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Journal articles on the topic 'Sentencing'

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Author: Grafiati

Published: 4 June 2021

Last updated: 29 July 2024

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1

Jacobs, Brian A. "A Good Sentencing Precedent is Hard to Find." Federal Sentencing Reporter 32, no. 3 (February 1, 2020): 138–44. http://dx.doi.org/10.1525/fsr.2020.32.3.138.

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In federal criminal cases, federal law requires that judges consider the sentences other courts have imposed in factually similar matters. Courts and parties, however, face significant challenges in finding applicable sentencing precedents because judges do not typically issue written sentencing opinions, and transcripts of sentencings are not readily available in advanced searchable databases. At the same time, particularly since the Supreme Court’s 2005 decision in United States v. Booker, sentencing precedent has come to play a significant role in federal sentencing proceedings. By way of example, this article discusses recent cases involving defendants with gambling addictions, and recent cases involving college admissions or testing fraud. The article explores the ways the parties in those cases have used sentencing precedent in their advocacy, as well as the ways the courts involved have used sentencing precedent to justify their decisions. Given the important role of sentencing precedent in federal criminal cases, the article finally looks at ways in which the body of sentencing law could be made more readily available to parties and courts alike.

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2

Shames, Alison. "Sentencing Within Sentencing." Federal Sentencing Reporter 24, no. 1 (October 1, 2011): 1–3. http://dx.doi.org/10.1525/fsr.2011.24.1.1.

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Guest editor Alison Shames introduces this issue of Federal Sentencing Reporter, which focuses on sentencing and the last fifty years of programs developed by the Vera Institute of Justice. When a judge sentences a convicted defendant, he or she takes into account many factors and tries to achieve one or more of the oft-cited purposes of punishment: incapacitation (to protect the public from further crimes committed by the defendant), deterrence, restitution, retribution, and rehabilitation. The federal sentencing statute instructs the court not to impose a sentence greater than necessary to accomplish the goals the sentence is crafted to achieve. What the statutes, guidelines, case law, or even the defense attorney don't mention, however, is that a criminal sentence imposed after a conviction does not fully define the punishment meted out to a defendant. People involved in the criminal justice system are, in fact, punished at multiple points.

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3

Griset, Pamala L. "Criminal Sentencing in Florida: Determinate Sentencing's Hollow Shell." Crime & Delinquency 45, no. 3 (July 1999): 316–33. http://dx.doi.org/10.1177/0011128799045003002.

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This study examines the destabilization of determinate sentencing in Florida. In retaining the form but rejecting the substance of the determinate sentencing model, Florida's punishment policy is today an unwieldy mix of the worst features of the indeterminate and the determinate ideologies. The discussion places recent policy changes, including the authorization of extraordinarily wide sentencing ranges and the abolition of appellate review, in the context of Florida's two-decade odyssey with determinate sentencing. The article is based on interviews with policymakers and practitioners, along with a variety of official and unofficial documents. The potential ramifications of other states following Florida's lead are enormous and deserve scrutiny.

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4

Martínez Garay, Lucía. "PELIGROSIDAD, ALGORITMOS Y DUE PROCESS: EL CASO STATE vs. LOOMIS." Revista de Derecho Penal y Criminología, no. 20 (January 23, 2020): 485. http://dx.doi.org/10.5944/rdpc.20.2018.26484.

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El movimiento contemporáneo tendente a la sustitución de la noción de peligrosidad por el enfoque de la valoración del riesgo (risk assessment), que se inició en el ámbito del derecho penitenciario y de ejecución de las penas, está llegando a otras fases del proceso penal, como la de sentencia. Presentándose como una práctica «basada en la evidencia» (evidence-based sentencing), propugna tomar en consideración las valoraciones estructuradas del riesgo de reincidencia a la hora de determinar la clase y cuantía de la pena a imponer, para adecuarla mejor a las necesidades de prevención especial. El presente trabajo analiza críticamente una de las primeras sentencias de un tribunal supremo estatal de los EEUU que se ha enfrentado a los problemas que plantea esta propuesta, y en particular al siguiente: ¿es compatible con el derecho al debido proceso agravar la pena sobre la base de la valoración de riesgo hecha por un algoritmo, cuyo funcionamiento no se desvela al acusado porque está protegido como secreto de empresa?The contemporary tendency towards replacing the old notion of dangerousness by the risk assessment approach, that began in the correctional settings, is reaching other stages of the criminal justice, particularly the sentencing phase. Presenting itself as an evidence-based practice (evidence-based sentencing), it promotes introducing structured risk assessments in sentencing in order to help the judge impose the penalty that best prevents recidivism. This paper critically examines one of the first State Supreme Court decisions in the USA that has had to face the problems posed by this approach, and especially the following: is it compatible with due process rights to impose an enhanced sentence based on the risk assessment made by a secret algorithm, the details of which are not disclosed to the defendant due to its proprietary nature?

