A Commentary on Judicial Discretion, Mandatory Minimums, and Sentencing Reform

2016 ◽  
Vol 28 (3) ◽  
pp. 209-210
Author(s):  
Jelani Jefferson Exum
Keyword(s):  
Judicial Discretion ◽  
Sentencing Reform ◽  
Mandatory Minimums

Sentencing Reform in Israel: The Goldberg Committee Report

1998 ◽  
Vol 32 (4) ◽  
pp. 591-643 ◽  
Author(s):  
Daniel Ohana
Keyword(s):  
State Level ◽  
The United States ◽  
Criminal History ◽  
Public Confidence ◽  
Committee Report ◽  
Judicial Discretion ◽  
Sentencing Reform ◽  
Final Sentence ◽  
The Subject ◽  
Mitigating Circumstances

Sentencing reform has been the subject of much debate over the past two decades in North America, Europe and Australia. Among the concerns spurring this widespread reconsideration of sentencing principles and practices, there is the need to promote consistency in sentencing, the crisis in public confidence in the criminal justice system, and the constitutional argument for more legislative intervention in the area of sentencing. The reforms implemented in various jurisdictions to address these concerns have taken numerous forms: at the federal level in the United States, “base sentences” were assigned to each offense category, the final sentence being fixed in the light of the offender's prior criminal history and aggravating and mitigating circumstances; at the state level, several jurisdictions adopted a less detailed system of numerical guidelines, schematized by a two-dimensional grid of sentence ranges defined by classes of offenses and the offender's criminal record. Other jurisdictions, such as Canada, Britain and Sweden, eschewed the use of numerical guidelines as a vehicle to structure judicial discretion in favour of simpler statutory statements of principles in sentencing.

The Challenge of Imposing Just Sentences Under Mandatory Minimum Statutes: A Qualitative Study of Judicial Perceptions

2021 ◽  
pp. 088740342110305
Author(s):  
Esther Nir ◽  
Siyu Liu
Keyword(s):  
United States ◽  
Qualitative Study ◽  
Qualitative Interviews ◽  
Moral Dilemmas ◽  
The United States ◽  
Public Perceptions ◽  
Judicial Discretion ◽  
Mandatory Minimums ◽  
Alternatives To Incarceration ◽  
Appropriate Sentences

Mandatory minimums limit judicial discretion in many jurisdictions in the United States, often compelling judges to impose harsh incarcerative terms. Using qualitative interviews with 41 criminal term judges presiding in a state in the United States, we explore how mandatory minimums influence the judicial sentencing function. We find that judges vary in their approaches to sentencing and that their approaches correspond with their perceptions of mandatory minimum statutes. While our respondents consider case-level, systemic, and pragmatic factors, the majority of judges are focused on the case level and perceive that mandatory minimums often strip away the flexibility they need to craft appropriate sentences in individual cases, leading to punishments that are unduly harsh, and sometimes preventing the imposition of promising alternatives to incarceration. Some judges experience moral dilemmas and guilt feelings during this process. In contrast, judges who highlight pragmatic factors (e.g., public perceptions) are more receptive to statutory restrictions.

Statutory Sentencing Reform in Israel: Exploring the Sentencing Law of 2012

2013 ◽  
Vol 46 (3) ◽  
pp. 455-479 ◽  
Author(s):  
Julian V Roberts ◽  
Oren Gazal-Ayal
Keyword(s):  
United States ◽  
New Zealand ◽  
The United States ◽  
Judicial Discretion ◽  
England And Wales ◽  
Sentencing Reform ◽  
Novel Approach ◽  
Sentencing Reforms ◽  
The Law

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?

scholarly journals Is Now the Time for Major Federal Sentencing Reform?

2012 ◽  
Vol 24 (5) ◽  
pp. 382-386 ◽  
Author(s):  
Sara Sun Beale
Keyword(s):  
Significant Variation ◽  
The United States ◽  
Judicial Discretion ◽  
Federal Sentencing ◽  
Sentencing Reform ◽  
Offender Characteristics ◽  
Federal Districts ◽  
Lower Severity ◽  
Fact Finding ◽  
Legislative Changes

Although some witnesses at the United States Sentencing Commission's February 2012 hearing advocated legislative changes designed to make the Guidelines more binding or mandatory, other witnesses (including the author) opposed those changes and testified that the system is working reasonably well. This essay argues that the Commission's data do not show a level of variance that should be regarded as troubling and provide no justification for legislative changes to reduce judicial discretion. The data do show an increase in below-guideline sentences and significant variation in the rate of below guideline-sentences in different federal districts and circuits. But these statistics do not demonstrate either unjustified disparity or the need for fundamental changes in the federal sentencing system. 18 U.S.C. § 3553(a) instructs the sentencing court to consider “the history and characteristics of the defendant,” and below-guideline sentences based on relevant offender characteristics are not unwarranted. Similarly, variations in the rate of below-guideline sentences are not presumptively unwarranted. They reflect a wide variety of factors, including significant differences in prosecutorial–not judicial–practices, to which sentencing judges may appropriately respond. The Commission also heard testimony advocating other legislative changes that would preserve judicial flexibility but lower severity levels, simplify the system, enhance the reliability of fact-finding, and insulate sentencing from Congressional micro-management. In short, there is no consensus on the kinds of change, if any, that should be made. This is not the time to invite Congress to overhaul the federal sentencing system.

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