Publication Title
Federal Sentencing Reporter
Volume
31
Page
279
Year
2019
Abstract
The trial penalty -- the threat of a substantially more severe conviction or longer sentence after trial than the one available upon a guilty plea -- is a key driver of mass incarceration. It undergirds not just the number of people behind bars, but the long sentences so many of them serve. One path to ameliorating the impact of the trial penalty is through a systematic judicial “second look” procedure, whereby judges revisit the propriety of a long sentence after the defendant has served a substantial portion of it. Taking the proposed “second look” provision of the revised Model Penal Code (MPC) on sentencing as its template, this essay explores what a systematic judicial “second look” at long federal sentences could look like. In also examines a leading objection to adopting such a procedure: that it would be economically prohibitive and would over-burden the federal court system. Highlighting that system’s experience implementing retroactive sentencing measures like Amendment 782, as well as the work of stakeholders in the implementation of President Obama’s clemency program, the essay concludes that a judicial “second look” is one the federal court system has both the resources and demonstrated capacity to implement systematically.
Recommended Citation
JaneAnne Murray, Ameliorating the Federal Trial Penalty through a Systematic Judicial “Second Look” Procedure, 31 Fed. Sentencing R. 279 (2019), available at https://scholarship.law.umn.edu/faculty_articles/648.
Rights
http://rightsstatements.org/vocab/InC/1.0/
