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August 31, 2011

Who should have the least sentencing power?

In addition to closely reviewing the 1949 Williams v. New York case (which can be read in full here and is worth the time to read in full), we will discuss in class on Thursday which particular institutional players tend to exercise the most formal and informal sentencing power, and whether and how you think these institutional players should have their powers limited and regulated.  Long story short: legislatures, prosecutors, trial judges, and parole/prison officials have historically wielded the most sentencing power, but many modern reforms have given larger roles to sentencing commissions and appellate judges.

Here (and perhaps also in class), I am eager to look at this issue from the other side of the equation: that is, I want to hear whether and why you might think certain institutional players should have little or no formal or informal sentencing power.  Again, history is somewhat instructive: victims, police, juries (except in capital cases) and appellate judges have historically wielded little sentencing power, but many modern reforms have given larger roles to victims and appellate judges.

As we will discuss, every institutional player that actively seeks to be involved in the sentencing process usually can have some input or impact.  But that practical reality should not prevent a sentencing system (or us) from exploring how to limit the authority of those players we believe should have the least power to impact sentencing outcomes.  (There are lots of general reasons why we might want to limit and/or regulate a particular player's sentencing power: e.g., we fear that particular institutional player has a certain problematic/systematic bias, or will too often pursue a disfavored punishment purpose or form, or will be too subject to undue influences by other actors, or will make inconsistent or less-than-thoughtful decisions.)

So, who do you think should have the least sentencing power?  Why?

August 31, 2011 in Who decides | Permalink


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My personal bias here will show itself, but prosecutors should be marginalized as much as possible in the sentencing process. Too often, prosecutors show that they want to go for the career-boosting "big win", and many prosecutors figuratively (and perhaps literally, for all I know) salivate at the prospect of a death-penalty case. Furthermore, prosecutors are generally more interested in their "win" column than they are in discovering truth and justice. The Rules of Professional Responsibility should be re-tooled so that prosecutors are absolutely discouraged from bringing cases unless they themselves believe in it "beyond a reasonable doubt" --- no more kicking it to the jury to figure it out for you --- and the grand jury system should be more adversarial. A mere indictment is more devastating than ever in a person's life. Of course, the side note here is that sentencing would not be as screwed up as it is if the United States would end Prohibition Part II: Electric Boogaloo and end the War on Some Drugs.

Posted by: Steven Druckenmiller | Aug 31, 2011 8:14:26 PM

Considering all of the possible players in the sentencing game, I find it hard to say who should have the greatest and the least amount of say in the process. My gut reaction is that legislators should have the least amount of power, which I realize many people might disagree with. I can't say I'm anywhere close to being as familiar as I should be on the law-making process as a whole, but from what I know, it is a long, potentially redundant, and not particularly efficient, system. To think that legislators, operating in a slow process that moves at a snail's pace, hold a significant amount of power when it comes to sentencing, leads me to believe that sentencing guidelines might suffer, especially in terms of staying up-to-date with new legal developments (sexting, for example). However, without legislators holding a decent amount of power, how could those laws even have the chance to be updated? I would think that sentencing commissions would have a more complete and realistic picture than legislators would, which would allow them to keep sentencing guidelines more current than legislators could. Plus, since sentencing commissions focus on one, specific topic, rather than many (like legislators), it gives them the opportunity to ideally have a wealth of knowledge on sentencing.
I might be looking at this in too much of a black-and-white sense, but it seems like sentencing commissions are more well-versed in the effectiveness of different sentencing tactics.

Posted by: Allison S. | Aug 31, 2011 9:34:19 PM

Awesome comments on a hard question, folks, keep it up....

Posted by: Doug B. | Aug 31, 2011 10:37:25 PM

Allison, it seems to me, as a practical purpose, that keeping a legislature de minimis in the sentencing process, as they are the ones who write the laws and, despite their flaws, I would have no desire to abandon the republican system of government and give it over to a kritarchy, or even a rule by an unelected council. Given that the administration of a criminal [something] system (I hesitate to use the word "justice" because that word tends to lack definition) is one of the few legitimate functions of government, I would rather sentencing come from an inefficient but answerable-to-the-people institution like legislators. Of course, we could say that in a representative republic, we are all to blame for the sorry state of sentencing in cases like sexting, and I would not necessarily disagree.

Posted by: Steven Druckenmiller | Aug 31, 2011 11:41:46 PM

I've got to say the victim. After two weeks of class I realized that I made a huge mistake with putting retribution at the top of my theory of punishment preseason rankings. When it comes to sentencing, I really don't care what the victim has to say. They are probably the most biased person besides the newly convicted defendant.

