Simplified Guidelines—Now or Never

Disparities of sentencing in similar crimes cause a typical problem; Law scholars devoted their time to reconcile the debate “should the crime fit with the individual or should the individual behavior fit with the type of crime that she or he committed?” This has remained an issue in criminal sentencing. It is the most crucial stage in criminal justice system because crime is an inevitable phenomenon in human social life. In addition, sentencing is a means designed to give notice for the general public by described punishable crimes and to punish a criminal that he/she have to be convicted by a court of law. In ancient times, punishment was premised on the principle of “an eye for an eye, a tooth for a tooth” and punishments were degrading and inhumane by today’s standard. These days punishments are relatively humane and focus on rehabilitation. Many universal human right instruments provide for the rights of convicted persons and many countries are members of these instruments. Sentencing disparity is a problem everywhere, and countries have adopted sentencing guidelines to solve this problem. Ethiopia is one of them that adopted and revised the first and the second sentencing guidelines in 2010 and 2013 respectively. The study has applied qualitative and doctrinal legal research method that revealed the following points. The general objective of this study is to explore whether the Ethiopian Federal Supreme court sentencing guidelines could tackle the unwarranted sentencing disparities in federal courts or not. In addition, the main purposes of the sentencing guidelines have to ensure proportionality, consistency, predictability and fairness of sentencing throughout in the country on federal matters. However, the principles of alike cases were not getting uniformity of decision that have been realized in many scenarios; the sentencing guidelines from design to practices shown that it was unable to stop unwarranted disparities of sentencing due to different factors. The lack of clarity of sentencing guidelines, the lack of mutual understanding of the legal practitioners to the sentencing guidelines, lack of supervision and controlling mechanisms of the sentencing guidelines were considered as the root causes of sentencing disparities.

Research Summary The U.S. Sentencing Commission (USSC) released a report in March 2010 concluding that disparity in federal sentencing has increased in the wake of the U.S. Supreme Court decisions in United States v. Booker (2005) and Gall v. United States (2007). In light of this USSC report, we provide an alternative set of analyses that we believe provides a more complete and informative picture of racial, ethnic, and gender disparity in federal sentencing outcomes post-Booker and Gall. We attempt first to replicate the USSC's models. Then, making different modeling assumptions, we present alternative models of sentencing outcomes across four time periods spanning fiscal years (FY) 2000 to 2009. We find that post-Booker/Gall: 1 Race/ethnic/gender disparity in sentence length decisions is generally comparable with pre-2003 levels; 2 African American males’ odds of imprisonment have increased significantly post-Gall; 3 Immigration cases account for a significant proportion of sentence length disparity affecting Black males; 4 “Government-sponsored” below Federal Sentencing Guidelines sentences are a greater source of racial disparities than judge-initiated deviations. Finally, because much of the debate surrounding the Booker decision involves questions of whether the guidelines must be mandatory to be effective, we also present analyses of federal sentencing disparities prior to the 1996 Koon v. United States decision, a period when the guidelines were arguably most constraining of judicial decision making. Comparing post-Booker and Gall to pre-Koon sentencing practices, we find: 5 With the exception of incarceration disparities for black males, all race/ethnic/gender groups are sentenced either the same or less harshly (compared to whites) under the new advisory system. Policy Implications One of the chief policy aims of the sentencing guidelines, and the sentencing reform movement more generally, is the reduction of racial, ethnic, and gender disparities in punishment. In the aftermath of the Booker and Gall decisions, which made the Federal Sentencing Guidelines effectively advisory, many commentators have feared that federal judges, as a result of their increased discretion, may use offender characteristics at sentencing, and thus disparities based on race, ethnicity, and gender would increase. A recent USSC report, which found that sentencing disparities have increased in the wake of Booker and Gall, suggests that such fears are warranted and has further strengthened calls for a policy fix to post-Booker sentencing. One such proposed policy solution was House bill H.R. 1528 which would have, among other things, transformed the Sentencing Guidelines into a complex system of mandatory minimums in order to curb judicial discretion. In response to the USSC report as well as policy solutions to introduce a more rigid sentencing system, we suggest that the federal sentencing data, as yet, provide insufficient evidence of increased post-Booker disparity to warrant renewed restrictions on judicial discretion. Our analysis, generally, shows that sentencing disparities post-Booker and Gall are comparable to those just prior to these decisions, and are actually considerably less than in earlier time periods when the guidelines were more rigid and constraining. This latter finding raises serious questions about whether the guidelines must be mandatory in order to limit racial/ethnic/gender disparities. However, we do find that disparity in the imprisonment decision for black males increased post-Gall, which is ground for concern. Yet our results do not lend support to policy solutions that would seek to simply “re-mandatorize” the guidelines. Because our analysis shows that the bulk of extralegal disparities are observed in the incarceration decision and not the sentence-length decision (a distinction that is not made in the USSC report), reintroducing a rigid sentencing scheme may actually exacerbate incarceration disparities while having limited impact on sentence length disparities. Overall, rather than “blanket” solutions such as broad reductions in judicial discretion, we think that any policy changes to the Sentencing Guidelines should be focused on areas that are shown to be associated with sentencing disparities. According to our results, such areas include incarceration decisions, immigration offenses, and government-sponsored downward departures. Ultimately, we think careful consideration of the most problematic areas of sentencing, including those decisions made by prosecutors as well as judges, will be most effective at curbing extralegal disparities and increasing fairness at sentencing, both of which were original goals of the sentencing reform movement.

