Today’s Lecture: Sentencing Session Topic(s) 15 19/20 Lecture Organization: Class Announcements The Ethics of Legal Discretion Mike Tyson Trial Class Announcements notes -- pick up your notes Some issues: • NDE = Not detailed enough (NDE in places) • H to D = hard to distinguish • QD = quality decline Class Announcements retakes • schedule a retake with me • no grade penalty (you get the higher score) • can re-take sections, if you want Thursday, in class • not going to lecture Thursday Class Announcements final notes • due when you take the final -- Thursday, June 10th, 3:15, here • penalized if late (no excuses) Papers • due in class on Thursday, June 3rd • penalized if late Class Announcements Reading for the Final -- Make sure you doing your reading for the final -- Expect a more significant reading segment for the final Questions? Sentencing discussion -- before we begin, we want to discuss … Question #1: Question #2: How would you sentence someone? What do yourself How would you wantyou think be judged? tois relevant? Sentencing ethical issues circumstances rules -- people tend to want to judge others by rules and themselves by circumstances situational ethics -- the view that ethics is always contextual Sentencing ethical issues social setting Question: Does family and home life and personal struggles matter in deciding how to punish someone? Discretionary Sentencing Regime intro -- a system where the judge has discretion over the sentence -- and where the power over sentencing is SHARED (among the branches of government) -- used in a majority of the states (although not the trend) Discretionary Sentencing Regimes 3 basic branches of government Legislature Executive Judicial Sentence Definition Determinate Sentence Indeterminate Sentence Enhancements Mandatory minimum “serve 1 to 5 years” “serve 60 days” Gradations if offense Sentence doubling Three strikes Discretionary Sentencing Regimes Legislature Executive Judicial Prosecutor’s Power Pardon Parole Board Pleading Alteration: 1. Governor controls this Administrative Body A. dropped counts Governor usually appoints B. lesser included Decide matters of parole C. drop enhancement (My client’s hearing) E. change charge Discretionary Sentencing Regimes Three counts: 1 5 Legislature 1 Executive 5 Judicial “3 to 15 years in the pen” 1 5 Serving them all at one time (3 for 1 special) = “concurrent” Serving one after another = “consecutive” Sentence Suspension Sentence Shortening 1. Probation 1. Rule 35 2. Alternatives to incarceration: 2. concurrent/consecutive A. home confinement 3. probation with jail as a condition B. in-patient treatment -- “weekend jail” Discretionary Sentencing Regimes Legislature Executive Judicial Sentence Suspension Sentence Shortening 1. Rule 35 2. concurrent/consecutive 3. probation with jail as a condition -- “weekend jail” Discretionary Sentencing Regimes Grid Sentencing Regime! Legislature Executive Judicial Sentencing Power = Shared Political Power Something will come along that will radically change it Grid Sentencing Regime intro -- a system where the judge has no significant discretion over the sentence -- and where the power over sentencing is NOT shared (among the branches of government) -- used in the federal system Grid Sentencing Regime history of the federal grid -- “Federal Sentencing Guidelines” -- 1984 Crime Control Act (Reagan “tough on crime” bill”) the strange alliance -- conservatives: “liberal judges were giving probation too much” -- liberals: “there was discrimination in sentencing” -- Hence, the Ted Kennedy, Ronald Reagan alliance Grid Sentencing Regime history of the federal grid basic idea -- uniform sentencing will solve all the problems -- ended two centuries of “normal” judging practice Grid Sentencing Regime strange circumstances of passing budgetary attachment • The House judicial committee blocked it • Budget crisis in the 1980s • “continuing appropriation” bill • attached the guidelines to the temporary funding bill -- procedural loophole • The House voted on an emergency spending bill, and received the Guidelines in the fine print. Grid Sentencing Regime how it works -- probation and parole are eliminated -- you are sentenced by a grid, not a judge (federal incarceration and prison populations have skyrocketed) Calculating a Federal Sentence 5 basic steps -- five steps to calculating … Calculating a Federal Sentence 1 Base Offense Level 2 Criminal History 3 Enhancements 4 Acceptance of Responsibility 5 Relevant Conduct Base Offense Level left-hand side of the table (reading down) 1. Marijuana: up to 250 G = 6 1 Kilo = 8 2. Cocaine: any amount = 12 3. Crack any amount = 12 Criminal History The right-hand side of the table (reading across) Enhancements w/in a 1000 feet of a school +2 Underage victim +2 Feeble victim +2 Pregnant victim +2 Using a beeper +2 Victim is an immediate family member +2 Victim is a police officer +2 Physically restraining a victim +2 Leader of the pack +2 - 4 Acceptance of Responsibility Pleading guilty very early -2 Super Acceptance of Responsibility Relevant Conduct 1. Dismissed Counts 2. Uncharged Conduct 3. Even Acquitted Counts! Standard of proof at a sentencing hearing: a preponderance of the evidence (not reasonable doubt!) Rules of evidence do not apply to sentencing hearings! No jury, the judge decides No situational ethics allowed! Legislature Executive Judicial Prosecutor’s Power Pardon Parole Board Legislature Executive Judicial Sentence Suspension Sentence Shortening Legislature Executive Judicial Sentencing commission Sentence Definition Determinate Sentence Indeterminate Sentence Enhancements Guideline Issues Stinson Case -- 7.5 grams of cocaine base and heroine at the time of arrest -- 2 prior drug convictions with similar kinds of amounts -- a “Career criminal” under the guidelines convicted of a new crime receives a 30 year sentence -- Trial judge declared this to be cruel and unusual punishment Supreme Court: upheld the conviction; judges cannot deviate from the almighty grid. Guideline Issues legalized disparity -- 92.6 % arrested for crack cocaine are African American. -- 70.3 % arrested for powdered cocaine are white. -- Crack and powdered coke are treated differently under the Guidelines (crack is treated much more severely). -- The average crack cocaine sentence is 120 months, and is greater than: (a) the average sentence for robbery (103 months) (b) the average sentence for arson (76 months); (c) the average sentence for sexual abuse (64 months) (d) the average sentence for manslaughter (31-months) Guideline Issues LSD Many times, possessing $1,000.00 worth of LSD gets a punishment similar to having $120,000 worth of heroine at the time of arrest. Guideline Issues Judicial Discretion relate this lecture to the one on trial judging is judicial discretion good or bad?
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