Conference on the Federal Sentencing Guidelines, Panel 3: The Allocation of Discretion Under the Guidelines

The guidelines have shifted the locus of discretion from the judge to the prosecutor. This transfer has drastically changed sentencing because the prosecutor\u27s role is very different from the judge\u27s role. Before the guidelines, the prosecutor\u27s role in sentencing was minimal. The prosecutor could put a cap on the sentence by accepting a plea to a charge with a low maximum, but there was virtually no instance in which the charge would put a floor under the judge\u27s sentence. The judge, on the other hand, could sentence however he liked. Not only was the judge\u27s decision correct because it was final – there was no appellate review of sentences within the statutory maximum – it was correct because there was no law by which it could be called incorrect. Absent a few factors that were statutorily excluded from consideration, the judge could take into account any factor he thought relevant, and weigh it to whatever degree he thought it counted. The judge could be harsh or lenient, a retributivist or a utilitarian, a believer in deterrence or rehabilitation

Conference on the Federal Sentencing Guidelines, Panel 3: The Allocation of Discretion Under the Guidelines

The guidelines have shifted the locus of discretion from the judge to the prosecutor. This transfer has drastically changed sentencing because the prosecutor\u27s role is very different from the judge\u27s role. Before the guidelines, the prosecutor\u27s role in sentencing was minimal. The prosecutor could put a cap on the sentence by accepting a plea to a charge with a low maximum, but there was virtually no instance in which the charge would put a floor under the judge\u27s sentence. The judge, on the other hand, could sentence however he liked. Not only was the judge\u27s decision correct because it was final – there was no appellate review of sentences within the statutory maximum – it was correct because there was no law by which it could be called incorrect. Absent a few factors that were statutorily excluded from consideration, the judge could take into account any factor he thought relevant, and weigh it to whatever degree he thought it counted. The judge could be harsh or lenient, a retributivist or a utilitarian, a believer in deterrence or rehabilitation

Preponderance of the Evidence versus Intime Conviction: A Behavioural Perspective on a Conflict Between American and Continental European Law

Most apparent differences between US and continental law lose their relevance once one looks beneath the doctrinal surface and checks how doctrine plays itself out in concrete cases. One of the few exceptions is standards of proof. Not only distinguishes US law between preponderance of the evidence and beyond a reasonable doubt. It even constructs proof differently. In the US, proof is an objective, science-like affair. On the continent, proof is holistic and subjective. The decision maker is called upon to form a personal conviction, and to take on personal responsibility for her assessment of the facts. What seems utterly mystic actually has a sound scientific base. Continental law capitalises on the power of intuition. Intuition relies on unconscious mental machinery. This apparatus processes huge amounts of information in almost no time. It is programmed to come up with an assessment even if the evidence is patently incomplete. It does so by multiple feedback loops. At the end of this procedure, evidence conflicting with the final decision is devalued, whereas evidence supporting the decision is given greater weight. While instrumental in making most of the available evidence, the mental mechanism is not error proof. One particularly troublesome implication precisely concerns standards of proof. Given the mechanism is designed to force a decision, one might be afraid that it mutes the difference between standards of proof. A more stringent standard would be neutralised by an even stronger devaluation of conflicting evidence. Happily an experiment shows that the concern is misplaced. A plausible explanation is this: the standard of proof instruction tags convicting an innocent defendant by a somatic marker. If this hypothesis could be proven true, the presumption of innocence would have been rescued by an emotion