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5

WELLFORD, CHARLES F. "SENTENCING RESEARCH FOR SENTENCING REFORM." Criminology & Public Policy 6, no. 3 (August 2007): 399–402. http://dx.doi.org/10.1111/j.1745-9133.2007.00444.x.

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6

Le Roux-Kemp, Andra. "Sentencing." Yearbook of South African Law 1 (2020): 1014–56. http://dx.doi.org/10.47348/ysal/v1/i1a21.

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7

Le Roux-Kemp, Andra. "Sentencing." Yearbook of South African Law 1 (2020): 1014–56. http://dx.doi.org/10.47348/ysal/v1/i1a21.

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8

Wettstein, Robert M. "Sentencing." Behavioral Sciences & the Law 7, no. 1 (1989): 1. http://dx.doi.org/10.1002/bsl.2370070102.

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9

King, Ryan S., and Marc Mauer. "The Sentencing Project, Sentencing with Discretion." Federal Sentencing Reporter 18, no. 2 (December 1, 2005): 134–45. http://dx.doi.org/10.1525/fsr.2005.18.2.134.

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10

Reitz, Kevin R. "Sentencing Facts: Travesties of Real-Offense Sentencing." Stanford Law Review 45, no. 3 (February 1993): 523. http://dx.doi.org/10.2307/1229007.

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11

김한균. "Sentencing Guidelines and Departure from Sentencing Criteria." Korean Journal Of Criminology 26, no. 3 (December 2014): 163–88. http://dx.doi.org/10.36999/kjc.2014.26.3.163.

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12

Henham, Ralph. "Sentencing Policy, Appellate Guidance and Protective Sentencing." Journal of Criminal Law 60, no. 4 (November 1996): 424–46. http://dx.doi.org/10.1177/002201839606000406.

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13

Park, Hyungkwan. "The Role and Continual Responsibilities of the Korean Sentencing Commission Towards Successful Sentencing Reform." Korean Association of Criminal Procedure Law 14, no. 3 (September 30, 2022): 135–73. http://dx.doi.org/10.34222/kdps.2022.14.3.135.

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Fifteen years after the sentencing guidelines system was first introduced in Korea, sentencing guidelines have been set for most major crimes and the compliance rate has proven to be high. The Korean Sentencing Commission adopted the gradual approach in designing the guidelines and has worked to enhance the objectivity of the sentencing guidelines by way of quality evaluation of the sentencing factors. It appears that at present the sentencing guidelines system has been firmly implemented into the justice system. However, for sentencing reform to be successful, the Sentencing Commission must be faithful to meet its perennial responsibilities. These responsibilities include but are not limited to consistently designing and revising the guidelines, more evidence-based monitoring of compliance to and the effects of the guidelines, making public and educating others about the sentencing guidelines, providing access to the disclosure of sentencing information, and establishing sound sentencing policies with an emphasis on very important issues such as pertaining to corrections. To that end, the Commission should operate an empirical data based sentencing guidelines system by way of collection and analysis of high quality sentencing data. Abundant and sound data will provide for a better sentencing data base and a sentencing information system which will in turn be pivotal in achieving a higher level of research and education. These tasks will perforce require cooperation between various criminal justice organizations. Unfortunately, the Korean Sentencing Commission’s on-going operations have not reached an optimal level in collecting qualified sentencing data to ensure the implementation and adherence to the guidelines nor effectively researching sentencing policies. Contrary to the original intent of the establishment legislation, the Sentencing Commission has operated as a mere branch under the jurisdiction of the Korean Supreme Court and has focused most of its attention to the promulgation of various individual guidelines. The Sentencing Commission must be treated as an independent and specialized entity to ensure successful implementation of its continual responsibilities. The goal of sentencing reform can only be attained by the ongoing efforts of the Commission and its willingness to work towards this common end.