Contemporary research on criminal sentencing has analyzed sentencing under numerous sentencing policies, yet the effect of sentencing policy on outcomes and disparity is not known. A variety of sentencing guidelines systems, one of the more common sentencing policies, exists throughout the country. In addition, recent Supreme Court decisions regarding sentencing guidelines are likely to produce alterations to several state sentencing policies over the next few years. Using data from the state of Florida, the current study examines the effects of policy transformation on sentencing disparity within the focal concerns of sentencing perspective. The authors view sentencing guidelines as a practical constraint on sentencing decisions that influence other key variables. The results indicate that sentencing policy transformation has an important effect on both sentencing decisions and on the factors that shape those decisions. The findings suggest that future sentencing research and theoretical development would benefit from incorporating measures of policy differences in its analyses.

Studies have examined the effects of sentencing guidelines on sentencing disparities and prison populations, but little research has been done on their impact on correctional personnel. This study reports on a survey of probation agents, assessing their views of the Minnesota Sentencing Guidelines. Results show disagreement on the agents’ role in pre-sentence investigations, and difficulties with regard to criminal history scores, plea negotiations, and working under the “just deserts” philosophy of the sentencing guidelines. The findings indicate a need for more administrative and judicial attention to clarifying probation agents’ roles and responsibilities under the sentencing guidelines.

The Supreme Court has enacted its Regulation Number 1 Year 2020 regarding the Sentencing Guidelines on Articles 2 and 3 of the Anti-Corruption Law (PERMA No.1/2020), in which, one of its objectives is to avoid or overcome the disparity of sentencing problemcaused by orimposed throughthe court’s decisions, particularly, in corruption cases having similar characters. PERMA No.1/2020 constitutes the new law development in connection with the sentencing guidelines, and directly affects the twomain sourcesof sentencing disparity problems, i.e.the law/regulation and judge factors. Therefore,this PERMA No.1/2020 has two main important roles. Firstly,it provides the interpretation and improvement on the formulation of articles 2 and 3 of the Anti-Corruption Law, by stipulating and quantifying, among others, the category of state loss along with state economic loss, andthe scale of the minimum and maximum sentence elements as determined in those articles. Secondly, it provides the judges with the guidelines which have to be applied by them in the court proceedings, and this regulation will not be contrary with their independency.Furthermore, it is expected that this PERMA No.1/2020 will beableto support and achieve the equal treatment for the offenders, uniformity of judge’s opinion, as well as, the uniforminity in the implementation of laws andconsistency of the court verdicts in connection with the law enforment processes as a whole.

This chapter analyzes only a few cases, the existence of The Prosecution Project allows for the immediate ability to test theories against a larger sample and gain a better understanding of their generalizability. The Federal Sentencing Guidelines (FSG), which will hereafter be referred to as the FSGs, are provided by the United States (US) government to suggest recommended sentence lengths based on the severity of the crime and defendant's previous criminal history in an effort to standardize sentencing. The US government first introduced the FSGs in 19874 and the Supreme Court confirmed the constitutionality of their creation in 1989. In general, sentencing guidelines largely utilize the severity of the offense and the defendant's criminal history to determine sentence length. Criminology scholars Engen and Gainey address these factors through using statistical modeling to analyze sentence length, utilizing the variables prescribed in sentencing guidelines.

