Правосудие and Aarun: A Comparative Look at Russian and Alaskan Sentencing Guidelines and Structures (original) (raw)
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Forty Years of American Sentencing Guidelines: What Have We Learned?
Crime and Justice, 2019
Since 1980, 22 state and federal jurisdictions have adopted sentencing guidelines. Nineteen still have them. No two systems are alike. Experience suggests that any well-designed system requires five core features: a permanent, balanced, independent, and adequately funded sentencing commission; typical-case presumptive sentences and departure criteria; a hybrid sentencing theory that recognizes both retributive and crime control purposes; balance between the competing benefits of rules and discretion; and sentence recommendations informed by resource and demographic impact assessments. Balance is needed in terms of commission composition, between conflicting sentencing purposes, between rules and discretion, and between the influence of the commission, the legislature, and case-level actors. Guidelines proponents disagree about a number of important issues. Some relate to which crimes and sentencing issues should be regulated. Others concern the design details that determine how the system actually works. It is clear, however, that preguidelines regimes of unstructured, highly discretionary sentencing are unacceptable and that commission-drafted guidelines, endorsed by the American Bar Association and the American
Federal Sentencing Reporter, 2012
The U.S. Sentencing Commission has the resources to identify smarter sentencing policies-policies that could save money and reduce prison crowding by shortening sentences for less serious and non-dangerous offenders. Mandatory minimum penalty statutes are particularly wasteful and unfair; they sweep too broadly and require excessively long sentences for over ten thousand offenders every year. And they are unnecessary because an overlapping system of sentencing guidelines is firmly in place. These guidelines could be used to direct correctional resources to the most culpable and dangerous offenders, but instead the guidelines have been distorted, and their credibility undermined, by linkages to unsound statutory minimums. As it did once before in 1990, Congress directed the Commission to undertake a broad assessment of mandatory minimum penalties and their compatibility with the sentencing guidelines." The Commission also has ongoing authority to recommend statutory changes it "finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy."^ One might expect, therefore, that the Commission's recent report. Mandatory Minimum Penalties in the Federal Criminal Justice System (2011 Report), would make a strong case against blunt and wasteful mandatory minimums and in favor of a more finely tuned guideline system that could reflect the Commission's own expertise. Such a report might help convince a majority of Congress that it was right; to pass the Sentencing Reform Act of 1984 (SRA), which created the Commission and gave it a large research mandate. Research-based guidelines might help convince judges that the Commission's sentencing recommendations offer sound advice about how to best accomplish the purposes of sentencing in a particular case, given the available prison resources and the types of offenses and offenders sentenced throughout the system as a whole. However, this expectation is largely disappointed in nearly 600 pages of tables, charts, and analyses in the new report. The Commission weakly echoes the conclusion, from its 1991 report of the same title, that "the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of the sentencing guidelines ... rather than through
Federal Sentencing Reporter, 2020
Recidivism is now the guiding principle of punishment and has become the new hallmark of criminal justice reform, as reflected in the U.S. Sentencing Commission’s recidivism project. So far, the Commission has issued three reports in 2020 alone, which outline the parameters within which “safe” criminal justice reform can proceed. Yet the overly broad definition of “recidivism” and the focus on easily measurable and static risk factors, such as prior criminal record, create a feedback loop. The Commission’s work should come with a warning label. Its recidivism studies should not be consumed on their own. Instead, they must be read in conjunction with U.S. Probation and Pretrial Services recidivism research, which includes data on the impact of programming, treatment, and services on reentry success. Yet, concerns about undercounting recidivism events drive the entire U.S. approach. Western European studies reflect different philosophies and values that explain some of the underlying reasons for the dramatically different imprisonment rates on the two sides of the Atlantic. These recidivism studies raise also questions about the Commission’s role. Its ongoing preference for imprisonment indicates that it continues to consider itself the guardian of incarceration-driven guidelines. The studies reenforce the status quo and the Commission’s role in it. They threaten to propel us into data-driven selective incapacitation and continuously long prison terms for those with prior criminal records, all in the name of public safety.
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.