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14

Roberts, Julian V., and Oren Gazal-Ayal. "Statutory Sentencing Reform in Israel: Exploring the Sentencing Law of 2012." Israel Law Review 46, no. 3 (September 23, 2013): 455–79. http://dx.doi.org/10.1017/s0021223713000162.

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In 2012 the Knesset approved a new sentencing law. Israel thus became the latest jurisdiction to introduce statutory directions for courts to follow in sentencing. The approach of the United States to structuring judicial discretion often entails the use of a sentencing grid with presumptive sentencing ranges. In contrast, the Sentencing Act of Israel reflects a less prescriptive method: it provides guidance by words rather than numbers. Retributivism is clearly identified as the penal philosophy underpinning the new law, which takes a novel approach to promoting more proportionate sentencing. Courts are directed to construct an individualised proportionate sentencing range appropriate to the case in hand. Once this is established, the court then follows additional directions regarding factors and principles related to sentencing. Although other jurisdictions have placed the purposes and principles of sentencing on a statutory footing, this is the first such legislative declaration in Israel. The statute also contains a methodology to implement a proportional approach to sentencing as well as detailed guidance on sentencing factors. This article describes and explores the new Sentencing Act, making limited comparisons to sentencing reforms in other jurisdictions – principally England and Wales, New Zealand and the United States. In concluding, we speculate on the likely consequences of the law: will it achieve the goals of promoting more consistent and principled sentencing?

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15

Mohr, J. W. "Sentencing revisited." Canadian Journal of Criminology 32, no. 3 (July 1990): 531–35. http://dx.doi.org/10.3138/cjcrim.32.3.531.

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16

Lynch, Gerard E. "Sentencing Eddie." Journal of Criminal Law and Criminology (1973-) 91, no. 3 (2001): 547. http://dx.doi.org/10.2307/1144298.

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17

Lappi-Seppälä, Tapio. "Nordic Sentencing." Crime and Justice 45, no. 1 (August 2016): 17–82. http://dx.doi.org/10.1086/686040.

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18

Millie, Andrew, Jacqueline Tombs, and Mike Hough. "Borderline sentencing." Criminology & Criminal Justice 7, no. 3 (August 2007): 243–67. http://dx.doi.org/10.1177/1748895807078866.

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19

Beetham, Andrew. "Murder: Sentencing." Journal of Criminal Law 70, no. 4 (August 2006): 297–300. http://dx.doi.org/10.1350/jcla.70.4.297.

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20

Williams, Jane M. "Sentencing Guidelines -." Legal Reference Services Quarterly 9, no. 3-4 (January 3, 1991): 115–24. http://dx.doi.org/10.1300/j113v09n03_07.

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21

Hamilton, Melissa. "Sentencing Disparities." British Journal of American Legal Studies 6, no. 2 (December 29, 2017): 177–224. http://dx.doi.org/10.1515/bjals-2017-0010.

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Abstract Criminal justice stakeholders are strongly concerned with disparities in penalty outcomes. Disparities are problematic when they represent unfounded differences in sentences, an abuse of discretion, and/or potential discrimination based on sociodemographic characteristics. The Article presents an original empirical study that explores disparities in sentences at two levels: the individual case level and the regional level. More specifically, the study investigates upward departures in the United States’ federal sentencing system, which constitutes a guidelines-based structure. Upward departures carry unique consequences to individuals and their effects on the system as they lead to lengthier sentences, symbolically represent a dispute with the guidelines advice, and contribute to mass incarceration. Upward departures are discretionary to district courts and thus may lead to disparities in sentencing in which otherwise seemingly like offenders receive dissimilar sentences, in part because of the tendency of their assigned judges to depart upward (or not). The study utilizes a multilevel mixed model to test the effects of a host of explanatory factors on the issuance of upward departures at the case level and whether those same factors are significant at the group level-i.e., district courts-to determine the extent of variation across districts. The explanatory variables tested include legal factors (e.g., final offense level, criminal history, offense type), extralegal characteristics (e.g., gender, race/ethnicity, citizenship), and case-processing variables (e.g., trial penalty, custody status). The results indicate that various legal and nonlegal factors are relevant in individual cases (representing individual differences) and signify that significant variations across district courts exist (confirming regional disparities). Implications of the significant findings for the justice system are explored.

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22

Heumann, Milton. "Criminal Sentencing." Law & Social Inquiry 15, no. 01 (1990): 121–33. http://dx.doi.org/10.1111/j.1747-4469.1990.tb00276.x.

