Should Death Be So Different?: Sentencing Purposes and Capital Jury Decisions in an Era of Smart on Crime Sentencing Reform

We are in an era of “Smart on Crime” sentencing reform. Several states and the federal government have made major changes to their sentencing policies—from reducing the incarceration of low-level, nonviolent drug offenders to the use of evidence-based sentencing to focus the most severe punishments on those who are at the greatest risk of recidivism. Often, today’s reform efforts are spoken about in terms of being fiscally responsible while still controlling crime. Though such reform efforts do not explicitly acknowledge purposes of punishment—such as retribution, incapacitation, rehabilitation, or deterrence—an undercurrent running through all of these reforms is an effort for sentencing to make sense in light of sentencing goals given the resources available. Therefore, thinking about ultimate purposes or goals in sentencing is necessarily a part of the sentencing reform discourse

Nearsighted and Colorblind: The Perspective Problems of Police Deadly Force Cases

In dealing with the recently publicized instances of police officers’ use of deadly force, some reform efforts have been focused on the entities that are central to the successful prosecutions of police—the prosecutor and the grand jury. Some have suggested special, independent prosecutors for these cases so that the process of deciding whether to seek charges against police officers remains untainted by the necessary cooperative relationship between the police department and the prosecutor’s office. Others have urged more transparency in the grand jury process so that the public can scrutinize a prosecutor’s efforts in presenting evidence for an indictment. Still others would like to change the grand jury process entirely—by allowing defense attorneys to participate or giving individual grand jurors more control over the proceedings. While there is merit to all of these approaches, this Article maintains that so long as the legal standard only allows for the prosecution of police when the officers are unreasonable in using force, which focuses on a moment of the suspect-victim’s dangerousness, there will not be much change in the success of prosecuting police for the use of deadly force. The persistent problem at the core of prosecuting police for the use of deadly force is that society has not developed norms of acceptable police conduct, and to the extent that any norms do exist in societal views of appropriate law enforcement, they are built upon a foundation of racial biases that all in society unfortunately share. The answer to this dilemma, then, cannot solely focus on removing the conflicted prosecutor or granting more autonomy to the grand jury. To truly curb police misconduct, at least part of the solution must require a shift in perspective. It requires correcting the nearsighted view of reasonable police behavior so that the focus includes norms of conduct taken before an officer gets to the point of making a decision to kill. Further, the solution also requires correcting the colorblind view of deadly force cases by confronting the existence and persistence of racial bias in views on dangerousness and criminality. Prosecutors and grand jurors have roles to play in properly bringing charges against officers that have acted outside of their appropriate roles. But, until those appropriate police roles are normalized and racial bias is confronted, even the most well meaning prosecutor and the most searching grand jury may have difficulty reaching a just result in police deadly force cases

The Influence of Past Racism on Criminal Injustice: A Review of The New Jim Crow and The Condemnation of Blackness

This essay reviews The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander; and The Condemnation of Blackness: Race, Crime and the Making of Modern Urban America by Khalil Gibran Muhammad

Making The Punishment Fit The (Computer) Crime: Rebooting Notions Of Possession For The Federal Sentencing Of Child Pornography Offenses

Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has a problem, as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion—computers and the Internet—and their role in changing the realities of child pornography possession. This Article argues that computers and the Internet are important factors in understanding both the victimization of the children portrayed in the illegal images and the formulation of appropriate punishment for those who view and possess such images

Sentencing Disparities and the Dangerous Perpetuation of Racial Bias

This Article addresses the role that racial disparities—specifically sentencing disparities—play in perpetuating the racial bias that increases the daily danger of living as a Black American in the United States. As documented in the news and by sometimes humorous internet memes, White people have called the police many times to report Black people who were simply living as any other American. This trend highlights the manner in which the U.S. criminal justice system’s racial inequities feed into biased beliefs about Black criminality. This Article argues that instead of tackling implicit bias as a means to fight sentencing and other criminal justice bias, we must actively correct and eliminate the disparities head-on

The More Things Change: A Psychological Case against Allowing the Federal Sentencing Guidelines to Stay the Same in Light of Gall, Kimbrough, and New Understandings of Reasonableness Review

This Article uses an analysis of the psychology of decision-making to argue that it is time to rethink the proper role of the Sentencing Guidelines. Psychology teaches that guidelines have an anchoring influence on an individual's decision-making capabilities. While this anchoring effect may be harmless when the Guidelines ranges truly reflect sentencing purposes, the same is not true when the Guidelines themselves are the product of bad sentencing policy. In Kimbrough, by allowing district courts to impose a sentence that results from the court's disagreement with the crack/powder cocaine disparity found in the Guidelines, the Court has acknowledged that the Guidelines ranges do not always reflect a sound adherence to the purposes of sentencing. In both Gall and Kimbrough, however, the Supreme Court continues to require district courts to calculate the proper Guidelines range and to consider that range before deciding on a reasonable sentence for a defendant. Circuit courts, then, must review a sentence for both procedural and substantive reasonableness. In light of the psychological anchoring aspects of the Guidelines, the procedural and substantive components of reasonableness review that are set forth in Gall and Kimbrough are at odds when placed within a system that requires potentially faulty Guidelines ranges to be calculated in order for a sentence to be deemed reasonable. This Article explores that tension and ultimately suggests that the Supreme Court do away with the requirement to calculate the Guidelines, and that Congress or the Supreme Court proscribe a new, truly advisory role for the Federal Sentencing Guidelines to play