Norval Morris's Contributions to Sentencing Structures, Theory, and Practice (original) (raw)
Related papers
Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines
2012
Federal sentencing law is in the midst of a period of profound change. In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense-and offender-specific factors. The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years. But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant's sentence, violated the Sixth Amendment. The Court's remedy was to render the Guidelines advisory only-a starting point but not necessarily the endpoint for sentencing decisions. Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice. Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant. The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure. Kimbrough authorized policy-based variances. Gall instructed courts how to apply the advisory * Scott Michelman is a staff attorney with Public Citizen Litigation Group. Jay Rorty has his own practice specializing in criminal defense. In their former employment with the American Civil Liberties Union, Criminal Law Reform Project, the authors were counsel to the defendant in United States v. McCarthy, No. 09 Cr. 1136, 2011 WL 1991146 (S.D.N.Y. May 19, 2011), discussed in the text. The authors also co-authored testimony to the United States Sentencing Commission in support of retroactivity for the United States Sentencing Guideline Amendments implementing the Fair Sentencing Act of 2010, also discussed in the text. The authors would like to thank Amy Baron-Evans, Doug Berman, Aaron Caplan, and Bob Weisberg for their insightful commentary and helpful suggestions on the draft manuscript, and Nora Ahmed and Rachel Judge for both outstanding research assistance and thoughtful substantive feedback throughout the writing process. Any remaining errors are the authors' own.
Sentencing Law and Policy: Cases, Statutes, and Guidelines
This coursebook provides materials for a 3-unit course or seminar on sentencing law. In a criminal justice system where more than 90% of cases are resolved through plea bargains, sentencing law becomes the primary legal arena for the daily work of the practicing criminal lawyer. The field of sentencing also provides a case study in the dynamics of law reform, and wrestles with profound and ancient themes of justice and the nature of law: what makes rules and procedures wise, which institutions should design and implement these rules, how much discretion the rules should (or must) allow in each case, and what impact the law will have on human lives. The book surveys common elements that operate in several different sentencing systems: the federal sentencing guidelines, state guideline systems, discretionary indeterminate sentencing, and capital sentencing. The organization of the book covers the institutions and basic design choices for sentencing systems (Chapters 1-3), the inputs t...
2016
In Norval Morris's "limiting retributivist" theory of punishment, considerations of "just deserts" set upper and occasionally lower limits on sentencing severity. Other purposes, including general deterrence, considerations of equality, and "parsimony," provide the necessary "finetuning." Proponents of just deserts, such as Andrew von Hirsch, give much greater weight to retributive and equality values and would allow almost no role for other sentencing goals in the determination of the severity of individual sentences. The relative severity of sentences must be closely linked to desert, and parsimony should only be considered in determining issues such as the overall severity of the sentencing scale. Minnesota's sentencing guidelines, in effect since 1980, are based on a theory of just deserts, but also give substantial weight to utilitarian sentencing purposes. This was true even of the original guidelines and is more true today. The ...
Guidelines are not enough: The need for written sentencing opinions
Behavioral Sciences & the Law, 1989
Guideline sentencing systems, including the new federal guidelines, have not settled on a clear conception of when and how a trial judge should explain sentences. Indeterminate sentencing systems did not have a tradition of w d e n sentencing decisions and recent sentencing reforms do not focus on the trial judge% role. This article suggests the many advantages of written sentencing opinions. Initial experience under the fedeml sentencing guidelines bohters the conclusion that written sentencing opinions in appropriate cases-including both sentences "within" guidelines and guideline "departures"-are the next step in the evolving law of sentencing and the best way to recognize trial judges as an essential engine of principled change. Guideline sentencing systems have not settled on a fkm conception of the sentencing judge's role. Reformers have rejected the unlimited discretion granted sentencing judges in indeterminate sentencing schemes. Universally they have rejected the extremely limited discretion given judges under mandatory and fixed sentencing systems, noting both the tendency of such systems to be ignored and the degree of unfairness they generate. From between the extremes of unlimited discretion and mandatory sentencing a notion of structuring and guiding judicial discretion has emerged. Structured sentencing provides rules that allow a judge to sentence each case within a "legal" framework (see Tonry, 1988). Different views of the sentencing judge's role are possible within a guideline system. Two distinct visions of the trial judge's role are hidden within the reform