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23

Otis, William. "Sentencing Reform." Federal Sentencing Reporter 28, no. 3 (February 1, 2016): 219–20. http://dx.doi.org/10.1525/fsr.2016.28.3.219.

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24

McCullough, Keith P. "Sentencing matters." Journal of Criminal Justice 24, no. 6 (January 1996): 570–71. http://dx.doi.org/10.1016/s0047-2352(97)81182-8.

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25

Resnik, Judith. "Sentencing Women." Federal Sentencing Reporter 8, no. 3 (November 1, 1995): 134–36. http://dx.doi.org/10.2307/20639875.

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26

Glendinning, Simon. "Sentencing Derrida." Modern Law Review 74, no. 2 (March 2011): 306–21. http://dx.doi.org/10.1111/j.1468-2230.2011.00848.x.

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27

SUMNER, MAGGIE, GRAHAM JARVIS, and HOWARD PARKER. "SENTENCING TRENDS." British Journal of Criminology 26, no. 1 (January 1986): 87–93. http://dx.doi.org/10.1093/oxfordjournals.bjc.a047585.

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28

Tonry, Michael. "Structuring Sentencing." Crime and Justice 10 (January 1988): 267–337. http://dx.doi.org/10.1086/449148.

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29

Kirk, David. "Fraud Sentencing." Journal of Criminal Law 79, no. 5 (October 2015): 301–3. http://dx.doi.org/10.1177/0022018315603609.

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30

Karetnick, Jen. "American Sentencing." Chest 149, no. 3 (March 2016): 885. http://dx.doi.org/10.1016/j.chest.2015.08.002.

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31

Bowman, Frank O. "A Simplified Sentencing Grid: Model Sentencing Guidelines §1.1." Federal Sentencing Reporter 18, no. 5 (June 1, 2006): 320–22. http://dx.doi.org/10.1525/fsr.2006.18.5.320.

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32

Perren, Steven Z. "Indeterminate Sentencing Redux: A Return to Rational Sentencing." Federal Sentencing Reporter 22, no. 3 (February 1, 2010): 165–70. http://dx.doi.org/10.1525/fsr.2010.22.3.165.

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33

Hutton, Neil, and Cyrus Tata. "A Sentencing Exception? Changing Sentencing Policy in Scotland." Federal Sentencing Reporter 22, no. 4 (April 1, 2010): 272–78. http://dx.doi.org/10.1525/fsr.2010.22.4.272.

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34

Hartley, Richard D., Sean Maddan, and Jeffery T. Walker. "Sentencing practices under the Arkansas sentencing guideline structure." Journal of Criminal Justice 34, no. 5 (September 2006): 493–506. http://dx.doi.org/10.1016/j.jcrimjus.2006.09.004.

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35

Killias, Martin. "Sentencing reform — from rhetorics to reducing sentencing disparity." European Journal on Criminal Policy and Research 2, no. 1 (March 1994): 19–28. http://dx.doi.org/10.1007/bf02249247.

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36

Exum, Jelani Jefferson. "What's Happening with Child Pornography Sentencing?" Federal Sentencing Reporter 24, no. 2 (December 1, 2011): 85–86. http://dx.doi.org/10.1525/fsr.2011.24.2.85.

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Guest editor Jelani Jefferson Exum introduces this issue of Federal Sentencing Reporter, which focuses on federal child pornography sentencing. Acknowledging the timeliness of discussing the current state of and future possibilities for child pornography sentencing, the editors of Federal Sentencing Reporter recruited submissions from those working on and thinking about this particular sentencing topic. This issue of FSR contains commentary that engages in many different angles of the child pornography sentencing debate—from the demographic of offenders, to the judicial approach to sentencing, to specifics about the Guidelines, and even to post-release issues—and covers the many problematic aspects of child pornography sentencing. Readers not only will be informed about the particularities of the sentencing process for these offenses but also will be invited to ponder (and perhaps question) the possible consequences and effects of the current posture of sentencing federal child pornography offenses.

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37

Effron, Judge Andrew S., and Jonathan J. Wroblewski. "Congress Reforms Military Sentencing, Creating an Opportunity for a Productive Sentencing Reform Dialogue Between the Military and Civilian Criminal Justice Systems." Federal Sentencing Reporter 35, no. 1 (October 1, 2022): 73–85. http://dx.doi.org/10.1525/fsr.2022.35.1.73.

