Sentencing and Corrections

9 February

• Sentencing individuals is different from constructing a system for sentencing. We want a system that allows the imposition of proper sentencing. But trying to decide what the purpose of sentencing overall is differs from trying to pass a particular sentence.

  Rules that produce regularity in the sentences imposed are not necessarily principled.

• Retribution, incapacitation, rehabilitation, deterrence: these are not objectives; rather, they are justifications for the things we are doing to people. If you have to say what the objective of a sentence is, you have to be able to say what you're afraid will happen if the punishment is not imposed. If you're not afraid of anything, then all you've got to go on is just desserts.
• Think about the justifications for penal sanctions: some are based on positive consequences, some are non-consequential.
• Why is the history of sentencing so fad-ish?
• So guidelines seem to produce more regularity in sentencing, but that's only because we see regularity when we compare sentences imposed under guidelines with prior sentences: the guidelines are the mechanism that determine whether two crimes were similar.
• If you want to change the way a system works, test case litigation might not be a very effective strategy (this from a discussion on Gallion).
• If you can't trust what decision-makers cite as the reasons for their decisions, you are left to theorize about what they think they are doing. And when you talk to them, you get their biased explanation, and if their bias confirms your own, you probably think their sentences are better.
• What sort of advocacy is likely to be effective? What are the state's objectives, if you are a defense attorney? What is the judge doing? Those are ingredients in getting a good result for your client.
• The judge wants to be heroic, or at least worthy of him/herself. So you need to figure out what that ight be, and then you need to figure out how to present it.
• Advocacy is about story-telling; it is good to get your story in front of the sentencing decision-maker early on (i.e., a sentencing memorandum).