National Uniformity/Local Uniformity: Reconsidering the Use of Departures to Reduce Federal-State Sentencing Disparities
Michael M. O'Hear
Marquette University - Law School; Independent
Iowa Law Review, Volume 87, No. 2, March 2002
A wide range of crimes may be prosecuted in either state court or federal court. A successful federal prosecution typically results in a much longer sentence than would a state prosecution. The disparity between state and federal sentences raises at least two major concerns. First, a federal prosecution may be undertaken in lieu of state prosecution as a result of random chance, vindictiveness, bias, or other questionable considerations. In such cases, the imposition of a relatively harsh federal sentence may appear arbitrary. Second, the imposition of relatively harsh federal sentences may circumvent the criminal justice policy preferences of state and local communities. In light of these concerns, the author proposes that federal judges consider state sentencing laws when deciding whether to depart downward from the presumptive ranges specified in the federal sentencing guidelines. The author suggests a set of criteria to identify those cases for which departure on the basis of federal-state disparities would be most appropriate.
Number of Pages in PDF File: 53
Keywords: Federal Sentencing Guidelines, Departures, Sentencing Laws, Federal-state Disparities
JEL Classification: K14Accepted Paper Series
Date posted: November 29, 2003
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