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In recently-enacted legislation, Congress drew upon the 35-year experience with sentencing reform in the federal civilian criminal courts to reform significant aspects of the sentencing process in the military justice system. The article reviews the sentencing reform provisions contained in the National Defense Authorization Act for FY2022 and the Military Justice Act of 2016, which address many of the core elements of sentencing, including: (1) the principles governing sentencing in courts-martial; (2) the use of sentencing “parameters” and “criteria” in the adjudication of sentences by general and special courts-martial; (3) the role of the military judge in the adjudication of sentences; (4) consideration of plea agreements at the trial level; (5) appellate review of sentences; (6) clemency and related actions on the sentence, and more. After summarizing the history of military and civilian sentencing, the article reviews the newly-enacted military justice sentencing provisions, comparing them to the relevant provisions in the federal civilian sentencing system that were enacted as part of the Sentencing Reform Act of 1984 and subsequent legislation, and implemented by the U.S. Sentencing Commission. Although some of these newly-enacted reforms mirror similar elements of the federal civilian sentencing system, others follow a different approach, reflecting a decision by Congress to adapt rather than simply adopt current civilian practices. As Congress, the Administration, and a new Sentencing Commission focus on criminal justice reform, including possible changes to civilian sentencing law and policy, the recent reforms in military justice sentencing provide an important source of insights worthy of consideration.

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38

Herz, Clara. "Striving for Consistency: Why German Sentencing Needs Reform." German Law Journal 21, no. 8 (December 2020): 1625–48. http://dx.doi.org/10.1017/glj.2020.90.

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AbstractGiven the debate at the seventy-second Conference of the Association of German Jurists (Deutscher Juristentag) in September 2018 on whether German sentencing needs reform, this Article will explore this very question in greater detail. In this regard, this Article will present various empirical studies in order to demonstrate that notable inconsistencies in German sentencing practice exist. This Article will then point out that broad statutory sentencing ranges, along with fairly vague sentencing guidance, are among the main causes of these disparities. Subsequently, this Article will examine several mechanisms that selected foreign jurisdictions—namely the U.S., the U.K., and Australia—have put in place in order to enhance consistency in their sentencing practices. Three mechanisms of sentencing guidance will be distinguished here: First, formal sentencing guidelines; second, guideline judgments; and third, sentencing advisory bodies as they operate in some Australian states. This Article will compare these mechanisms and assess their merits and drawbacks. Based on this comparative study, this Article will look at how to improve consistency in German sentencing practice. In this respect, this Article will present three steps that German criminal law reform should follow, including a better sentencing framework, the strategic gathering of sentencing data, and the implementation of a flexible sentencing guidelines regime.

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39

KENNEDY, EDWARD M. "Prison Overcrowding: The Law's Dilemma." ANNALS of the American Academy of Political and Social Science 478, no. 1 (March 1985): 113–22. http://dx.doi.org/10.1177/0002716285478001010.

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The author focuses on the importance of criminal sentencing policy to prison overcrowding and advocates comprehensive sentencing reform that emphasizes selective incapacitation of dangerous offenders as a sensible approach to conserving scarce prison resources. The author is the chief sponsor of the Sentencing Reform Act of 1984, which was recently enacted as part of the Comprehensive Crime Control Act of 1984. The Sentencing Reform Act, which embodies the most comprehensive reform of criminal sentencing ever undertaken by Congress, establishes an independent United States Sentencing Commission to establish a uniform sentencing policy and mandatory sentencing guidelines to be used by federal judges. The act abolishes early release on parole, cautions the Sentencing Commission to develop guidelines that minimize prison overcrowding, and emphasizes use of incarceration for dangerous, violent repeat offenders. The use of uniform sentences and selective incapacitation provided for in the new law offers a constructive approach to the intractable problem of prison overcrowding.

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40

Nemitz, Jan Christoph. "The Law of Sentencing in International Criminal Law: The Purposes of Sentencing and the Applicable Method for the Determination of the Sentence." Yearbook of International Humanitarian Law 4 (December 2001): 87–127. http://dx.doi.org/10.1017/s1389135900000830.

