Lynn Branham - The Law and Policy of Sentencing and Corrections in a Nutshell (Nutshells)

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JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

THE LAW AND POLICY OF SENTENCING AND CORRECTIONS

IN A NUTSHELL

TENTH EDITION

LYNN S. BRANHAM

Distinguished Visiting Scholar
Saint Louis University School of Law

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

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ISBN: 978-1-68328-334-8

Dedicated

to

Judge Harold Baker,

With gratitude

For paving the way many years ago for

My lifes work

PREFACE

This book is designed to provide students with a general overview of the law and policy of sentencing and corrections. The first nine chapters of the book cover sentencing-related topics, including the purposes of criminal sanctions, restorative justice, guilty pleas and plea bargaining, the rights defendants have during the sentencing process, sentencing factors, different ways to structure sentencing systems, community sanctions, the death penalty, Eighth Amendment constraints in noncapital cases, parole release, probation and parole revocation, and the enmeshed penalties (often referred to as collateral consequences) that attend a criminal conviction. Chapters 10 through 18 focus on the constitutional rights people have while they are incarcerated. The final two chapters of the book discuss the mechanics of litigating inmates 1983 suits and the remedies available when their constitutional rights have been violated.

The book is not confined to a discussion of current law and policy but also looks towards the future. The book, for example, discusses some key proposals to make sentencing and corrections systems more cost-effective, equitable, and just and to integrate processes into those systems to enable people to understand the harm their crimes have caused and take steps to remedy it. Some of these proposals include the adoption of comprehensive community-corrections acts, the implementation of capacity-based sentencing guidelines that provide for the imposition of community-based sentences on most people convicted of nonviolent crimes, and the incorporation of restorative-justice mechanisms into jurisdictions sentencing and corrections systems.

I have attempted to write a Nutshell geared to the needs of students who must assimilate an extensive amount of information on sentencing and correctional law and policy. Because many of these students will be taught in courses using the casebook I have authored, The Law and Policy of Sentencing and Corrections (West 2013), this Nutshell largely tracks the format of that casebook, though one chapter is now divided into two in this Nutshell. Readers of this Nutshell should, of course, be mindful that the law in the areas of sentencing and corrections is ever changing. I encourage you to monitor, for example, pertinent decisions rendered by the Supreme Court after the date of this books publication.

I am grateful for this opportunity to share insights about sentencing and correctional law and policy with the readers of this book. And I remain thankful for the unfailing commitment of those who work tirelessly to improve the nations sentencing and corrections systems and to effectuate what can sometimes seem the elusive goals of justice, healing, reconciliation, and mercy.

Lynn S. Branham

December 2016

OUTLINE

THE LAW AND POLICY
OF SENTENCING

• An Emerging New Paradigm:
  Restorative Justice

B. Limiting the Use of Incarceration: Proposals
for Reform

Chapter 2. Guilty Pleas and Plea
Bargaining

A. The Due-Process Requirement of an
Intelligent and Voluntary Guilty Plea

Voluntary Guilty Pleas and the
Factual Basis for a Plea

b. Right to the Effective Assistance
of Counsel

The Rights to Have Access to, and to
Rebut, the Presentence-Investigation
Report

The Right to a Statement of Reasons for
the Sentence Imposed

b. Distinguishing Aggravating Factors
and Elements of a Crime

Chapter 4. Sentencing Statutes and
Guidelines

Determinate-Discretionary
Sentencing

Other Variations in the Structuring
of Sentencing Guidelines

Home Confinement and Electronic
Monitoring

Restitution, Fees, and Denial of
Government Benefits

B. Comprehensive and Integrated Sentencing
and Corrections Systems

Problem-Solving and Restorative
Courts

B. Racial Disparity in the Imposition of the
Death Penalty

C. Vague and Mandatory Death-Penalty
Statutes

D. The Right to Present Mitigating Evidence
in Capital Cases

A. Disproportionality Claims: Challenges
Regarding the Length or Amount of a
Criminal Sanction

Categorical Bans on Certain
Sentences

The Right to Individualized
Sentencing

B. Challenges Regarding the Nature of a
Criminal Sanction

Chapter 8. Parole Release and Probation
and Parole Revocation

The Fifth Amendment Privilege
Against Self-Incrimination

b. Fourth Amendment Exclusionary
Rule

B. Parole Release and Special Release
Mechanisms

A. The Reintegration of Released Prisoners
into Society: Practical Obstacles

B. The Reintegration of Released Prisoners
into Society: Legal Obstacles

Restrictions on Government
Benefits

Restrictions on Drivers Licenses and
the Possession of Firearms

a. Registration and Community
Notification Laws

c. Residency and Other
Restrictions

C. Restoration of Rights and Other Steps to
Limit or Eliminate Enmeshed Penalties

Expungement and Sealing of
Criminal Records

Limits on the Denial of Employment
to People with Criminal Convictions