Determinate sentencing reform in Minnesota aimed at enhancing sentencing uniformity and neutrality. According to official reports by the Minnesota Sentencing Guidelines Commission, both of these goals were largely (although not completely) achieved during the first year of guideline implementation. However, methodological shortcomings in these reports question the true effectiveness of sentencing reform. Moreover, Minnesota's felony sentencing guidelines do not encompass the full range of sentencing options available to the courts. Our study reanalyzes the Commission's data to evaluate the degree of sentencing uniformity and neutrality achieved under regulated and unregulated sentencing decisions. Our results generally confirm the Commission's reports that regulated sentencing practices were significantly more predictable and neutral than unregulated practices. We conclude that Minnesota's reform efforts have succeeded where those other states have failed because of the presumptive (i.e., legally mandated) nature of their sentencing guidelines.

This thesis presents a comparative study of how the courts in various common law jurisdictions sentence the crime of rape. The thesis begins by considering the seriousness of the offence through a review of the medical literature on the physical and psychological effects of rape. The legal and philosophical literature on the wrongness of rape is then considered, along with the victim’s role in sentencing. The discussion then turns towards sentencing practice in four jurisdictions: Scotland, England and Wales, New Zealand, and the Republic of Ireland. By employing a legal comparativist approach, the thesis compares rape sentencing across these jurisdictions in order to suggest possible reform of how the offence is sentenced in Scotland. The study thus presents a historical, philosophical and juridical analysis of rape sentencing. In particular, reliance is placed on analysis of reported case law, appellate sentencing guidance, appellate sentencing guidelines and, where applicable, formal guidelines issued by statutory bodies along with associated academic commentary. Having considered the sentencing methodology of the courts in each of the four jurisdictions and having proceeded to consider the nature of any general sentencing guidance or particular sentencing guidelines, the thesis argues that reform of Scottish sentencing practice for rape is required. In particular, it is argued that sentencing guidelines are required in Scotland to guide judicial sentencing discretion. It is also argued that such sentencing guidance as does exist in Scotland – especially regarding the sentencing of relationship rape – neither adequately reflects the seriousness of the offence nor reflects modern societal attitudes towards rape. Drawing on the experiences of the courts in the three other jurisdictions examined in the thesis, the study concludes by making suggestions for the reform of Scottish sentencing practice.

Chapter 8 undertakes the same task but in relation to sentencing guidelines. England and Wales is the world leader in narrative sentencing guidelines and many jurisdictions look to the Sentencing Council of England and Wales when considering establishing their own guidelines system. The guidelines system in this jurisdiction is now rather advanced and thus, there is plenty to critique and seek to draw lessons from. There are guidelines now in their second iteration with supplementary case law amplifying the structure and guidance offered. Chapter 8 examines both types of guideline: offence-specific and overarching. Conclusions are drawn as to the limitations of a guidelines scheme, particularly one in narrative form to form a clear determination as to whether the narrative sentencing guidelines of the Sentencing Council in fact promote greater consistency in sentencing.

Research Article| December 01 1989 Considering Offender Intoxication at Sentencing Charles J. Felker Charles J. Felker Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (1989) 2 (6): 192–194. https://doi.org/10.2307/20639224 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Peer Review Share Icon Share Twitter LinkedIn Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Charles J. Felker; Considering Offender Intoxication at Sentencing. Federal Sentencing Reporter 1 December 1989; 2 (6): 192–194. doi: https://doi.org/10.2307/20639224 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All ContentFederal Sentencing Reporter Search This content is only available via PDF. Copyright 1990 Vera Institute of Justice, Inc. Article PDF first page preview Close Modal You do not currently have access to this content.

