In addition to closely reviewing the 1949 Williams v. New York case (which can be read in full here and is worth the time to read in full), we will discuss in class next week which particular institutional players tend to exercise the most formal and informal sentencing power, and whether and how you think these institutional players should have their powers limited and regulated. Long story short: legislatures, prosecutors, trial judges, and parole/prison officials have historically wielded the most sentencing power, but many modern reforms have given larger roles to sentencing commissions and appellate judges.
As suggested in class, I am eager to have everyone consider this issue from the other side of the equation: that is, I want to hear whether and why you might think certain institutional players should have little or no formal or informal sentencing power. Again, history is somewhat instructive: victims, police, juries (except in capital cases) and appellate judges have historically wielded little sentencing power, but many modern reforms have given larger roles to victims and appellate judges.
As we will discuss, every institutional player that actively seeks to be involved in the sentencing process usually can have some input or impact. But that practical reality should not prevent a sentencing system (or us) from exploring how to limit the authority of those players we believe should have the least power to impact sentencing outcomes. (There are lots of general reasons why we might want to limit and/or regulate a particular player's sentencing power: e.g., we fear that particular institutional player has a certain problematic/systematic bias, or will too often pursue a disfavored punishment purpose or form, or will be too subject to undue influences by other actors, or will tend to make less-than-thoughtful or even discriminatory decisions.)
So, who do you think should have the least sentencing power? Why?
Sentencing Class @ OSU Moritz College of Law 
7 responses to “Who should have the least sentencing power in American CJ systems?”
As related to my comment to the last blog, I definitely think the owners of private prisons should not have any sentencing power whatsoever. People who stand to make money off of the fact that people commit crimes should at least not have the power to determine how long the government needs to pay for them to remain in their prison.
Since that is not an option on the above list, however, I think that the separation of the processes of finding guilt and sentencing has been implemented to guard against disparity of sentencing. Some juries are prohibited from sentencing probably to guard against discrimination, but if a sentencing body is not privy to as much detail as the jury, then they will have no choice but to sentence based on a summary of the crime without as much insight into the personality of the criminal as juries are presumed to have.
This could be a good thing or it could be a bad thing. It could keep people from imposing high sentences on criminals merely because they are unlikeable. It could also keep sentencers from taking mitigating factors into consideration, like the fact that the person is a first time offender or unusual stressful circumstances that the criminal had gone through immediately before committing the crime.
Anyone ever see the ABC show Scandal? That show is all about how your reputation and how people perceive you is all in how you present yourself and is susceptible to manipulation. In that show, bad people get away with crimes and good people are punished not based on the fact of the matter, but on how the public, the sentencers, etc. perceive them. My point here is, if a person’s reputation is strategically constructed anyway, maybe it would be a good thing to give people sentencing power that were not as manipulated by the events of the trial as the jurors.
[I am still on the fence about the disparity issue. Professor Berman made really persuasive arguments about how disparity is not necessarily a bad thing. But isn’t the whole field of human rights based on the idea that we do not want worldwide disparity in punishment (among other things), and that there are certain fundamental human rights that should be preserved even when people commit crimes, and not state to state but all around the world? Disparity is not necessarily always a bad thing, but in some sentencing situations, we should care about disparity because they represent a lack of alignment with what we perceived to be universal or fundamental ideas of fairness that are not being met.]
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Great points, Hannah, as well as a great pop-culture reference!
One caveat/clarification/question based on the first paragraph: aren’t career defense attorneys (especially white-collar ones) the folks in our system who really make the MOST money “off of the fact that people commit crimes”?
Owners of private prisons can make money off how many people get sent to prison, and even this depends on them being able to run a prison (much) cheaper than the state can. But it is our (state controlled) decision to use prison as a sentence a whole that provide a market for the owners of private prisons — e.g., if we castrated or executed all child rapists, private prison operators would not be able to make a dime off the crime of child rape.
