Sentencing Guidelines and focal concerns: The effect of sentencing policy as a practical constraint on sentencing decisions

2006 ◽  
Vol 30 (2) ◽  
pp. 285-304 ◽  
Author(s):  
Matthew S. Crow ◽  
William Bales
Keyword(s):  
Sentencing Guidelines ◽  
Sentencing Decisions ◽  
Focal Concerns ◽  
Practical Constraint ◽  
Sentencing Policy

The Quest for Coherence in Kenya’s Judicial Sentencing Policy: A Review of the Jurisprudence Following the Muruatetu Case

2021 ◽  
Vol 2021 (1) ◽  
pp. 142-149
Author(s):  
Phyllis Ngugi
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Death Penalty ◽  
Justice System ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Sentencing Guidelines ◽  
Trial Court ◽  
The Supreme Court ◽  
Sentencing Policy

The Supreme Court decision in the now-infamous case Francis Karioko Muruatetu v Republic1 seemed to settle the enduring debate whether sentencing is a judicial or a legislative function. The court’s ruling was that sentencing is a judicial function and that the mandatory nature of the death penalty for murder2 was unconstitutional because it took away the courts’ discretion to determine a just and proportionate punishment to impose on a convicted person. In its judgment, the court ordered that the judiciary sentencing policy3 be revised to reflect the court’s guidelines on the obligation of courts to listen to the accused’s mitigation before sentencing. The court also directed that a framework for sentence rehearing be prepared immediately to allow applicants who had been sentenced in circumstances similar to those of the petitioners to apply for sentence a rehearing from the trial court. This article examines the aftermath of this judgment in terms of whether the Supreme Court’s decision helped to cure the challenge that lies in the current sentencing process; achieving coherence and proportionality in the sentencing process. By using jurisprudential arguments, we intend to demonstrate that, despite the court’s direction to all courts to ensure that no person should be subjected to a disproportionate sentence, the problem of disproportional sentencing is one that goes beyond merely reviewing of the sentencing guidelines but also demands a reform of the entire criminal justice system.

scholarly journals Discreet Discretion and Moderate Moderation in Judicial Sentencing: A commentary on Kenya’s Sentencing Policy Guidelines, 2016

2017 ◽  
Vol 3 (1) ◽  
pp. 89-112
Author(s):  
Harrison O Mbori
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Cultural Development ◽  
Judicial System ◽  
Sentencing Guidelines ◽  
Criminal Sentencing ◽  
Administration Of Justice ◽  
Sentencing Policy

Criminal sentencing is an integral part in any judicial system for the fair administration of justice. The process of sentencing and the standards applied by judicial officers has, however, been a notoriously difficult component in many criminal law systems. In Kenya, sentencing has been blamed as one of the sources of ‘popular dissatisfaction with the administration of justice’ to borrow from Roscoe Pound. This was the impetus for the Kenyan Judiciary to introduce the Sentencing Policy Guidelines, 2016 (SPGs). This paper is a general commentary, critique, and analysis of the SPGs. The author argues that SPGs come at an instructive epoch in Kenya’s economic, socio-political, and cultural development. This contribution is not a polemic on the Kenyan SPGs. The commentary makes sideglances to various jurisdictions that have had a longer experience with sentencing guidelines. The article forecasts that Kenyan SPGs will, despite its few shortcomings, nevertheless, prove to be important for all judicial officers involved in Kenya’s criminal justice system.

