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Date: April 30, 2024 Tue
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Results for judicial discretion
10 results foundAuthor: United States Sentencing Commission Title: Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report's Multivariate Regression Analysis Summary: In 2006, the United States Sentencing Commission undertook a review of the impact on federal sentencing of the Supreme Court's decision in United States v. Booker. As part of the review, the Commission performed an analysis of data from the federal courts to examine whether differences in the length of sentenced imposed on offenders were correlated with demograhpic characteristics of those offenders. This report updates the earlier analysis. Details: Washington, DC: United States Sentencing Commission, 2010. 24p. Source: Internet Resource Year: 2010 Country: United States URL: Shelf Number: 117827 Keywords: Judicial DiscretionSentencing |
Author: Northern Ireland Assembly. Research and Information Service Title: Comparative Research into Sentencing Guidelines Mechanisms Summary: The Hillsborough Agreement in 2010 contained a commitment to establish a sentencing guidelines council. Recently the Department of Justice (DOJ) published a consultation document “Consultation on a Sentencing Guidelines Mechanism”, which sets out three options for a sentencing guidelines body: an independent sentencing guidelines council with a statutory remit for producing guidelines; an independent sentencing advisory panel with a statutory remit to draft guidelines for approval of the Court of Appeal; and a judicial oversight committee known as a Sentencing Group to be established by the Lord Chief Justice. This paper provides information on comparative sentencing guidelines mechanisms in a number of jurisdictions including England and Wales, Scotland, Republic of Ireland, Australia, Canada, Minnesota, US (federal level), New Zealand (legislated for but not established), South Africa (proposed but not legislated for), Germany, France and the Netherlands. The paper examines a number of issues to be considered in establishing a guidelines body: the objectives of sentencing guidelines bodies, their functions, format of guidelines, membership and structure and relationships with other institutions and alternatives to sentencing guidelines bodies. Sentencing guidelines bodies in England and Wales and as legislated for in Scotland have similar objectives to those proposed for Northern Ireland. In some jurisdictions concerns have been raised about increases in prison population, including in England and Wales, New Zealand, South Africa and Minnesota. Therefore some bodies have objectives in relation to the management of prison resources. In England and Wales, the Sentencing Council must conduct must publish a resource assessment in respect of the guidelines to include information on the likely impact of the guidelines on prison places and contain information in its annual report on sentencing factors including an assessment by the Council on changes in sentencing practice likely to have an effect on prison resources. Sentencing bodies carry out a range of functions including: drafting guidelines, public education, information dissemination and resources functions. In England and Wales other functions include publishing resources assessment in respect of guidelines and monitoring the operation and effect of guidelines. Some bodies have functions beyond sentencing matters; for example bodies in Australia and New Zealand have functions relating to parole matters. Other bodies have functions in relation to the development of legislation and crime policy such as bodies in the United States. This paper outlines how the format of guidelines may differ. Guidelines in England and Wales are described as narrative in nature; legislation sets out how guidelines should be structured including: different categories of offence illustrating degrees of seriousness, factors including the offenders culpability and harm caused, the range of offences and starting points in the offence range. In contrast, the mechanism used in some of the United States models has been described as numerical. Minnesota operates a grid system includes two axes; one axis takes into account the seriousness of the offence and the other takes into account the offender‟s criminal record. The point where the seriousness of the offence and criminal history intersect determines the range of the offender‟s sentence. The numerical models have been criticised for impacting on judicial discretion. Sentencing guidelines bodies examined in this paper vary in membership, for example in size and in the composition of judicial and non judicial members. Some models such as the Sentencing Council in England and Wales have a greater number of judicial members. Scotland has legislated for a balance of judicial/non-judicial membership. Some sentencing bodies in Australia have no judicial representation. Furthermore some sentencing bodies in Australia and as proposed in New Zealand sentencing body have representatives with experience of working with particular groups, for example indigenous or ethnic minority groups. The DOJ proposes that members will be appointed for a fixed non renewable term. This is the same as the position in Scotland, however some models allow for a renewal of membership for example in the New Zealand and South Africa models. In its consultation document, the DOJ has proposed a secretariat to support a Northern Ireland body carry out its functions. Most of the bodies examined in this paper