Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers

Abstract

This essay, adapted from a keynote speech at a 2010 symposium at Temple University School of Law, explains why prosecutors may make inaccurate initial sentencing judgments when engaging in their first-look sentencing decision-making early in a criminal prosecution and argues that the extraordinary sentencing power often possessed by prosecutors alone seems contrary to fundamental tenets of our constitutional and political structure. Against this backdrop, the essay contends:

(1) that "second-look" mechanisms should be built into all modem sentencing systems, and

(2) that prosecutors should be given the power and a formal responsibility to engage in some type of formalized second-look sentencing decision-making.

Keywords: sentencing, sentencing reform, prosecutors, second-look sentencing, sentencing errors, checks and balances