Spring 2021 • Course
Mass Incarceration and Sentencing Law
Exam Type: No Exam
This course will first put 20th century sentencing law in sociological and historical context. It will examine the history, philosophy, and administration of the criminal sentencing process, the causes of growth in the US penal population, the historical roots of that grown from the mid 20th century to the present, and the impact of those policies on communities of color and the crime rate. We will then examine more closely the legal framework that enabled those policies, including the war on drugs, emphasis on retribution over rehabilitation, the changes in sentencing law and the structure of sentencing decisionmaking. Particular attention will be devoted to substantive sentencing standards (the insights of neuroscience, evidence based lessons from diversion programs) in addition to the procedures governing those decisions. The course will explore different kinds of sentencing regimes-state guideline systems, international models on which sentencing standards have evolved from common law decision making or judge-imposed guidelines (Australia, Israel, England), in addition to the federal sentencing guidelines. We will consider the interplay between principles of proportionality, severity, and parsimony on sentencing law.
This course will be divided into two parts: the first part of the term will involve the substantive law of sentencing, and the sociological and historical context in which it evolved as described in the original course description. But the second part of the term will be somewhat unusual. I will invite judges (federal and state), prosecutors, defense lawyers to join the class in addressing particular sentencing issues, with discussions centered around hypothetical cases. All the participants will sentence; they will review the cases, determine the sentences, and discuss them at the class sessions. The issues will be cases involving addiction and drug offenses, mental health, the neuroscience of childhood adversity, juvenile offenders, sex offenders, and issues of race and gender. The idea is not only to look at sentencing at the meta level, but also at the level of the concrete case, which may challenge the generalizations of the sentencing law.