are supported by a secretariat with various support functions including legal expertise, research and analysis, community engagement and administration functions. The Scottish Government in its policy consultation paper outlined a relationship between the Scottish Sentencing Council and the Scottish Court Service in the provision of IT support. Consideration may need to be given to staff such as IT support services in a Northern Ireland model. The paper considers relationships between a sentencing guidelines mechanism and other institutions such as courts. The consultation document does not make reference to a relationship with the Northern Ireland Assembly but does set out a proposed relationship between the council and the Justice Minister. Some of models examined have relationships with their respective legislatures in approving or vetoing guidelines, for example in New Zealand and in Minnesota. Interestingly, the House of Commons Justice Select Committee has a role in the scrutiny of guidelines. An example of the scrutiny role is the holding of inquiries into draft sentencing guidelines. Some of the bodies have direct relationships with the courts. For example guidelines may have to be approved by courts or the courts may propose the drafting of guidelines. In Victoria the Court has to notify the sentencing advisory body when issuing a guidelines judgment. In the consultation document, the DOJ has highlighted that courts will be under a duty „to have regard to‟ sentencing guidelines and state reasons if a sentence differs from a guideline this was the previous position in England and Wales and is the current position in Scotland. Some models appear to have more robust “departure tests” such as in England and Wales where the courts must follow guidelines unless satisfied it is contrary to the interests of justice to do so. There are some jurisdictions that do not have sentencing guidelines. For example in some jurisdictions such as Germany, France, Netherlands and Canada, sentencing matters are set out in Penal or Criminal Codes or in Ireland where some offences in criminal law set out minimum sentences. It should be noted that in the Netherlands, the Penal Code does not impose limits on the type or severity of sanctions that can be imposed enabling judges to exercise discretion in sentencing matters. In Canada, the Criminal Code makes provision for principles and purposes of sentencing and establishes mandatory minimum sentences of imprisonment in a range of offences. It has been suggested that the Youth Criminal Justice Act (2002) in Canada goes some way to introducing sentencing guidelines into legislation as it contains a range of sentences that can be imposed on juveniles. In the Republic of Ireland, judges largely have discretion in sentencing matters, except for some offences which carry maximum and in some cases minimum penalties. Another approach is the use of sentencing information systems. The judiciary in the Republic of Ireland have developed a pilot project, the Irish Sentencing Information System (ISIS) is a website which provides information to judges on sentencing practices in criminal proceedings. The value of such systems has been noted with benefits including judicial sentencing authority, discretion and transparency. However in response to a recent discussion paper in the Republic of Ireland on the White Paper on crime, some concerns have been raised regarding the re-enforcement of questionable practices if used long term. The future of this mechanism is uncertain as the development of the website has resource implications and it has been acknowledged this will need to be considered in the current financial climate. The issue of sentencing guidelines has been the subject to consultation in recent white paper in which submissions favoured sentencing guidelines as a means to addressing perceived inconsistencies in sentencing practices. It remains to be seen whether a formal system of sentencing guidelines will be introduced. Details: Belfast: Northern Ireland Assembly, 2011. 43p. Source: Internet Resource: Accessed July 12, 2011 at: http://www.niassembly.gov.uk/researchandlibrary/2011/6611.pdf Year: 2011 Country: International URL: http://www.niassembly.gov.uk/researchandlibrary/2011/6611.pdf Shelf Number: 122031 Keywords: JudgesJudicial DiscretionSentencing Guidelines |
Author: Fischman, Joshua B. Title: Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines Summary: The United States Sentencing Guidelines were instituted to restrict judicial discretion in sentencing, in part to reduce unwarranted racial disparities. However, judicial discretion may also mitigate disparities that result from prosecutorial discretion or Guidelines factors that have disparate impact. To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges’ discretion to depart from the Guidelines. We find that racial disparities are either reduced or little changed when the Guidelines are made less binding. Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums. Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing. Details: Charlottesville, VA: University of Virginia School of Law, 2012. 39p. Source: Internet Resource: University of Virginia School of Law Public Law and Legal Theory Research Paper Series No. 2012-02: Accessed April 4, 2012 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636419 Year: 2012 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636419 Shelf Number: 124815 Keywords: Judicial DiscretionRacial DisparitiesSentencing Guidelines (U.S.) |
