The Adjudication of Minor Offenses in New York City

American criminal justice is founded on overcriminalization and discretion. Our legislatures have long criminalized much more conduct than can be effectively sanctioned. American police and prosecutors have been granted virtually unreviewable authority (discretion) to allocate investigative and prosecutorial resources. Minor crimes absorb the bulk of our ordinary, local enforcement efforts and there is an endless supply of minor crime, which may be pursued. With minor offenses, discretion is critical at all phases. This article argues that criminal courts, where ninety percent of all cases are heard, could benefit from reform. The author argues for the development of the record so that these offenses are adjudicated on the merits, rather than merely processed

Revenge of Mullaney v. Wilbur: United States v. Booker and the Reassertion of Judicial Limits on Legislative Power to Define Crimes, The

This article offers a historically grounded account of the twists and turns in the Supreme Court\u27s sentencing jurisprudence from the end of World War II to the Court\u27s stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court\u27s effort to respond to the changing political and social landscape of crime in America. In the mid 1970\u27s, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave it to legislators who did not seem disposed to exercise their authority too broadly. By the late 1990\u27s the tide had shifted and the Court turned sentencing doctrine on its head to take power over criminal law from legislative bodies inclined to push the limits of their power and transfer it back to a newly cautious judiciary. This article explores how that shift in power was informed by changing social and political conditions and was accomplished through doctrines regulating the Sixth Amendment right to trial

Discontinuous Tradition of Sentencing Discretion: Koon\u27s Failure to Recognize the Reshaping of Judicial Discretion under the Guidelines, The

Can a judge exercise discretion and follow the law? Some think it impossible, seeing discretion as the opposite of law. Others have harmonized the two ideas, viewing discretion as the exercise of judgment according to and within the bounds of the law. Those who decry judicial discretion urge legislatures to enact more specific laws and leave less room for the vice of inconsistent results. Those who defend discretion would channel it to achieve the virtue of individualized justice. The tension between individualization and uniformity in the law is often unnecessarily heightened by an inadequate analysis of judicial discretion. The exercise of judicial discretion in federal criminal sentencing exemplifies the problems arising from those inadequate analyses. The Sentencing Reform Act of 1984 ( SRA ) dramatically altered federal criminal sentencing for the express purpose of controlling judicial discretion. Judges were once free to impose any sentence from probation to the statutory maximum and were not subject to appellate review regarding the length of that sentence. However, they are now bound by the Sentencing Guidelines 7 and subject to appellate review of the sentences they impose. Despite this dramatic change, or perhaps because of it, the Supreme Court has used the breadth and uncertainty of the concept of discretion to paper over the fundamental reallocation of sentencing power in an effort to buttress the limited authority judges retain to individualize sentences

Fifteen Years after the Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective and Just Narcotics Sentencing Perspectives on the Federal Sentencing Guidelines and Mandatory Sentencing

Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same time, average sentence length appears to be falling slowly as judicial tendency to use the authority granted in the United States Sentencing Guidelines (the Guidelines ) to mitigate sentences through downward departures appears to be increasing

Historical Roots of Regional Sentencing Variation, The Symposium

I am a law professor and a criminal defense lawyer, not a historian. It is with some trepidation that I stand before you to suggest that our very persistent regional sentencing variations have roots in the political struggles of Reformation England and the cultures of the subgroups that populated the first American colonies. I rely upon others for the historical proof, as you will see, but I think I do have standing to argue to you that we should consider whether or not there is room, even in federal sentencing, to account for deeply embedded regional variations in our basic conceptions of why and how we should punish. Aware as I am of the dangers of essentializing and the ugly history of regional variation in American penal practices, I still want to ask whether Pennsylvanians really should be expected to punish transgressors in exactly the same way as Virginians. I will suggest to you that perhaps we should respect a modicum of regional variation and not seek to eliminate every vestige of regional legal culture in America

Substantial Assistance and Sentence Severity: Is There a Correlation Substantial Assistance

How much more severe are sentences imposed in districts with low substantial assistance rates than those in which the rate is very high? In the aggregate, not at all. At first blush this may puzzle readers because substantial assistance (SA) departures are very unevenly distributed across districts and SA accounts for nearly two-thirds of all downward departures, almost 7,900 of the 12,000 in fiscal 1996. Although this pattern could result in gross disparities among districts, my analysis of inter-district sentencing patterns reveals no statistically significant correlation between the rate of SA departures and the average length of sentences imposed in a district. A high rate of SA does not mean that sentences are generally more lenient because SA departures are only one factor in the complex system that determines sentence severity. SA departures are among the most visible mechanisms, but their impact is typically blunted by district-specific practices in which prosecutors and judges respond to each other\u27s choices in ways that even out inter-district differences and mitigate the disparities that might otherwise result from wide variation in SA departures

Financial Retrenchment and Institutional Entrenchment: Will Legal Education Respond, Explode, or Just Wait it Out? A Clinician\u27s View

Both markets and ideas have turned against the American legal profession. Legal hiring has contracted, and law school enrollments are decreasing. The business models of big law and legal education are under pressure, current levels of student indebtedness seem unsustainable, and a hero has yet to emerge from our fragmented regulatory structures. In the realm of ideas, the information revolution has sparked deep critiques of structured knowledge and expertise, opening the roles of the law and the university in society to reexamination. We are less enamored of the scholar-lawyer and gaze with longing at technocrats. Thank you for this chance to speak about the role of clinical faculty in the new legal environment, which I take to be the world we will make, together, as we respond to market forces and new ideas. While my comments will necessarily advert to larger institutions and themes, my perspective is from one part (clinical faculty) of one sector (legal education) of what is, for most of us, our favorite complex social structure (law). I hope that clinical law faculty can lead and ease the transition to programs of legal education responsive to the new legal environment. Clinicians have supervised in a lot of different settings, and we know what works and how to return real value to law students. A well- structured clinical program integrates simulation, field placement, and in-house clinics to offer effective programs with reasonable efficiency. Clinicians have been experimenting with legal education for years and can help legal education meet the challenges of the new legal environment. I fear, however, that in a time of shrinking resources, some faculties and schools may become bogged down in contentious and ultimately counterproductive battles over how to allocate shrinking resources. In this version of the new legal environment, the status distinctions among law faculty could have real bite. Programs responsive to the expressed current needs of the bar and students could be sacrificed to programs controlled by better-entrenched faculty