Abstract

http://ssrn.com/abstract=1998457
 
 

Footnotes (154)



 


 



The Promise of Trailing-Edge Guidelines to Resolve the Conflict between Uniformity and Judicial Discretion


Mark William Osler


University of St. Thomas - School of Law (Minnesota)

2012

U of St. Thomas Legal Studies Research Paper No. 12-02

Abstract:     
Until the mid-1980’s, federal judges had broad discretion in sentencing defendants. However, this created disparities in sentencing from one judge to another, and this created a desire for much greater uniformity. This drive for uniformity resulted in a number of strict legislative measures, including mandatory minimum sentences and mandatory sentencing guidelines. Over time, the judiciary branch grabbed back some discretion (largely through the Supreme Court’s Booker decision in 2005, which made the sentencing guidelines advisory rather than mandatory), but this has resulting in a return to disparities.

The underlying problem is a view of sentencing that sees a zero-sum equation between judicial discretion and uniformity - that is, the belief that uniformity must be established by curtailing judicial discretion. This article argues for a different model: Sentencing guidelines that use peer effects and modern technology to directly use judicial discretion to create uniformity. Instead of mandated, arbitrary guidelines, a computer-based sentencing information system would require a sentencing judge to review and consider all the other sentences chosen by judges in similar situations, and this body of experience would functionally become the guidelines. A judge who strays too far from the norm would have to justify that choice based on unusual and compelling circumstances. Such a system would harness discretion as the engine towards uniformity, and discard the false dichotomy between the two that has created so much discord.

Number of Pages in PDF File: 54

Keywords: sentencing, federal sentencing, criminal sentencing, sentencing guidelines, sentencing disparities, sentencing discretion, trailing-edge guidelines

working papers series


Download This Paper

Date posted: February 3, 2012  

Suggested Citation

Osler, Mark William, The Promise of Trailing-Edge Guidelines to Resolve the Conflict between Uniformity and Judicial Discretion (2012). U of St. Thomas Legal Studies Research Paper No. 12-02. Available at SSRN: http://ssrn.com/abstract=1998457 or http://dx.doi.org/10.2139/ssrn.1998457

Contact Information

Mark William Osler (Contact Author)
University of St. Thomas - School of Law (Minnesota) ( email )
MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
(254) 717-7032 (Phone)

Feedback to SSRN


Paper statistics
Abstract Views: 688
Downloads: 52
Download Rank: 230,112
Footnotes:  154

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.266 seconds