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‘Sentencing is an art and not a science’. This statement of Lord Lane expresses, with all due respect, what sentencing should not be. Although it cannot be denied that the process of determining a sentence is far from being a mathematical exercise, the result of which can be verified or falsified by reference to some unquestionable law of nature, both the legislator and the judiciary must strive for the development of a law of sentencing which is based on a comprehensive set of statutory provisions. The very term ‘lawof sentencing’ indicates that the meting out of a sentence is more than the exercise of a skill that only judges are vested with. The use of the term ‘art’, conversely, to describe sentencing gives the impression that the act of sentencing is beyond objective understanding and control. When we speak of art, we acknowledge that while views on the outcome can be manifold, objective criteria for a ‘correct’ assessment are few: there's no accounting for taste. This is unacceptable when looking at the significance of the law of sentencing for the pursuit of various sentencing purposes. To base the determination of the sentence on legal grounds enhances the review possibilities with regard to sentencing judgments. This contributes to an even sentencing practice, which in turn leads to just and comprehensible sentencing judgments. Such a practice is necessary in order to achieve public acceptance of the criminal justice system in general and of sentencing verdicts in particular. Such acceptance is imperative for the achievement of several sentencing purposes, especially that of affirmative (or positive) general prevention.

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41

Roberts, Julian V., and Andrew von Hirsch. "Sentencing Reform in Canada: Recent Developments." Revue générale de droit 23, no. 3 (March 12, 2019): 319–55. http://dx.doi.org/10.7202/1057114ar.

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Changes to the sentencing process in Canada are finally imminent. A number of reports in recent years have called for reforms in the area of sentencing and parole. In 1987, the Canadian Sentencing Commission released its final report Sentencing Reform: A Canadian Approach. This was followed in 1988 by the report of the Daubney Committee following its investigation into sentencing and parole. In addition to these proposals, the now-defunct Law Reform Commission of Canada, the Department of Justice and the Ministry of the Solicitor General all published reports containing reform proposals. In this article, the authors review recent events in the area of sentencing since the publication of the report of the Canadian Sentencing Commission. After a brief introduction, four principal policy issues are examined: (i) statutory statements of sentencing purpose; (ii) sentencing guidelines; (iii) the future of release on parole; (iv) the creation of a permanent sentencing commission for Canada. For each issue, the article critically examines the position taken by major players in the area of criminal law reform. The article concludes with a brief examination of Bill C-90, which recently received first reading, and which will be the object of further parliamentary scrutiny in the fall of 1992. In a subsequent article, the authors offer their own proposals to reform the sentencing of offenders in Canada.

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42

Surendranath, Anup, Neetika Vishwanath, and Preeti Pratishruti Dash. "Penological Justifications as Sentencing Factors in Death Penalty Sentencing." Journal of National Law University Delhi 6, no. 2 (December 2019): 107–25. http://dx.doi.org/10.1177/2277401720972852.

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When the Supreme Court of India upheld the constitutionality of the death penalty in Bachan Singh v. State of Punjab in 1980, it also laid down a sentencing framework for subsequent sentencing courts, guiding them in deciding between life imprisonment and the death penalty. This framework, popularly known as the ‘rarest of rare’ framework, was focused on individualised punishment. However, subsequent judgments have strayed away from Bachan Singh’s core framework, and the use of penological justifications as sentencing factors has contributed significantly to this deviation. This article argues that it is not within the mandate of sentencing judges to invoke penological theories as separate sentencing factors in individual cases when deciding between life imprisonment and the death sentence. The article begins by distinguishing between the penological justifications used to retain the death penalty in Bachan Singh and those underlying the sentencing framework developed in the judgment. It then examines subsequent judgments to trace the manner in which the capital sentencing framework was shaped to be crime-centric through the use of penological ideas like ‘collective conscience’ and deterrence. Examining the implications of penological justifications occupying a dominant place in death penalty sentencing, the article examines the broader concerns about the lack of clarity with sentencing goals. The failure in individual cases to distinguish between penological justifications as sentencing factors determining punishment, on the one hand, and viewing them as consequences arising out of an individualised sentencing process, on the other, lies at the core of the critique in this article.

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43

Kim, Hye Kyung. "Improvement of sentencing Guidelines." Wonkwang University Legal Research Institute 38, no. 2 (June 30, 2022): 3–30. http://dx.doi.org/10.22397/wlri.2022.38.2.3.

