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University of Mississippi School of Law
Mason, Donald R.

Sentencing – Law 668
Prof. Donald Mason
Spring 2010

Jan. 11th
-The major difference between guideline or determinate and indeterminate sentencing is that…
-For some offenses, Mississippi has an indeterminate sentencing, but for other offenses, MS has determinate sentencing.

Jan. 13th
-Familiar yourself with the US Sentencing Commission.
-Check out Sentencing Law Blog and Policy
-MS Dept of Corrections Online.
-Federal Prison is in Yazoo City.

US vs Comstock: Sexually dangerous persons – civil commitment system, recently heard by the SC. Argued yesterday. Federal government civil commitment system. Is this constitutional? Persons who have completed time and persons who have not been tried b/c were found incompetent to stand trial. Argument for prisoners is that this is something that should be done by states rather than feds. Feds argument is that these persons may fall through the cracks.

-The inclusive theory of punishment is a way of referring to the reality that it is exceedingly difficult to look at all the purposes of sentencing. The inclusive theory of punishment says that all reasons to punish should be looked at collectively.

Two Camps of Thought for Sentencing:
(1) Consequentialist/Utilitarian – forward looking from date of proceeding. Punishment should benefit society. Looks at priors to determine how much punishment should be inflicted. (Looks at consequences of the sentence & benefits to society). Exs. Rehabilitation, restraint, specific deterrence, general deterrence, incapacitation, restoration
(2) Deontological – backward looking to the crime. Ask “What punishment is deserved for this crime?” Does not look at consequences of inflicting punishments. Punishment is deserved and just only when it restores the moral balance. Does not look at priors. (looks at notions of moral duty to the offender & righting moral wrongs done to victims). Exs. Education, retribution

All types of punishment could be in either category, but some are more like one category than others.

(Thought that distinction really comes from public versus private prosecutions.)

There is a federal statute that lists the guiding purposes for sentencing. Judges should sentence with those purposes in mind.

US v. Bergman (D.C. So. D.N.Y. 1976)
Judge Franklin mentioned both the need for general deterrence and just deserts (the punishment the crime deserves) in 1976. See pg 12/14. He also discusses the character of the offender. Looks at character vs conduct. The opinion also discusses “disparity” in sentencing, meaning that some offenders commit the same crime and receive a different result. Uniform sentencing was not put into effect until 1989. There is tension between the interest in uniformity and individualizing sentencing.

Jan. 20th.
1) Determinate sentencing system: a system in which there is no discretionary releasing authority and a defendant may be released from prison only after expiration of the sentence imposed (less available good time). Ex. Federal System
2) Indeterminate sentencing system: a system in which a discretionary releasing authority, such as a parole board, may release a defendant from prison prior to expiration of the sentence imposed.
3) Structured sentencing system: a system providing some form of recommended sentences within statutory sentence ranges.
4) Sentencing guidelines system: procedures to guide sentencing decisions and a system of multiple, recommended sentences based generally on a calculation of the severity of the offense committed and the criminal history of the offender.
5) Presumptive sentencing guidelines: sentencing guidelines that require a judge to impose the recommended sentence or one within a recommended range, or provide justification for imposing a different sentence.
6) Voluntary sentencing guidelines: One Slides – posted on Blackboard
7) Enhanced sentence: a sentence greater than the maximum sentence authorized for an offense based solely on the facts reflected in the jury verdict or formally admitted by the defendant.

The Apprendi/Blakely rule as restated by Booker:
Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.

er time than normally given (recommend to judge), you may agree to not make a recommendation at all, i.e. not to oppose the defense’s recommendation, and the parties may agree together on a sentence.
-See Rule 11 of the Federal Rules of Criminal Practice to see how pleas are considered in Federal Courts.

Why 95% plead guilty?
-Reduces exposures
-Greater certainty
-Avoids judge hearing details of case
-Spares victims stresses of testifying
-Limited resources and efficiency concerns
-need for cooperating defendants
-Helps individualize system response

Criticisms of pleas:
-Innocent Ds plead guilty
-Disparity in bargaining power
-behind the scenes negotiations
-Hides police misconduct
-Erodes public confidence in system
-Allows escape of full responsibility, reducing deterrent effect
-Insufficient victim involvement
-Discriminatory impact

Banning Plea Bargaining
-Should plea bargaining be abolished? Limited?
-Could this be done effectively?
-Alaska, California, Texas, Arizona have experimented with limits on plea bargaining.

Is Plea Bargaining constitutional?
Brady v. US
-Tough bargains are not unconstitutional bargains
-Prohibited bargaining tactics:
-Physical threats or harm
-Mental coercion
-Improper behavior, i.e. bribes
-At the time Brady entered the plea, it was voluntary even though it was a tough bargain to make.

Boykin v. Alabama
-pleas must be knowing and voluntary

Permissible pressure on Ds?
Bordenkircher v. Hayes
-Ok to “threaten” with additional, or more serious, charges? Yes.
-Should, or must, all sustainable charges be filed “up front”? No.
-As long as there is probable cause to bring charges, the prosecutor may threaten to bring more charges if the D doesn’t plea.