In 1984 Congress passed the Sentencing Reform Act (the Act)1 in response to the widely held view that defendants who committed similar crimes, under similar circumstances, were receiving grossly disproportionate sentences in federal courts.2 The Act established the Federal Sentencing Commission (the Commission) to promulgate mandatory sentencing guidelines (the Guidelines) for federal judges.3 After long debates, the Commission promulgated the Guidelines, which took effect in November 1987.4 For drug and money crimes,5 the Guidelines require a trial judge to make, at sentencing, an independent determination of the amount of contraband involved in the transaction. Additionally, the trial judge must determine whether certain aggravating or mitigating circumstances exist. The Guidelines are silent, however, as to what standard of proof the trial judge should apply in determining the actual amount of drugs or money involved or in determining whether aggravating or mitigating circumstances exist.

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 Law Institute, are the only successful sentencing reform model. In four decades, no competing model of comparable detail and scope has been seriously proposed.

Since shortly after the implementation of the Sentencing Guidelines, the Department of Justice has sought to constrain the discretion of prosecutors at the charging, plea-bargain and sentencing phases in order to ensure the faithful application of the Guidelines. The latest manifestation of this policy is the so-called "Ashcroft Memorandum," which requires prosecutors to charge and pursue the most serious, readily provable offense and advocate a Guideline sentence in nearly all cases. Although this policy arguably made sense when the Guidelines were mandatory, it makes less sense now that they are advisory. This article argues that the Department should revisit this policy and return some limited discretion to line prosecutors, particularly at sentencing. Under an advisory Guidelines regime, the Department's current policy of strict adherence to the Guidelines takes prosecutors out of the sentencing process, perpetuates some of the failings of the mandatory Guidelines approach, and prevents line prosecutors from participating in the formulation of sentencing policy. If the Department departs from its current approach, however, the challenge is to determine how much discretion to grant prosecutors. This article suggests various substantive and procedural mechanisms to cabin the discretion exercised by line prosecutors and to ensure uniformity and transparency in sentencing.

This work investigates three related topics involving some of the consequences or perceptions of cybercrime. These consequences and perceptions have important policyimplications, ranging from potentially billions of dollars in societal costs that depend on credit card reissue decisions to the perceived fairness of sentences imposed on people convicted of cybercrimes. I analyze these consequences and perceptions using a combination of legal, empirical economic, and criminological analyses. First, this work analyzes at the economics of credit card reissue after a data breach. Using a parameterized estimation model based on publicly-available information, it compares the cost ofreissuing cards to the total expected cost of fraud if cards are not reissued. The model suggests that automatically reissuing cards may have lower social costs than the costs of waiting until fraud is attempted, although the range of results is considerably broad. The results also show how alack of quality public information about data breach and identity theft can make informed public policy decisions more difficult. Second, it explores a potential misalignment between the factors that contribute to cybercrime sentences and the importance of those factors in public perceptions. It presents the results of two empirical studies that measure public perceptions of different factual attributes ofcybercrime. The studies show that Computer Fraud and Abuse Act (CFAA) sentences are indeed out of alignment with the public’s views and provide empirical support for arguments that CFAA sentencing is miscategorized in the federal sentencing guidelines. Third, it addresses the question of whether CFAA subsection (a)(2), coveringunauthorized access to a computer to obtain information, should be considered a trespass, burglary, or fraud statute. It does this through an analysis of case records and sentencing data from 1,095 real-world CFAA sentences, and an experimental study of perceptions of 499 participants on Amazon Mechanical Turk. The results of both studies suggest that (a)(2) is not like trespass or fraud, at least in terms of current punishments or perceptions, and lend support to arguments that CFAA sentencing should be covered under its own section of the sentencing guidelines.

ABSTRACTJudicial decision-making has significant consequences for individuals, families, local communities, and social institutions. Mandatory sentencing guidelines were originally created to control disparity in the sentencing process. After years of implementation, they further embedded rationalization in the system, which has formalized complex processes leading to mass incarceration. However, recent court cases have made guidelines advisory rather than mandatory in some states. The purpose of this study is to examine Michigan judges’ experiences with sentencing guidelines one year after shifting from mandatory to advisory guidelines, and to examine how guidelines constrain and enable discretion in judicial decision-making. It draws upon theories of the rationalization of criminal justice organizations and past research on criminal courts. Our results show (1) guidelines serve as an influential ‘starting point,’ and frame sentencing decisions, (2) formal and substantive rationality both continue to influence sentencing, and (3) judges perceive the shift to advisory guidelines will only have minimal effects on sentencing patterns across the state.