Author: Bushway, Shawn D. Title: Sentencing Guidelines and Judicial Discretion: Quasi-experimental Evidence from Human Calculation Errors Summary: There is a debate about whether advisory non-binding sentencing guidelines affect the sentences outcomes of individuals convicted in jurisdictions with this sentencing framework. Identifying the impact of sentencing guidelines is a difficult empirical problem because court actors may have preferences for sentencing severity that are correlated with the preferences that are outlined in the guidelines. But, in Maryland, ten percent of the recommended sentences computed in the guideline worksheets contain calculation errors. We use this unique source of quasi-experimental variation to quantify the extent to which sentencing guidelines influence policy outcomes. Among drug offenses, we find that the direct impact of the guidelines is roughly ½ the size of the overall correlation between recommendations and outcomes. For violent offenses, we find the same ½ discount for sentence recommendations that are higher than they should have been, but more responsiveness to recommendations that are too low. We find no evidence that the guidelines themselves directly affect discretion for property offenders, perhaps because judges generally have substantial experience with property cases and therefore do not rely on the errant information. Sentences are more sensitive to both accurate and inaccurate recommendations for crimes that occur less frequently and have more complicated sentencing. This suggests that when the court has more experience, the recommendations have less influence. More tentative findings suggest that, further down the decision chain, parole boards counteract the remaining influence of the guidelines. Details: Cambridge, MA: National Bureau of Economic Research, 2011. 36p. Source: Internet Resource: NBER Working Paper Series; Working Paper 16961: Accessed July 2, 2012 at: http://www.nber.org/papers/w16961 Year: 2011 Country: United States URL: http://www.nber.org/papers/w16961 Shelf Number: 125444 Keywords: Judicial DiscretionPunishmentSentencingSentencing Guidelines (U.S.) |
Author: Illinois. Supreme Court. Administrative Office of the Illinois Courts Title: Circuit Court of Cook County Pretrial Operational Review Summary: For decades, the highly publicized issue of jail over-crowding has plagued Cook County. Through the years, experts have examined Cook County's pretrial and bond court operations, studied crime statistical data, and recorded remedies, some of which resulted in operational, environmental, programmatic, and policy changes with varying effects. From the point of arrest through the pretrial and bond court process, there is a critical dilemma that persists: whether to allow the defendant to remain in the community and continue to work and attend school, or to detain the defendant and alleviate any risk of failing to appear or committing another crime while awaiting trial. Ultimately, judicial discretion determines such decisions based upon the facts presented to the judge during bond court. The Illinois Pretrial Services Act provides the legal framework for this process. In practice, it has become largely aspirational, rather than a model for everyday procedure. Under the Act, pretrial services would provide a pivotal function in collecting and verifying information to be used by the judge to determine bond and release conditions, and in providing post-release supervision as a means to respond to non-compliance with court conditions while awaiting trial. In 2013, Cook County pretrial services staff conducted 24,977 interviews/assessments and conducted 7,164 intakes on defendants ordered to pretrial supervision as reported through monthly statistical reports submitted to the Administrative Office. Unfortunately, however, the reliance upon the work of pretrial services is generally dismissed or minimized because of a lack of confidence in the credibility of the risk assessment and community living information. During this operational review, it was evident that much of the information obtained by pretrial services officers was not verified, so the response from stakeholders and judges was understandable. Though a series of technological, managerial, interpersonal, and operational factors were substantiated during the review process and described in this document, there is no single group, program or "fix" that accounts for the fracture of the process. Notwithstanding, while there was non-reliance upon the risk assessment and other information and a limited number of cases placed under pretrial supervision, this was juxtaposed by judges overwhelmingly voicing support for pretrial services personnel and the need for the program. Further, collection of statistical reports and other data has been cumbersome and inconsistent due to antiquated technology, unfamiliarity with the scope of data collected by respective stakeholder groups, absence of a coordinated data sharing process, and to a degree, data request protocols. Therefore, the data presented in this report is limited to that reported to the Administrative Office through the Adult Probation Department monthly statistical pretrial reports, data reported by the Cook County Circuit Court Clerk as contained in the Annual Statistical Reports to the Supreme Court, and publications prepared by Loyola University professor/researcher on the jail population for the Cook County Sheriff's Reentry Council Research Bulletin. Data requests submitted to the Circuit Clerk's office, Pretrial Services and the Sheriff's department have been submitted by the Administrative Office and are pending. While the impetus to conduct this review was a request