Judges’ Gender and Sentencing in China: An Empirical Inquiry

2019 ◽  
Vol 15 (2) ◽  
pp. 217-250 ◽  
Author(s):  
Shuai Wei ◽  
Moulin Xiong
Keyword(s):  
Multivariate Analysis ◽  
Gender Disparity ◽  
District Court ◽  
Sentencing Guidelines ◽  
Male And Female ◽  
Empirical Inquiry ◽  
Sentencing Decisions ◽  
Iron Triangle ◽  
Two Cities ◽  
Adjudication Committee

Although mixed results regarding judges’ gender disparity in sentencing have been uncovered globally by comparatists, China has yet to be considered. Based on documents of adjudication decisions collected from two cities, we examined district court judges’ sentencing decisions. Multilevel-multivariate analysis reveals negligible differences between male and female judges. We conclude that the similarities in the decision to incarcerate can be explained by the harmonious “Iron Triangle” relationship among the police, the procuratorate, and the court. We also indicate that the Sentencing Guidelines and the Adjudication Committee are mechanisms that shape judicial behaviors in the same direction.

Child Pornography Sentencing and Demographic Data: Reforming Through Research

2011 ◽  
Vol 24 (2) ◽  
pp. 102-107
Author(s):  
SpearIt
Keyword(s):  
Child Pornography ◽  
Demographic Data ◽  
The Internet ◽  
Sentencing Guidelines ◽  
Demographic Research ◽  
Related Research ◽  
Federal Sentencing Guidelines ◽  
Sentencing Reform ◽  
History Of ◽  
Sentencing Policy

This article examines demographic research on child pornography offenders and considers its utility for sentencing reform. It begins by tracing the history of the Internet and federal possession law, detailing particularly how public and political panic about child pornography evolved within a growing fear of the Internet itself. The article continues by surveying current demographic research on possession offenders. Drawing on this data and related research, the article considers what the literature can contribute to sentencing policy, simultaneously showcasing vast differences between the type of offender Congress intended to punish and those actually receiving the harsh punishment. Taken wholly, this article explains why child pornography guidelines represent a departure from the normal process of creating Federal Sentencing Guidelines; it tells how law succumbed to the forces of fear and stacked the scale against child pornography offenders.

Sentencing Guideline Departures

2018 ◽  
Author(s):  
Kimberly Kaiser
Keyword(s):  
Federal Courts ◽  
Complex Nature ◽  
Sentencing Guidelines ◽  
Sentencing Decisions ◽  
Sentencing Guideline ◽  
Race Ethnicity ◽  
Federal Judges ◽  
To Receive ◽  
Guideline System ◽  
Sentencing Outcomes

Sentencing guidelines were created with the goal of reducing unwarranted disparities in sentencing outcomes based on race, gender, and other legally irrelevant characteristics in order to establish a uniform sentencing system. In the 21st century, approximately 21 states and the federal courts use sentencing guidelines, although the types of guidelines used vary, with some more restrictive than others. With the quest to create more uniform sentences, scholars have examined whether the guidelines have actually reduced unwarranted disparities in sentencing outcomes. One area that has received attention from sentencing scholars as an avenue for the potential reintroduction of disparity into the sentencing process is the ability to sentence offenders outside of the guideline range, a practice otherwise known as “sentencing departures.” Departures from guideline sentences are either below or above the suggested guideline range for a particular offense, with most departures resulting in below guideline sentences. Both judges and prosecutors have the authority to issue departures. Within the federal sentencing guideline system, prosecutors have the sole discretion to offer substantial assistance and other types of government-sponsored downward departures. The amount of discretion given to federal judges to depart from the guidelines has changed dramatically over the years, and the use of departures has subsequently increased in recent years. Research has examined whether this increase in departures has resulted in an increase in unwarranted disparity once again. This research has primarily focused on two related questions: (1) Have departures increased disparities in sentencing outcomes based on race, ethnicity, gender, or other factors? (2) Who is most likely to receive a departure sentence? Several studies have found there to be differences in likelihood of receiving departures; with African Americans, males, and offenders charged with specific types of crimes less likely to receive downward departures. Other research, however, has further suggested that the increased use of departures may not have increased sentencing disparities based on race or ethnicity. Additionally, a new scope of research has emerged which takes a more nuanced examination of sentencing departures; looking at variations among districts, policy disagreement departures, and other considerations. Ultimately, the current body of research on the use, consequences, and implications of sentencing departures has provided some mixed findings and many questions remain unresolved. As research on departures continues, our understanding of the complex nature of sentencing decisions under guideline based systems will continue to grow.

