New Essays on Restitution and Sentencing Commissions

I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively. These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.

The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.

The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions. In considering these case studies, as well as the experience with sentencing commissions in a few other states, my primary theme is the relationship between sentencing commissions and legislatures. (As I point out in the essay, although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.”) A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.

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Sentence Not Improperly Enhanced Based on Defendant’s Silence, Seventh Circuit Rules

At sentencing, defendants are expected to express remorse for their crimes.  Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis.  But what if the defendant chooses to say nothing at all at sentencing?  On the one hand, a judge might infer a lack of remorse from the defendant’s silence.  But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.

The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.).  Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing.  The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis.  On appeal, Keskes argued that the sentence violated his right to remain silent.  The Seventh Circuit, however, affirmed.

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Which Cities Have the Largest Sentencing Disparities?

For a generation, federal sentencing policy-makers have been preoccupied by the ideal of national uniformity — the ideal that federal judges in Milwaukee and Miami should sentence the same as federal judges in Michigan and Maine.  I’m a long-time skeptic of this ideal; since most of the impact of most crime is local, why shouldn’t local needs and values determine the punishment?  But even I am troubled by judge-to-judge disparities within a single federal courthouse.  The random assignment of a case to one judge instead of another should not govern the punishment.

Although there has been a great deal of anecdotal evidence of such local disparity, it has been very hard to quantify because of a longstanding agreement between the U.S. Sentencing Commission and the federal judiciary that blocks the release of judge-specific setencing data.  However, thanks to a great deal of painstaking effort by the Transactional Records Access Clearinghouse, it is now possible to analyze the sentencing practices of individual judges.

Earlier this year, TRAC made waves with a public announcement of which districts had the greatest inter-judge disparity.  However, TRAC’s methodology was sharply criticized, and with good reason.  More recently, TRAC published a new and improved version of its report at 25 Fed. Sent. Rep. 6 (2012).

So, which cities have the greatest disparities?  

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