Wednesday, August 3, 2011
David Patton (University of Alabama School of Law) has posted Guns, Crime Control, and a Systemic Approach to Federal Sentencing (Cardozo Law Review, Vol. 32, 2011) on SSRN. Here is the abstract:
Recent scholarship about the role of sentencing reform in reducing high levels of incarceration has focused on evidence-based, offender-specific solutions, such as how to better assess offenders’ risk of recidivism and their amenability to diversionary programs. This Article proposes a new, systemic approach. In particular, it suggests that in cases where the primary rationale for steep sentences is crime reduction, as opposed to retributive notions of harm and blameworthiness, judges ought to engage in an evidence-based examination of how the government is making “use” of the sentences it seeks in its law enforcement efforts. And where the government’s efforts fall short, so too should the sentences. The proposal would not only result in more rational and just sentences, it also has the potential to enhance public safety.
Although law enforcement and prosecutorial strategy have conventionally been viewed as the exclusive territory of the Executive Branch, this Article contends that judges are in fact appropriate and competent institutional actors to examine them. This Article explores these issues in the context of the federal government’s most formal and direct intervention into the prosecution of street crime, Projects “Triggerlock” and “Safe Neighborhoods,” which, in the name of crime control, have resulted in a ten-fold increase in the number of federal “felon-in-possession” prisoners over the past twenty years.