Research on Sentencing The Search for Reform, Volume II (1983) / Chapter Skim
Currently Skimming:
4 EMPIRICALLY BASED SENTENCING GUIDELINES AND ETHICAL CONSIDERATIONS
4 EMPIRICALLY BASED SENTENCING GUIDELINES AND ETHICAL CONSIDERATIONS
Pages 184-193
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 184... ...
The strong basic philosophy we pursue is to follow an empirically based mode as far as we can, not because we are particularly attracted to the conservatism inherent in this line (whatever was done in the past must have been just, even if we cannot explain it) , but because we find that surprisingly quickly our thoughts lead us to require new ethical judgments.
|
From page 185... ...
That disturbance may involve factors affecting particular judges on particular days, or it may involve the factors peculiar to individual cases that lead judges to sentence differently. There is an apparent tension here as to whether it is desirable that equation (1)
|
From page 186... ...
What really matters are the standard errors of the estimated parameters.2 If the parameters and thus past average behavior can be reliably estimated but there is considerable variation around that behavior, it may appear desirable to reduce that variation. This is the basic rationale for empirically derived guidelines.
|
From page 187... ...
where I is a single ethically irrelevant variable that, for purposes of focusing discussion, we will take to be a dichotomous variable indicating race (with I = 0 for blacks and I = 1 for whites)
|
From page 188... ...
The justification for empirically based genes ides In the view that the collective decisions of the past represent, on average, an ethically desirable standard. In the present case, however, that is manifestly untrue; such decisions, by assumption, were contaminated by the use of an ethically irrelevant criterion, race, to affect sentence length.
|
From page 189... ...
This is an essentially ethical choice that cannot be made simply by referring to the average of past experience.4 = However I' is chosen, note that the choice of k as in the simplest case will make judges explicitly justify departures that cannot be accounted for by random variation in more than a corresponding fraction of the cases. This will force any judges who still use race in an important way to make explicit justification.
|
From page 190... ...
, 1) is some function, and we continue with a single dichotomous ethically irrelevant variable, I, for the moment (and continue the race example to fix ideas)
|
From page 191... ...
These choices, necessarily ethical, determine the weights to be used in averaging the previous average sentences of the four groups in guidelines to be used for all future offenders. Note, however, that there are only two choices to be made, not more than two, despite the fact that four groups are to be averaged.
|
From page 192... ...
We prefer guidelines that arise from ethical principles, deducing the shape of the guidelines from those principles, as was done in Minnesota. Second, taking empirically based guidelines on their own terms leads us to require ethical judgments: For example, shall we treat blacks as we used to treat whites, or conversely, or use an average?
|
From page 193... ...
. To do so is to depart fairly sharply from the notion that past judgments are ethically acceptable, however -- the view that lies behind empirically based guidelines.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.