Paper
MODERN SENTENCING MITIGATION
Published 2022 · John B. Meixner, Eyal Aharoni, R. Barkow
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Abstract
Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively little scholarship in criminal law focuses on mitigation at sentencing. Fundamental questions have not been explored: Do the Sentencing Guidelines—which largely limit the relevance of mitigating evidence—make mitigation unimportant? Does the extent or type of mitigation offered have any relationship with the sentence imposed? This Article fills that gap by examining a previously unexplored data set: sentencing memoranda filed by defense attorneys in federal felony cases. By systematically parsing categories of mitigating evidence and quantitatively coding the evidence, I show that mitigation is a central predictor of sentencing outcomes and that judges approach mitigation in a modern way: rather than adhering to the strict, offense-centric structure that has dominated sentencing since the advent of the Sentencing Guidelines in the 1980s, judges individualize sentences in ways that consider the personal characteristics of each defendant, beyond what the Guidelines anticipate. And particular types of mitigation, such as science-based arguments about mental and physical health, appear especially persuasive. The results have significant implications for criminal justice policy: while my data show that mitigation is critical to judges’ sentencing decisions, both the Guidelines and procedural rules minimize mitigation, failing to encourage both defense attorneys and prosecutors to investigate and consider it. I suggest reforms to make sentencing more equitable, such as requiring the investigation and presentation of mitigation to constitute effective assistance of counsel, easing the barriers to obtaining relevant information N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W 1396 on mental and physical health mitigation, and encouraging prosecutors to consider mitigation in charging decisions and sentencing recommendations. AUTHOR—Assistant United States Attorney, Appellate Division, Eastern District of Michigan; Assistant Professor of Law, University of Georgia School of Law (beginning Fall 2022); J.D., Ph.D., Northwestern University; B.S., University of Michigan. The views expressed in this Article are the personal views of the author and do not represent the views of the Department of Justice. I am grateful to Eyal Aharoni, Rachel E. Barkow, Shima Baradaran Baughman, Jeffery Bellin, William Berry, Douglass Berman, Eve Brensike Primus, Jacob Bronsther, Russel D. Covey, Nora V. Demleitner, Deborah Denno, Shari Diamond, Raff Donnelson, Dov Fox, Brandon Garrett, Miriam Gohara, Catherine M. Grosso, Eve Hanan, Jay Koehler, Adam Kolber, Lee Kovarsky, Wayne Logan, James Macleod, Barb McQuade, Jane Moriarty, Justin Murray, Barbara O’Brien, William Ortman, Mark Osler, Dorothy Roberts, Jenny Roberts, Sarath Sanga, Francis Shen, Mark Spottswood, Carol Steiker, Lauren Sudeall, Chris Sundby, Michael Tonry, and Ron Wright, as well as participants of the Markelloquium Criminal Law Theory Colloquium, the American Psychology–Law Society works-in-progress workshop, the University of Michigan Junior Scholars Conference, and the Southern Society for Philosophy and Psychology conference, for their helpful comments and feedback on this project. I also received helpful feedback from the faculties at Albany Law School, the University of Detroit Mercy School of Law, the University of Florida Levin College of Law, the University of Georgia School of Law, Mercer University School of Law, the University of Michigan Law School, Michigan State University College of Law, the University of Missouri School of Law, Northwestern Pritzker School of Law, Penn State Dickinson Law, the University of Richmond School of Law, Temple University Beasley School of Law, Texas A&M University School of Law, and the University of Missouri–Kansas City School of Law. I am also particularly grateful for detailed feedback from two anonymous peer reviewers from the Northwestern University Law Review’s selection process. Last, I owe significant thanks to the editors of the Northwestern University Law Review, whose diligent work significantly improved the Article. All errors and omissions are my own. 116:1395 (2022) Modern Sentencing Mitigation 1397 INTRODUCTION .......................................................................................................... 1397 I. MITIGATION’S IMPORTANCE IN MODERN SENTENCING ....................................... 1402 A. The Critical Role of Sentencing ................................................................ 1402 B. The Framework of Sentencing and Mitigation .......................................... 1407 II. SURVEY AND EXPERIMENTAL DATA ON MITIGATION .......................................... 1418 A. Judicial Surveys ........................................................................................ 1418 B. Experimental Studies on Mitigation .......................................................... 1421 III. METHOD ............................................................................................................ 1425 A. Identifying Categories of Mitigation ......................................................... 1425 B. Identification and Selection of Cases ........................................................ 1435 C. Coding Methods and Intercoder Reliability Check ................................... 1437 IV. HYPOTHESES...................................................................................................... 1438 V. RESULTS ............................................................................................................ 1440 A. Characteristics of the Cases and Sentencing Memoranda ........................ 1440 B. Predictive Value of the Sentencing Memoranda ....................................... 1443 VI. DISCUSSION AND IMPLICATIONS FOR LEGAL REFORM ......................................... 1453 A. Interpretation of Results ........................................................................... 1453 B. Implications for Legal Reform .................................................................. 1463 CONCLUSION ............................................................................................................. 1476 APPENDIX: ADDITIONAL SUPPORTING DATA .............................................................. 1477
Mitigation is a central predictor of sentencing outcomes, and reforms to encourage defense attorneys and prosecutors to investigate and consider mitigation could make sentencing more equitable.
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