by Chief Judge Evans for the funding of additional pretrial positions, such consideration must also be accompanied by systemic change. The two must not be separate. Unless there is a commitment amongst stakeholders to delve into these issues, reach consensus of resolutions and act to implement collaborative organizational and operational policies and practices in the pretrial and the bond court process, strictly adding positions will be minimally effective. While challenges exist, this is also a time of great opportunity. Many positive partnerships and activities are underway in Cook County that foster institutionalizing change and favorable outcomes. These include the Cook County Integrated Criminal Justice Information Systems Committee (CCICJIS) and the plan to move from a paper-based to electronic systems of data exchange and sharing among stakeholders; the joint meetings of Cook County elected officials that are fleshing out issues and solutions to the process; the planned evaluation of the bond court process that will provide baseline performance data in Central Bond Court (CBC); and the Administrative Office's initiative, in conjunction with a notable national research team, to validate a statewide pretrial risk assessment tool. Details: Chicago, IL: Illinois Supreme Court, Administrative Office of the Illinois Courts, 2014. 138p. Source: Internet Resource: Accessed March 18, 2015 at: https://www.state.il.us/court/SupremeCourt/Reports/Pretrial/Pretrial_Operational_Review_Report.pdf Year: 2014 Country: United States URL: https://www.state.il.us/court/SupremeCourt/Reports/Pretrial/Pretrial_Operational_Review_Report.pdf Shelf Number: 134952 Keywords: Bail BondsCourts (U.S.)Judicial DiscretionPretrial DetentionPretrial ReleasePretrial Services (Illinois)Risk Assessment |
Author: Kantorowicz, Elena Title: Cognitive Biases and Procedural Rules: Enhancing the Use of Alternative Sanctions Summary: The practice of short-term imprisonment has been long criticised due to its criminogenic effect and costs. To minimise its use, many countries introduced alternative sanctions such as community service or home confinement with electronic monitoring. Unfortunately, in practice those sanctions are often imposed on non-prison bound offenders, a phenomenon termed "the net-widening problem". Consequently, instead of reducing the prison population, the alternative sanctions substitute lighter punishments such as fine or conditional imprisonment. The discretion power whether to impose a prison sentence or its alternatives lies in the hands of the courts. Therefore, the way to enhance the use of alternative sanctions as a substitute to short-term imprisonment is to change the behaviour of judges. This paper adopts the unique approach of behavioural law and economics in order to discuss procedural rules that have the potential to achieve the above-mentioned goal. Each of the analysed procedural rules explains the cognitive biases, which judges are subject to when choosing between a prison sentence and an alternative punishment. Following that, this paper analyses how the suggested procedural rules overcome or use those biases in order to promote the use of alternative sanctions. Details: Rotterdam: Erasmus University Rotterdam , 2014. 22p. Source: Internet Resource: Rotterdam Institute of Law and Economics (RILE) Working Paper Series No. 2014/10 : Accessed April 6, 2015 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2531418 Year: 2014 Country: International URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2531418 Shelf Number: 135162 Keywords: Alternatives to IncarcerationCriminal LawJudgesJudicial DiscretionNet-WideningPunishment |
Author: Kleinberg, Jon Title: Human Decisions and Machine Predictions Summary: We examine how machine learning can be used to improve and understand human decision-making. In particular, we focus on a decision that has important policy consequences. Millions of times each year, judges must decide where defendants will await trial - at home or in jail. By law, this decision hinges on the judge's prediction of what the defendant would do if released. This is a promising machine learning application because it is a concrete prediction task for which there is a large volume of data available. Yet comparing the algorithm to the judge proves complicated. First, the data are themselves generated by prior judge decisions. We only observe crime outcomes for released defendants, not for those judges detained. This makes it hard to evaluate counterfactual decision rules based on algorithmic predictions. Second, judges may have a broader set of preferences than the single variable that the algorithm focuses on; for instance, judges may care about racial inequities or about specific crimes (such as violent crimes) rather than just overall crime risk. We deal with these problems using different econometric strategies, such as quasi-random assignment of cases to judges. Even accounting for these concerns, our results suggest potentially large welfare gains: a policy simulation shows crime can be reduced by up to 24.8% with no change in jailing rates, or jail populations can be reduced by 42.0% with no increase in crime rates. Moreover, we see reductions in all categories of crime, including violent ones. Importantly, such gains can be had while also significantly reducing the percentage of African-Americans and Hispanics in jail. We find similar results in a national dataset as well. In addition, by focusing the algorithm on predicting judges' decisions, rather than defendant behavior, we gain some insight into decision-making: a key problem appears to be that judges to respond to 'noise' as if it were signal. These results suggest that while machine learning can be valuable, realizing this value requires integrating these tools into an economic framework: being clear about the link between predictions and decisions; specifying the scope of payoff functions; and constructing unbiased decision counterfactuals. Details: Cambridge, MA: National Bureau of Economic Research, 2017. 76p. Source: Internet Resource: NBER Working Paper no. 23180: Accessed February 20, 2017 at: http://www.nber.org/papers/w23180.pdf Year: 2017 Country: United States URL: http://www.nber.org/papers/w23180.pdf Shelf Number: 146686 Keywords: Decision-MakingJudgesJudicial Decision-MakingJudicial DiscretionPretrial ReleaseRisk Assessment |
