Grid and Discretionary Sentencing by Wittgenstein

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									          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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