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Since the establishment and application of the sentencing guidelines for murder crimes began in 2009, a total of 44 sentencing standards for crime types have been established or revised by the 8th Sentencing Committee over the past 13 years. And more than 90% of cases that are already subject to trial have sentencing standards. Now, it is necessary to explore the direction of the sentencing committee in the future and pursue righteous punishment and fair sentencing. Here is aimed to review some issues that need to be improved regarding the 'reasonable sentencing guideline' necessary to form a fair future of justice. First of all, based on the contents of the analysis of the application status of the sentencing guidelines, it is intended to analyze how the sentencing factors are actually affecting the application of the sentencing guidelines. Next will discuss whether the sentencing criteria should bind the court's judgment. This is because if the sentencing guideline does not bind the court, and it becomes a judicial practice to deviate from the sentencing guideline, it may not be necessary to establish the sentencing guidelines. In addition, the meaning of judges complying with the sentencing guidelines can be a criterion for evaluating the public's trust in judicial law. In addition, it is necessary to verify the validity of the grounds for considering probation. Until now, among the special sentencing factors, the mitigation factor has been recognized as a positive factor for probation, and the aggravated factor has been cross-applied as a negative factor. However, it is necessary to determine whether such cross-application is reasonable. This is also a matter of connection between the two. In addition, the possibility of establishing the selection criteria for imprisonment and fines should be studied. The criminal law selectively stipulates imprisonment and fines for most crimes. Therefore, it will be necessary to objectively ensure the predictability of what punishment criminals will be imposed. Finally, we will look at the problem of harmony with the day fines system. This is because it is difficult to harmonize with the day fines system that converts the amount of illegality into days if the upper and lower limits of fines are set while creating the penalty standard for fines. Through these studies, it is necessary to establish righteous punishment and fair sentencing, and to ensure the people's judicial trust through those.

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44

Kim, Han-Kyun. "Criminal Responsibility and Prevention of Crime as the Rationale of Sentencing." Korean Association of Criminal Procedure Law 15, no. 4 (December 31, 2023): 131–54. http://dx.doi.org/10.34222/kdps.2023.15.3.131.

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This essay aims to review the rationale of sentencing in Korean criminal laws and procedures to understand how to secure rational sentencing with the rationales of sentencing, such as responsibility of offenders and general deterrence or specific deterrence. Shuldprinzip or principle of responsibility is the fundamental basis of criminal punishment, which also acknowledged as constitutional principle for criminal laws. However, Korean Penal Code has no definite provisions on the purpose(s) of punishment or sentencing. Considering such statutory definition of the rationale is necessary for rationalizing sentencing discretion, Article 51 of the Penal Code is the only relevant provision on some ‘general principles’ of sentencing : In determining punishment, the following shall be taken into consideration: 1. The age, character and conduct, intelligence and environment of the offender; 2. Offender's relation to the victim; 3. The motive for the commission of the crime, the means and the result; 4. Circumstances after the commission of the crime. Also, Korean sentencing guideline system under the Court Organization Act has set some principles of setting or changing the sentencing criteria: 1. The nature of crimes, the circumstances of crimes, and the extent of the responsibilities of defendants shall be reflected; 2. The general deterrence, the prevention of defendants from committing crimes again and their return to society shall be taken consideration; 3. As long as there is no difference between the same kind of crimes and the similar kind of crimes in the sentencing elements that have to be taken into account, they shall not be differently handled in the sentencing of them; 4. The sentencing shall not be discriminated against defendants on the grounds of their nationalities, religions, conscience, social statuses, etc. (Article 81-6(2)) Now the sentencing guideline system is taking the role of rationalizing sentencing discretion by both reflecting responsibilities of defendants and considering the general deterrence of crimes or the prevention of defendants from re-offending and their rehabilitation, and further realizing the purposed of just punishment. According to the law, when setting and changing the sentencing guidelines, the guidelines should reflect the degree of responsibility of the defendant, and consider the general prevention of crime and the prevention of recidivism and social rehabilitation of the defendant. So for the rationalization of sentencing, it should be possible to make sentencing-policy judgments on responsibility and prevention considerations through the principles of responsibility and prevention considerations rather than unclear normative adjustments of sentencing guidelines.

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Coleman, Lex A. "Crack 2.0." Federal Sentencing Reporter 34, no. 1 (October 1, 2021): 29–43. http://dx.doi.org/10.1525/fsr.2021.34.1.29.