To me, the criminal justice system shouldn't exist to give victims what they want, it's not really about them at all. Instead it's about society punishing offenders. For me it's more about the effectiveness (deterrence, incapacitation) and uniformity of sentence that matters to give the system legitimacy and purpose.

Posted by: Colin P | Sep 1, 2011 9:19:34 AM

I would have to say that legislatures have too much sentencing power. In an effort to please their constituents, legislatures pass ridiculous mandatory minimum sentencing laws and create 'three strikes' style laws that make no sense, often serving only the retributive goals of sentencing (and this is questionable, when people are serving extended prison terms for minor drug crimes). They ignore the rest of reality, like overcrowded prisons, and budget deficits. This is why sentencing commissions make some degree of sense; They are not accountable to ignorant constituents like lawmakers are.

Also, although I don't necessarily think it's a bad thing, probation officers seem to have a lot of control at least in the Federal system, as they write the presentence reports which calculate sentencing ranges in line with the federal guidelines. They have the ability to recommend enhancements and departures from the guidelines. Because they are somewhat neutral, they judges are more likely to take their recommendations then those of the prosecutor or defendant. Perhaps this is good?

Posted by: Melissa | Sep 1, 2011 12:02:53 PM

I believe that Prosecutors have too much say in sentencing. I think decisions should be made by less biased parties. It is not fair to give more weight to the state's opinion on a sentence than the defendant's. I think sentencing should be guided by the legislature and decided by the judge. If a judge is to consider what the prosecutor (or state) thinks is fair, then the same consideration should be given to the ∆'s view.

Posted by: Sally S. | Sep 1, 2011 12:14:42 PM

I believe the victim ought to have less of an impact on sentencing, as Colin said, because of the bias issue. This is not to say that the harm caused or the moral depravity exhibited should be ignored -- both should absolutely be considered, but by a more impartial, objective reviewer. This is why legislators draft the outer limits of punishment, otherwise there would be no codified justification behind stopping the victim of a petty theft from asking for excessive sentences to quell his/her personal outrage.

I disagree that the prosecutor has too much influence: most prosecutors (if they're doing it right) will make recommendations based upon comparable cases, sentencing guidelines, and accepted office policies. Further, their suggestions are countered by recommendations from defense counsel, and the judge is bound by neither.

Posted by: Heather W | Sep 1, 2011 12:57:28 PM

My only statement on the notion that the legislature should be minimized is that the legislature in any given jurisdiction is the most powerful institution: it controls money and passes laws. Ultimately, changing the public's views on sentencing is the only tactic that is going to work. Sentencing commissions, parole officers, and most other stakeholders in a State-administered criminal [something] system ultimately rely on the beneficence of the legislature, and the only entity to which the legislature is answerable is the public.

Posted by: Steven Druckenmiller | Sep 1, 2011 1:21:42 PM

I wanted to play devil's advocate to what Prof. Berman had to say about Colin's post in class. He mentioned that retributivists can take either position as it pertains to the importance of victims in the sentencing process. I generally agree with what Colin had to say about the role of victim's in the process, but I think a utilitarian (deterrence) argument can be made that the victim should be the most important person in the process.

This would require a radical departure from the way our current criminal justice system operates, but if the victim were to be the judge, jury and executioner you get the two most important aspects needed for deterrence to be effective: swiftness and severity. Now, assuming we are not going to remove all other players from the system, then I agree that victims should play the smallest role in the process. However, there is a utilitarian argument to be made otherwise.

Posted by: Kevin S | Sep 1, 2011 4:58:50 PM

Even if you gave victims an increased say in sentencing, how much of that "say" would really come from the victim?

Anyone who has worked on the defense side will tell you that prosecutors coach the heck out of their victims. I'm pretty sure they would do the same before sentencing hearings in an effort to get terms that would serve their wider political and social policy goals.

Posted by: Elbert A | Sep 2, 2011 9:42:42 AM

Not quite sure yet who I would say should have the least sentencing power, but I have always questioned the amount of discretion given to Pretrial Services. While I do understand the importance they serve in providing federal judges with pre-sentence investigation reports, at the same time, why should they even recommend a sentence? I believe their primary duty should be to research and investigate criminal defendants’ histories, not to determine the weight mitigating factors should play on the ultimate sentence imposed. This decision is one that I believe should be entrusted to judges alone, and while I realize Pretrial Services recommendations are just that, a recommendation, at the same time I believe judges take such “recommendations” very seriously, maybe even to the point that it trumps their own position.

Posted by: Isabella | Sep 6, 2011 10:14:53 PM

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