Sentencing Policies and Practices in Minnesota

2016 ◽  
Author(s):  
Richard S. Frase
Keyword(s):  
Case Law ◽  
Policy Formulation ◽  
Sentencing Guidelines ◽  
Sentencing Reform ◽  
Prison Overcrowding ◽  
Sentencing Policy ◽  
Truth In Sentencing ◽  
Policies And Practices

This essay evaluates the origins, purposes, operation, and evolution of Minnesota’s sentencing guidelines system, implemented in 1980. Topics examined include key guidelines provisions, related statutes, charging and sentencing practices, departure rates, interpretive case law, and correctional populations. The essay concludes that the goals of this pioneering sentencing reform have largely been achieved: punishments have become more uniform and proportionate; policy formulation is more comprehensive and informed by data; sentencing has been coordinated with available correctional resources to avoid prison overcrowding and set priorities in the use of prison beds; there is a greater degree of “truth in sentencing;” prison sentences are used relatively sparingly; and the guidelines remain fairly simple to understand and apply. Minnesota has also achieved a sustainable balance between conflicting sentencing purposes, between uniformity versus flexibility, and in the powers of the sentencing commission, the legislature, courts, and practitioners to control sentencing policy and case outcomes.

scholarly journals Nudge the judge? Theorizing the interaction between heuristics, sentencing guidelines and sentence clustering

2018 ◽  
Vol 20 (4) ◽  
pp. 399-415 ◽  
Author(s):  
Ian D. Marder ◽  
Jose Pina-Sánchez
Keyword(s):  
Decision Making ◽  
Research Evidence ◽  
Significant Proportion ◽  
Sentencing Guidelines ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Decision Sciences ◽  
Sentencing Decisions ◽  
Sentence Clustering

Although it has long been acknowledged that heuristics influence judicial decision making, researchers have yet to explore how sentencing guidelines might interact with heuristics to shape sentencing decisions. This article contributes to addressing this gap in the literature in three ways: first, by considering how heuristics might help produce the phenomenon of sentence clustering, in which a significant proportion of sentences are concentrated around a small number of outcomes; second, by reflecting on the role of sentencing guidelines as a feature of the environment within which sentencing decisions are made; and third, by analysing the guidelines from Minnesota and from England and Wales, theorizing how their content might interact with heuristics to make clustering more or less likely. Ultimately, we argue that sentencing guidelines likely affect the role played by heuristics in shaping sentencing decisions and, consequently, that their design should be informed by research evidence from the decision sciences.

Mandatory Sentencing Guidelines: The Case Of Macedonia

2016 ◽  
Vol 12 (22) ◽  
pp. 87
Author(s):  
Gordana Lazetic Buzarovska ◽  
Nikola Tupanceski ◽  
Elena Mujoska
Keyword(s):  
Criminal Code ◽  
Sentencing Guidelines ◽  
Criminal Offence ◽  
Council Of Europe ◽  
External Pressures ◽  
Sentencing Policy ◽  
The Republic ◽  
Administrative Proceedings ◽  
Mandatory Sentencing

This study expresses the criticism of recently enacted Law in determining the type and in measuring the severity of sentence. There is flagrant restriction of the free judicial belief due to the necessity in overcoming identified inconsistency in sentencing policy. The judicial system is not resistant to both internal and external pressures and influences. However, those problems cannot be overcome by massive fragmentation of the Criminal Code of the Republic of Macedonia, wide ranges of the sanctions, and by administrative proceedings in the determination of the sanction. New Macedonian law has created mandatory guidelines for every criminal offence by emphasizing previous conviction as the most important circumstances. This is contrary to several Council of Europe recommendations. The authors emphasize that the binding character of the sentencing guidelines should be avoided. According to them, only free judicial belief within the statutory penal framework can ensure the rule of the law and equity.

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