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Friday, January 21, 2005

Opening Remarks from Sentencing: What's at Stake for the States?

Judge Gerard Lynch, Southern District of New York, talked about how the evolution of sentencing law. He said that while historically sentencing was left to the discretion of judges, over time the public sought greater security and less mercy, and perhaps even less justice. It changed from a legal regime that was literally lawless in the 1970s, to one that had a rich body of substantive and procedural sentencing law. The academy has been slow to respond to these changes.

The federal system accounts for about 7% of the prison system of the U.S. -- not big compared to California or Texas. Its especial concern is with white-collar, narcotic and immigration crime, so it plays small part in the public safety concerns that drove the sentencing changes of the 1970s. The states, in their roles as laboratories of change, pioneered sentencing law, as with California's three-strikes. Now they move in the other direction, away from mandatory minimums, in order to relieve pressure on state budgets.

Now we can survey what those laboratories have come up with -- the cure for cancer, Viagra or Frankenstein's monster?

He introduced the moderators: for Panel 1 (prosecutorial discretion and its challenges), Professor Paul Shechtman of Columbia Law; Panel 2 (considerations at sentencing -- what factors are relevant and who should decide?), Judge John S. Martin Jr. of Debevoise & Plimpton LLP, and jokingly described in his work under Thurgood Marshall's DOJ as having lost more cases than any other federal solicitor in history.

The keynote address will be given by Judge William H. Pryor, Jr., Bush's recess appointment to the Eleventh Circuit Court of Appeals, claimed to be here in his capacity as a determined advocate of sentencing reform as attorney general of Alabama.

Tomorrow, Panel 3 (theories and policies underlying guideline systems) will be moderated by Prof. Kate Stith, Yale Law School.

Panel 4 (the institutional concerns inherent in sentencing regimes) will be moderated by my criminal law professor, James S. Liebman.

And the clicketyclack of my typing just annoyed the woman sitting next to me into moving away.


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