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This may be an unpopular position, but I think that victims should have the least sentencing power in the American Criminal Justice system. My main reasoning for this comes from the inherent, systemic, and problematic bias that comes from being a victim. I do not think that victims, as a whole, can be objective enough to provide and recommend fair sentencing policies and solutions. I think victims have their judgment inherently muddled by the fact that they were a victim. The desire from some victims for retribution and revenge has the potential to lead to unfair sentencing policies and practices. Lastly, I think the interests of victims can be and are already represented and defended by other groups (judges, legislatures etc) that wield more sentencing power.
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Thanks for your courage in expressing this view, Max, though I wonder if you feel this way for ALL victims and/or would be eager to require judges, juries and/or other sentencing participants from being shielded from the views of victims. And with these thoughts in mind, you might check out the Texas jury sentencing story concerning Josh Brent and think about whether you believe the jury should have been precluded from hear that the mother of the friend killed by Josh Brent had forgiven Mr. Brent.
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I actually agree with some of your arguments Max. Although I think that a victim’s voice should be heard during the sentencing process, I do not think that victims are able to look objectively at the situation and determine what the best sentence is based on the facts. If our system was based solely on retributive goals and no utilitarian goals, then maybe the victim would be the perfect sentencer. They would be able to fairly accurately describe what the just deserts should be for the offender. However, our system has other goals that are better evaluated by a more objective individual, such as a judge. Therefore, I think the victim should have a voice; however, I think it should bear little weight relative to other factors in determining an offender’s sentence.
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I agree with Max’s point to an extent as well, but perhaps for a different reason. I think Max is right insofar as some victims can want retribution and revenge to a greater extent than is necessary or desirable. However, the opposite can be true as well: victims may not care much at all, or perhaps they don’t want retribution or revenge and truly just want to see the best for the person who hurt them, or perhaps they just want to forget about the matter and move on and don’t want to participate in sentencing.
Take Matthew Cordle’s DUI confession and sentencing for example: http://www.cnn.com/2013/10/23/justice/ohio-dui-confession-sentencing/. The ex-wife of the victim who was killed in the accident says that the victim wouldn’t want to see two lives lost as a result and that her ex-husband would want a lesser sentence for Mr. Cordle since he expressed remorse and could still make something of his life. A victim of an unrelated DUI accident also asked for a lesser sentence, as he has waited years for an apology and never received one and thinks Mr. Cordle’s apology means he should get a lesser sentence. And the daughter of the victim was the opposite: she doesn’t want the sentence to be lesser because she doesn’t want the message to be that if you confess and apologize you get away with it. She seemed to advocate for the maximum sentence (8 and 1/2 years), since her father is “never coming back”.
I don’t think that people should be sentenced based off of how forgiving (or revengeful) their victim is; something about that does not sit well with me. So perhaps victims should be able to speak in regards to how the crime has changed their lives, but shouldn’t advocate for any specific sentence.
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After yesterday’s class, now I’m pretty sure the right answer is that coroners should have the least sentencing power.
Private prisons popped into my mind, and then I saw Hannah’s post. I completely agree with her. What bothers me most about private prisons in the sentencing process is the legislative influence they seek to assert. Private prison companies have supported and helped write “three-strike” and “truth-in-sentencing” laws that drive up prison populations. This report talks about their lobbying activities: http://www.justicepolicy.org/uploads/justicepolicy/documents/gaming_the_system.pdf. I guess any business seeking to make money will lobby, but for whatever reason in this particular case I find that troubling.
From the slate of more traditional options, this might be an odd combination but I am torn between appellate judges and prosecutors. To emphasize proportionality and uniformity, and to minimize discrimination and disparity, I would say that minimizing prosecutors’ abilities to impact individuals’ sentences by empowering appellate judges to establish uniform nationwide standards through their decisions might be a good thing. Punishments can vary wildly simply based on the county in which one commits the crime. However, stripping prosecutors–especially local, elected ones–of power and putting it in the hands of unelected judges is an affront to Federalism, democracy, and a community’s power to decide for itself how offenders should be punished.
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