A new (sub)space for more sentencing commentary from more voices

I am pleased to highlight today a new place and spece for sentencing discussions, Sentencing Matters Substack.  In this first posting at that location, I provide a bit of the origin story and vision for this new endeavor:

This is a new substack designed to be a new space for commentary about sentencing matters by a set of sentencing-interested academics.

I already have a blog, Sentencing Law and Policy, where I have been writing about sentencing matters for over two decades(!).  But in that space, I do a lot of posts that I might label “reporting” focused around sentencing news and cases and scholarship….  I feel I rarely make as much time as I would like for more and longer commentary posts at SL&P.  And, upon seeing a number of friends and colleagues use Substack for effective original commentary, I started to get a hankering for trying out this medium as one new way to prompt myself to make more time for more longer-form sentencing commentary.

As this idea germinated, a new catalyst for growth emerged: Jonathan Wroblewski, who had served for many years as the Director of the Office of Policy and Legislation in the Criminal Division of the US Department of Justice and also as DOJ’s ex officio respresententative on the US Sentencing Commission, told me he was working on a series of commentary pieces that he was hoping to have posted on Sentencing Law and Policy.  I said I would be honored to place these pieces on SL&P, but I added that I would be even more excited to start a sentencing Substack as a place for both of us (and perhaps others) to share all sorts of sentencing talk about all sorts of sentencing matters.

In addition, my long-time co-managing editor with the Federal Sentencing Reporter, Steven Chanenson, agreed to be another stacker(?) on this new Substack.  Among an array of virtues and contributions, Steve suggested the titled title “Sentencing Matters” for this effort and also got a blessing to use that great title from another legendary sentencing academic who came up with it first.

I am hopeful, though not at all confident, that this new Substack will compliment and enhance my work on this blog.  Indeed, I am already excited to be able to flag Jonahan Wroblewski’s first Sentencing Matters Substack posting here, titled “Why I Still Believe in Sentencing Guidelines (Just Not the Current Federal Guidelines).”  Here is a closing section of his posting, which should be read in full:

The insights of these scholars [like Professors Daniel Kahneman and Barry Ruback] also reveal that while a structured and actuarial model of decision making will outperform most humans on consistency and along other dimensions, greater detail in the decision-making structure, like the federal Commission decided to incorporate in drafting the federal sentencing guidelines, does not necessarily bring with it greater validity across dimensions.  In fact, much research suggests that attempts at greater precision will often lead to lower validity.  This is the experience of the federal guidelines.  The guidelines were drafted to dictate precise sentencing outcomes, and many judges recoiled.  But more than that, the attempts at precision ran into psychological and constitutional limitations.  Especially now, 20 years after the Booker decision, it is time to revisit the guideline structure created by the first Commission.

The guidelines are a case study in a failed attempt to use brute force – and too much precision – to get to particular algorithmic outcomes.  Of course, there is another way to bring consistency and sound policy to sentencing decisions.  As Richard Thaler and Cass Sunstein suggested in their best-selling book, Nudge, which was also drawn from Kahneman’s work, policy makers can create a less dictatorial choice architecture to try to move decision makers, like sentencing judges, in a particular direction.  With psychological scholarship in mind, it is not difficult to imagine a simpler federal sentencing decision tree, one ironically with even greater richness than the current federal guidelines and yet simultaneously more understandable to all, including those being sentenced, the victims of crime, and the general public.  One need only look to guidelines system of many states and certain foreign countries that have learned from the U.S. federal system what not to do.  Most everyone familiar with the federal guidelines can agree upon this: they are not nuanced; they are not a nudge; and they are not a model.