Minnesota Law Review

Notice-and-Comment Sentencing

As the real policymakers of criminal justice, prosecutors and other criminal justice professionals resolve many of the complex debates about justice in sentencing by deciding what charges to file, what plea bargains to strike, and what sentences to recommend. But they make those value-laden decisions out of sight, with little public input into or oversight of the tradeoffs involved. This gap between prosecutors as agents and the public as their principal leaves prosecutors free to pursue their own self-interests, risking arbitrary outcomes, endangering the legitimacy of criminal justice, and undercutting public confidence and respect. Administrative law has long grappled with similar issues, seeking to constrain and legitimate agency decisions made in the public interest by soliciting and responding to public input. But criminal justice has no comparable mechanisms for public participation.

We propose a system of “notice-and-comment sentencing,” modeled loosely on notice-and-comment rulemaking, to review the range of decisions that cash out at sentencing. That approach would provide the public with advance notice, solicit a broad range of views, require responses to significant criticisms, and elicit statements of reasons to ground appellate oversight. Notice and comment would operate at the wholesale level on prosecutors’ charging and plea-bargaining policies, as well as sentencing commissions’ guidelines and possibly police enforcement policies. It might also operate at the retail level within categories of especially significant crimes, soliciting factual information and possibly policy views about individual cases and creating feedback loops on the application of wholesale policies in concrete contexts. Notice-and-comment sentencing would not only better constrain agents and blend expert and lay perspectives, but also enhance legitimacy and increase public confidence in seeing justice done.

 

:: View PDF

News & Events

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

  • Vol. 97 Lead Piece Cited in Al Jazeera Opinion Piece

    A recent Al Jazeera opinion piece that criticizes the Supreme Court’s Daimler decision cites to Volume 97′s lead piece, How Business Fares in the Supreme Court. You can read the Al Jazeera piece here. Share this: on Twitter on Facebook on Google+

  • Masthead for Volume 99 Board

    The masthead for the Board of Volume 99 of the Minnesota Law Review is now available. You can view the masthead here. Share this: on Twitter on Facebook on Google+

  • Above the Law Post Highlights MLR‘s Jump in Journal Rankings

    A recent post on Above the Law highlights the fact that the Minnesota Law Review was ranked 11th in the most recent 2013 edition of the Washington & Lee Law Review Rankings. You can read the post here. Share this: on Twitter on Facebook on Google+

Newsletter

cforms contact form by delicious:days