Author: Coady, Kyle Nicholas Patrick Title: Prosecutor Selected Youth Diversion: Identifying the Circumstances and Conceptualizing the Cases Summary: Crown selected youth diversion has received little academic attention in Canada. As a process that channels offenders out of the formal legal system, diversion purports to achieve contradictory self-serving system and offender-based goals. Using 50 randomly selected prosecution files - half of which the Crown diverted and half of which the Crown prosecuted - a mixed method investigation of diversion assesses cases through quantitative content analysis and grounded theory method. Based on the quantitative analysis, it is argued that there is an emerging patterned nature of Crown selected diversion that is not completely benign. This patterned nature of diversion unearths a distinctive discourse of diversion/nondiversion. Qualitatively, it is argued that the cases are organized around three temporal moments that create an area for distinctions to be made in terms of threat, responsibility, (in)tolerableness and recourse. Seemingly, there is a persistent paradoxical existence of the diversion process that emerges from the case files. Details: Ottawa: University of Ottawa, Department of Criminology, 2012. 195p. Source: Internet Resource: Thesis: Accessed June 6, 2018 at: https://ruor.uottawa.ca/bitstream/10393/23217/3/Coady_Kyle_Nicholas_Patrick_2012_thesis.pdf Year: 2012 Country: Canada URL: https://ruor.uottawa.ca/bitstream/10393/23217/3/Coady_Kyle_Nicholas_Patrick_2012_thesis.pdf Shelf Number: 150486 Keywords: Diversion Judicial DiscretionJuvenile Diversion Programs Prosecutors |
Author: Sloan, Carly Will Title: The Effect of Risk Assessment Scores on Judicial Behavior and Defendant Outcomes Summary: The use of risk assessment scores as a means of decreasing pretrial detention for low-risk, primarily poor defendants is increasing rapidly across the United States. Despite this, there is little evidence on how risk assessment scores alter criminal outcomes. Using administrative data from a large county in Texas, we estimate the effect of a risk assessment score policy on judge bond decisions, defendant pretrial detention, and pretrial recidivism. We identify effects by exploiting a large, sudden policy change using a regression discontinuity design. This approach effectively compares defendants booked just before and after the policy change. Results show that adopting a risk assessment score leads to increased release on non-financial bond and decreased pretrial detention. These results appear to be driven by poor defendants. We also find risk assessment scores did not increase violent pretrial recidivism, however there is some suggestive evidence of small increases in non-violent pretrial recidivism. Details: Bonn, Germany: Institute of Labor Economics, 2018. 54p. Source: Internet Resource: Accessed December 18, 2018 at: https://ideas.repec.org/p/iza/izadps/dp11948.html Year: 2018 Country: United States URL: http://ftp.iza.org/dp11948.pdf Shelf Number: 154069 Keywords: BailBondDefendantsJudicial DiscretionNon-Financial BondPretrial DetentionRecidivismRisk AssessmentTexas |
Author: Skeem, Jennifer L. Title: Impact of Risk Assessment on Judges' Fairness in Sentencing Relatively Poor Defendants Summary: The increasing use of risk assessment algorithms in the criminal justice system has generated enormous controversy. Advocates emphasize that algorithms are more transparent, consistent, and accurate in predicting re-offending than judges' unaided intuition, while skeptics worry that algorithms will increase racial and socioeconomic disparities in incarceration. Ultimately, however, judges make decisions - not algorithms. In the present study, real judges (n=340) with criminal sentencing experience participated in a controlled experiment to test whether the provision of risk assessment information interacts with a defendant's socioeconomic class to influence sentencing decisions. Results revealed that risk assessment information reduced the likelihood of incarceration for relatively affluent defendants, but the same risk assessment information increased the likelihood of incarceration for relatively poor defendants. This finding held after controlling for the sex, race, political orientation, and jurisdiction of the judge. It appears that under some circumstances, risk assessment information can increase sentencing disparities. Details: Richmond: University of Virginia School of Law, 2019. 17p. Source: Internet Resource: Virginia Public Law and Legal Theory Research Paper No. 2019-02: Accessed April 18, 2019 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3316266 Year: 2019 Country: United States URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3316266 Shelf Number: 155461 Keywords: Judicial DiscretionRisk AssessmentSentencing |