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Do Sentencing Guidelines Increase Prosecutorial Power? – An Empirical Study

29 Pages Posted: 7 Sep 2012 Last revised: 13 Mar 2013

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

Date Written: February 21, 2013

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.

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

JEL Classification: K14, K41, K42

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: https://ssrn.com/abstract=2073916

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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