Abstract

http://ssrn.com/abstract=2073916
 


 



Do Sentencing Guidelines Increase Prosecutorial Power? – An Empirical Study


Oren Gazal-Ayal


University of Haifa - Faculty of Law

Hagit Turjeman


University of Haifa - Department of Sociology & Anthropology

Gideon Fishman


University of Haifa - Department of Sociology & Anthropology

February 21, 2013

Law and Contemporary Problems, Vol. 76, No. 1, 2012

Abstract:     
Sentencing guidelines have been enacted across the United States and are currently being considered in other countries, including Israel. However, researchers argue that the new sentencing structures shift too much power to prosecutors. A unique set of data from Israel allows for a controlled examination of sentencing outcomes for people accused of aiding illegal aliens during three time periods: before the imposition of strict judicial sentencing guidelines, after this change was made, and then following the court’s mitigation of those guidelines. We find that prosecutors did not gain direct sentencing power from the guidelines. In fact, judges were often willing to depart from the guidelines even when prosecutors asked them to follow them. The guidelines might have had an effect on defendants, leading them to believe that they better plea bargain with the prosecutors. But when defendants did not bargain, they, in most cases, managed to convince the court not to follow the harsh guideline, even if prosecutors objected to the departure. It seems that judges, more than prosecutors, are willing to depart from harsh guidelines even when they are supposed to be bound by them. Hence we did not find support to the transfer of sentencing power theory.

Number of Pages in PDF File: 29

Keywords: criminal law, sentencing, prosecutor, discretion, sentencing guidelines, proprietorial discretion, mandatory sentences, aiding illegal aliens

JEL Classification: K14, K41, K42

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Date posted: September 7, 2012 ; Last revised: March 13, 2013

Suggested Citation

Gazal-Ayal, Oren and Turjeman, Hagit and Fishman, Gideon, Do Sentencing Guidelines Increase Prosecutorial Power? – An Empirical Study (February 21, 2013). Law and Contemporary Problems, Vol. 76, No. 1, 2012. Available at SSRN: http://ssrn.com/abstract=2073916

Contact Information

Oren Gazal-Ayal (Contact Author)
University of Haifa - Faculty of Law ( email )
Mount Carmel
Haifa, 31905
Israel
HOME PAGE: http://weblaw.haifa.ac.il/en/Faculty/GazalAyal/Pages/default.aspx
Hagit Turjeman
University of Haifa - Department of Sociology & Anthropology ( email )
Israel
HOME PAGE: http://society.haifa.ac.il/index.php?id=43&option=com_content&task=view
Gideon Fishman
University of Haifa - Department of Sociology & Anthropology ( email )
Israel
HOME PAGE: http://society.haifa.ac.il/index.php?id=31&option=com_content&task=view
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