Sentencing and Comparative Theory

CRIME, PROCEDURE AND EVIDENCE IN A COMPARATIVE AND INTERNATIONAL CONTEXT: ESSAYS IN HONOUR OF PROFESSOR MIRJAN DAMASKA, Chapter 18, John Jackson, Máximo Langer, Peter Tillers, eds., Hart Publishing, 2008

Minnesota Legal Studies Research Paper No. 10-32

21 Pages Posted: 5 Jun 2010

See all articles by Richard S. Frase

Richard S. Frase

University of Minnesota Law School

Date Written: June 3, 2010

Abstract

Mirjan Damaska and other comparative criminal justice theorists have given very little attention to how comparative law models and theories might apply to sentencing. Although numerous scholars have studied the differences in sentencing alternatives and overall punishment severity across national boundaries, almost none have linked these differences to the models and theories used to describe, explain, and predict changes in criminal pretrial and guilt-determination procedures. In the United States there have been significant recent changes in sentencing goals and procedures, in particular: 1) retributive and public safety goals have been given increased emphasis, while rehabilitation has been de-emphasized; 2) many U.S. jurisdictions now use some form of sentencing guidelines; 3) almost all jurisdictions apply mandatory or mandatory-minimum sentences to certain offenders; 4) the U.S. Supreme Court has held that certain facts permitting sentence-enhancement may no longer be informally determined by the trial judge at the sentencing hearing, but must be submitted to the jury and proven beyond a reasonable doubt; and 5) overall sentencing severity (as measured, for example, by prison populations relative to resident population and relative to criminal caseloads) has risen substantially in almost all U.S. jurisdictions. Do comparative law models help to explain any of these changes? This essay considers whether Damaska’s theories, some variation on his theories, or alternative comparative law theories might help to explain cross-national variations (as well as within-nation variations, across states and other jurisdictions) in sentencing goals, procedures, alternatives, and outcomes.

Keywords: comparative sentencing, sentencing purposes, sentencing procedures, sentencing severity, punishment purposes

Suggested Citation

Frase, Richard S., Sentencing and Comparative Theory (June 3, 2010). CRIME, PROCEDURE AND EVIDENCE IN A COMPARATIVE AND INTERNATIONAL CONTEXT: ESSAYS IN HONOUR OF PROFESSOR MIRJAN DAMASKA, Chapter 18, John Jackson, Máximo Langer, Peter Tillers, eds., Hart Publishing, 2008, Minnesota Legal Studies Research Paper No. 10-32, Available at SSRN: https://ssrn.com/abstract=1619926

Richard S. Frase (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-625-0831 (Phone)
612-625-2011 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
258
Abstract Views
1,695
Rank
228,096
PlumX Metrics