Sentencing Drug Offenders Justly While Reducing Mass Incarceration

In my paper, I discuss what I believe is the most effective approach to sentencing drug defendants. I start with the proposition that in many, if not most cases, incarcerating drug offenders does more harm than good. Imprisonment contributes to mass incarceration, does not deter unlawful drug activity and has an adverse racial impact. Thus, if a judge can reasonably avoid imposing a prison sentence, he or she should do so. Fortunately, this is the judge’s duty under the law. 18 U.S.C. §3553(a) requires a judge to impose a sentence that is “sufficient but not greater than necessary…” or, in other words, the least restrictive reasonable sentence. Thus, in every case, the judge must first consider whether a non-incarcerative sentence is sufficient. It often will be. In determining the appropriate sentence, a judge should focus on what the offender did and why and what he or she will likely do in the future and pay less attention to such factors as drug type and drug weight. Sometimes, a mandatory minimum sentence will apply and prevent a judge from imposing a fair sentence, but that is outside the judge’s control. Fortunately, because of Booker and its progeny, the Federal Sentencing Guidelines do not pose a similar problem. The judge, of course, must calculate and consider the applicable guideline but in many cases the guideline will be irrelevant to a just sentence. This is so because the guidelines are excessively oriented toward prison sentences and thus frequently conflict with the sufficient but not greater than necessary command of §3553(a). In my paper, I provide numerous examples of sentences that I have imposed and explanations of those sentences to illustrate this approach.

UNIFIED FORMULA OF PUNISHMENT ON THE EXAMPLE OF CRIMINAL PUNISHMENT

Введение: цель статьи – вывести единую формулу наказания. Полученный фундаментальный научный результат может использоваться как в общей теории права, так и во всех отраслевых юридических дисциплинах для анализа феномена наказания и применения в законотворческой, правоохранительной, судебной деятельности, связанной с применением наказаний. Материалы и методы: эмпирические данные о системах уголовных наказаний (United States Federal Sentencing Guidelines); методы классического математического анализа, геометрические методы – нахождение периметра, площади, объема; построение функций Кобба-Дугласа. Результаты исследования: получена единая формула наказания в виде любой из равнозначных: A – WL или A – LP:2 – L2 или A – WP:2 – W2 и дана ее интерпретация.

A Judge’s Attempt at Sentencing Consistency After Booker

This article examines how Judge Jack B. Weinstein, who served as a federal district judge in the Eastern District of New York for 53 years, approached the issue of consistency in sentencing after the Federal Sentencing Guidelines were rendered advisory in United States v. Booker. It was Judge Weinstein’s practice to publish a statement of reasons for each sentence he imposed, and the article relies on these statements of reason – as well as articles and speeches published by the Judge – to demonstrate how he attempted to ensure that each defendant before him received an individualized sentencing determination, and that comparable cases and sentencing factors were treated consistently. It examines how Judge Weinstein developed a specific sentencing procedure, took into account the personal history and characteristics of each defendant, and considered the need for the sentence in order to avoid unwanted sentencing disparities. It is a condensed version of an article that was originally published in the Cardozo Law Review in 2019.

Judge Weinstein's Contributions to Sentencing Law

This article examines how Judge Jack B. Weinstein, who served as a federal district judge in the Eastern District of New York for 53 years, approached the issue of consistency in sentencing after the Federal Sentencing Guidelines were rendered advisory in United States v. Booker. It was Judge Weinstein’s practice to publish a statement of reasons for each sentence he imposed, and the article relies on these statements of reason – as well as articles and speeches published by the Judge – to demonstrate how he attempted to ensure that each defendant before him received an individualized sentencing determination, and that comparable cases and sentencing factors were treated consistently. It examines how Judge Weinstein developed a specific sentencing procedure, took into account the personal history and characteristics of each defendant, and considered the need for the sentence in order to avoid unwanted sentencing disparities. It is a condensed version of an article that was originally published in the Cardozo Law Review in 2019.

