigation from probation officer

  • Standard is preponderance of evidence

  • BUT holding no longer applies in capital cases

    • In capital cases unconstitutional to (1) give judge wide discretion (2) offer only thin procedural protections in sentencing

• Rationale: proportionality, deterrence, incapacitation; less process because of administrative efficiency

• Criticism: too lenient, disparities (disadvantage black and poor people)

2nd, Introduction of parole - 20th century

• Concern of rehabilitation

• Judge sets maximum punishment, parole board decides ultimate date of release

• Still a lot of discretion: both judges and parole officers

NOW, reforms

**note different rules for capital crimes

(1) mandatory minimums

• Effects

  • (1) prosecutor discretion increases

    • Huge negotiation power (hurts defendants - Vasquez: prosecutor gives 5 mand min)

  • (2) disparities not reduce, actually increased

    • Because prosecutors inconsistently apply (can choose b/t law with m and law without), black Ds more likely to get mm

  • (3) no crime reducing effect

    • Bc inconsistently applied

    • People don't know about mm

    • People do know about mm but think they can bargain around it by being an informant

  • (4) increased sentence lengths (ex, drug sentence longer than homicide, child porn longer than child sex abuse)

• Mitigating factors only matter within the range

• Past criminal history plays a huge role (prior convictions, arrests, statements of probation officer) - used for risk assessment

• Federal mm prevalent, only for specific crimes they think judges had been too lenient on (drugs, firearms)

(2) sentencing guidelines

• Old system

  • Mandatory, based on points

  • Not consider family, community, age, mental or emotional factors, military service

  • Only get around this if crime falls outside of the heartland

  • Only check on prosecutors is the presentencing report, but also ensures they did not bargain down

  • Based on harm-based retributivism, no concern of subjective intent

  • Point addictions mostly, some deductions (minor role, assistant to gov, accept responsibility)

  • Declared by SCOTUS as UNCONST in 2005, but not struck down, made advisory (still anchoring effect)

• Current 18 U.S.C. 1335 - advisory

  • Process

    • Determine appropriate guideline sentence

    • Is departure warranted because crime not in heartland

    • 7 considerations (incl. purposes)

  • 7 considerations at sentencing

    • (1) nature and circumstances of offense AND history and characteristics of defendants

    • (2) need for sentence to reflect the 4 purposes of punishment in sentencing

      • Retribution (not as blameworthy bc circumstances, harm caused (scope and amount), subjetive awareness, identity of victims/how affected - children, sophisticated means, age)

      • Deterrence (risk of reoffending, young, impulse control, past record, signaling)

      • Incapacitation (dangerous? Need to protect public)

      • Rehabilitation (special needs for educational/vocational training, med care, other correctional treatment)

    • (3) kinds of sentences available

    • (4) Sentencing range

    • (5) relevant policy statements by the Commission

    • (6) need to avoid sentencing disparities among Ds w/ similar records guilty of similar conduct

    • (7) need to provide restitution to any victims of the offense

  • To go outside range, judge must provide aggravating/mitigating circumstances to justify decision

  • Criticism:

    • (1) uniformity purges moral judgment...

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