CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, November 15, 2023

Bertenthal & Lynch on Criminal History and the FSG

Alyse Bertenthal and Mona Lynch (Wake Forest University - School of Law and University of California, Irvine - Department of Criminology, Law and Society) have posted The calculus of the record: Criminal history in the making of US Federal Sentencing Guidelines (Forthcoming; Theoretical Criminology, 2016, Vol. 20(2) 145-164) on SSRN. Here is the abstract:
The Federal Sentencing Guidelines, developed by the United States Sentencing Commission in the I 980s, appear to exemplify the turn from individualization toward aggregated, rationalized risk management that ostensibly became hegemonic in the late 20th century. In this article, we challenge that presumption by building on Harcourt's (2007) argument that penal actuarialism emerged as part of the individualization project rather than as a repudiation of it. We trace how 'criminal history' came to be the primary mode for capturing defendant characteristics in the Guidelines formula, and delineate how time became the unit of quantification to transform criminal history into ordinal measures of current culpability. We draw three lessons from this case study: about the durability of old practices and logics; about how the individual penal subject lives on in sentencing regimes like the federal Guidelines system; and about the metrics of time and history as ways of knowing the juridical subject.

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