Corporation blameworthiness and federal criminal fines

Purpose The purpose of this paper is to assess if federal judges have sentenced criminal corporations to fines that are consistent with the seriousness of the offense and the blameworthiness of the organization, which would be in line with the directives from the US Sentencing Guidelines. This paper will also use the focal concerns framework to measure organizational blameworthiness. Design/methodology/approach This paper uses secondary data from federal sentencing documents, collected by the US Sentencing Commission, for cases that were adjudicated between October 1, 2010 and September 30, 2017. Findings Results showed that the focal concerns framework can be used to define potential constructs for blameworthiness and that an organization’s culpability score was a significant predictor in whether the company received a higher fine. Research limitations/implications The data are unable to examine two of the three measures of focal concerns. Cross-sectional data limits the ability to draw conclusions regarding cause and effect between blameworthiness and monetary fines. Practical implications Results imply that judges are sentencing corporations that have higher culpability scores to more severe fines, in accordance with both the federal Sentencing Guidelines and focal concerns framework. Originality/value This study is one of the first to apply the focal concerns framework, usually used to examine the sentencing of individuals, to the sentencing of corporations. It is also one of the first to attempt to empirically define blameworthiness.

Assessing Proposals for Mandatory Procedural Protections for Sentencings under the Guidelines

12 Federal Sentencing Reporter 212 (2000)The federal sentencing guidelines have received sustained criticism from scholars, judges, and practitioners. Critics claim that the guidelines unwisely shift sentencing discretion from federal judges to prosecutors and probation officers; often mandate undeservedly harsh sentences; are complex, mechanistic, and bureaucratic; fail to achieve their goal of reducing sentencing disparity; and clog both district and appellate courts with litigation. Despite the attacks, some critics acknowledge that the guidelines will remain in force for the foreseeable future. While some nonetheless continue to urge abolition, others propose less ambitious reform, including enhancing the procedural protections available to criminal defendants at sentencing. Recommendations include (a) mandatory evidentiary hearings to resolve fact disputes; (b) rights to compel testimony and confront accusers; (c) application of evidentiary rules, particularly the hearsay prohibition, to the prosecution's evidence; (d) use of a standard of proof more rigorous than the "preponderance of evidence" threshold; and (e) pre-plea notice of the government's sentencing position.Critics claim that enhanced procedural protections are needed to ensure the reliability of factual findings at sentencing. Because proposed reforms typically involve providing only defendants with added protections, it appears that the reformers' objective is the reduction of improperly harsh sentences resulting from erroneous determinations of fact.In addition, some reform proponents contend that the disparity between trial, where there are significant procedural protections, and sentencing hearings, which are less formal, creates an incentive for federal prosecutors to "indict for less serious offenses which are easy to prove and then expand them in the probation office" or at the sentencing hearing itself. Presumably, an increase in procedural protections at sentencing would both reduce federal prosecutors' motivation to consciously circumvent defendants' trial rights and diminish the disparity between trial and sentencing if prosecutors nonetheless did so.After a brief description of relevant features of the guidelines, I offer several observations about these proposed measures. First, although maximizing the reliability of sentencing hearings is a legitimate objective, particularly for factual determinations that have a dramatic impact on the length of sentence, it is not self-evident that the proposed mandatory procedural protections will result in appreciably more accurate fact-finding. Second, in the absence of empirical support, the concern that federal prosecutors might circumvent trial protections is an unpersuasive rationale for restructuring the guidelines sentencing process. Third, some of the proposed reforms impose costs that may offset benefits. At several places below, I propose what may be equally effective and less costly ways to increase reliability, such as greater appellate scrutiny of lower courts' refusals to conduct evidentiary hearings. Finally, I suggest that, if mandatory procedural reforms are adopted, those who believe that they invariably will benefit defendants at sentencing may be disappointed by unintended results.