Sentencing is Dang Hard... And So...

Federal Sentencing Reporter, Vol. 32, No. 3, February 2020

Ohio State Public Law Working Paper No. 529

5 Pages Posted: 21 Feb 2020 Last revised: 27 Feb 2020

See all articles by Douglas A. Berman

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: August 15, 2018

Abstract

This essay, adapted from a speech upon receipt of the 2018 Richard P. Kern Memorial Award from the National Association of Sentencing Commissions, details why sentencing is “dang hard” and explores implications of that reality. The essay argues that the challenges of sentencing not only demand that all jurisdictions have a sentencing commission as an essential permanent agency, but also call for these commissions always to think big and to strive to work deep and wide to study all facets of modern criminal justice systems. The essay also contends that sentencing errors may be quite common and that, even if we manage to get sentencing “right” at the outset, changes in society and in individuals can make even “right” sentences wrong over time. Sensible humility about the likelihood of sentencing errors further suggests, for example: at the rule-making stage, having sentencing laws include sunset provisions and having sentencing commissions review and audit major guidelines and related sentencing practices on a regular basis; at the case-specific stage, having far more robust substantive appellate review of sentences and more robust mechanisms for parole and judicial reconsideration and clemency, and even developing more creative means to apply and revise different forms of punishment as time passes and new information is gathered.

Keywords: sentencing, sentencing reform, sentencing commissions, sentencing data, errors

Suggested Citation

Berman, Douglas A., Sentencing is Dang Hard... And So... (August 15, 2018). Federal Sentencing Reporter, Vol. 32, No. 3, February 2020, Ohio State Public Law Working Paper No. 529, Available at SSRN: https://ssrn.com/abstract=3541805 or http://dx.doi.org/10.2139/ssrn.3541805

Douglas A. Berman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

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