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The 1984 Sentencing Reform Act charged the U.S. Sentencing Commission with developing sentencing guidelines that advanced the purposes of sentencing under 18 U.S.C. § 3553(a). After the Supreme Court cases Booker, Kimbrough, Gall, and Spears, it is now well established—at least with federal drug trafficking offenses—that the Commission did not fulfill that directive. The magnitude of that failure (coupled with some of Congress’s own misguided decisions) has previously been highlighted by the evolution of federal crack sentencing policies, the Fair Sentencing Act, the related line of Supreme Court cases, and more recently the First Step Act. Congress’s compromise correction of over twenty years (essentially a generation) of a failed war on crack did nothing to further correct similar defects with federal drug sentencing policies for other controlled substances—particularly with respect to methamphetamine. Given the resurgence of methamphetamine trafficking, use, and prosecutions, this paper will analyze post-1988 federal methamphetamine sentencing policy to illustrate how the drug-type, quantity, and purity model for punishing drug trafficking offenses still produces unwarranted sentencing disparities between similar controlled substances or different forms of the same controlled substances—and in the end plainly fails to effectively deter the targeted criminal conduct or advance the purposes of federal sentencing under 18 U.S.C. § 3553(a).

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Berman, Douglas A. "Sentencing is Dang Hard … and So …" Federal Sentencing Reporter 32, no. 3 (February 1, 2020): 181–83. http://dx.doi.org/10.1525/fsr.2020.32.3.181.

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This essay, adapted from a speech upon receipt of the 2018 Richard P. Kern Memorial Award from the National Association of Sentencing Commissions, details why sentencing is “dang hard” and explores implications of that reality. The essay argues that the challenges of sentencing not only demand that all jurisdictions have a sentencing commission as an essential permanent agency, but also call for these commissions always to think big and to strive to work deep and wide to study all facets of modern criminal justice systems. The essay also contends that sentencing errors may be quite common and that, even if we manage to get sentencing “right” at the outset, changes in society and in individuals can make even “right” sentences wrong over time. Sensible humility about the likelihood of sentencing errors further suggests, for example: at the rule-making stage, having sentencing laws include sunset provisions and having sentencing commissions review and audit major guidelines and related sentencing practices on a regular basis; at the case-specific stage, having far more robust substantive appellate review of sentences, having more robust mechanisms for parole and judicial reconsideration and clemency, and even developing more creative means to apply and revise different forms of punishment as time passes and new information is gathered.

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Dai, Xin. "Legal constraints and judicial discretion in sentencing practice: Appraisal analysis of the sentencing remarks for Terri Palmer." Text & Talk 40, no. 3 (May 27, 2020): 269–92. http://dx.doi.org/10.1515/text-2020-2061.

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AbstractIn the sentencing of murder cases in England and Wales, it is required by law that judges must take into consideration the factors listed in sentencing laws and guidelines (henceforth statutory factors). However, judges also have the discretion to include factors that are not listed in such laws or guidelines (henceforth non-statutory factors). This paper explores judges’ positioning towards legal constraints and judicial discretion in sentencing by applying the Appraisal framework to analyse statutory and non-statutory factors in the sentencing remarks for a randomly selected murder case. The major analytical findings are that, with regard to statutory factors, attitudes are implicit and are mainly presented through heteroglossia, while, with regard to non-statutory factors, attitudes are explicit and are mainly presented through monoglossia. These different appraisal features of statutory and non-statutory factors reflect the constraints of sentencing laws and guidelines on the judge’s sentencing practice, and the judge’s full play of judicial discretion in the sentencing of this case. It is expected that findings of this study could add to current understanding of sentencing practice, while its analytical procedure could facilitate appraisal analysis of more sentencing remarks, which would, in turn, complement socio-legal studies on sentencing practice.

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이보영. "Legal Characteristics of Sentencing and Reasonable Methods for Sentencing." Journal of Criminal Law 21, no. 4 (December 2009): 219–50. http://dx.doi.org/10.21795/kcla.2009.21.4.219.

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이현정 and Woong Yim. "Critical review on the Sentencing Guidelines of Sentencing Committee." SungKyunKwan Law Review 21, no. 1 (April 2009): 359–88. http://dx.doi.org/10.17008/skklr.2009.21.1.016.

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Chen, Xiaoming. "SENTENCING REFORMS IN CHINA: TOWARDS THE STANDARDISATION OF SENTENCING." Zeszyty Prawnicze 13, no. 1 (December 14, 2016): 197. http://dx.doi.org/10.21697/zp.2013.13.1.09.

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