Introducing the "Heartland Departure"

By Lamparello, Adam | Harvard Journal of Law & Public Policy, Spring 2004 | Go to article overview

Introducing the "Heartland Departure"


Lamparello, Adam, Harvard Journal of Law & Public Policy


I.   FEDERAL SENTENCING PRIOR TO THE FEDERAL
     SENTENCING GUIDELINES
II.  THE CREATION AND IMPLEMENTATION OF THE
     FEDERAL SENTENCING GUIDELINES
A.   A Brief Overview of the Federal Sentencing
     Guidelines
B.   The Guidelines" "Heartland"--Simply the
     Mathematical Averaging of Purposeless,
     Unprincipled Pre-Guidelines Jurisprudence
C.   The Commission's Restrictions on Judicial
     Departures--Insurance Against the Creation
     of a Purposeful Heartland
III. THE FEDERAL JUDICIARY'S RESPONSE TO AN
     UNPRINCIPLED HEARTLAND AND OVERLY
     RESTRICTIVE DEPARTURE PARADIGM
A.   "Hidden Departures": Driving the Sentencing
     Discourse Underground
B.   "Overt Departures": Creating Substantive
     Disparities in Atypical Cases
IV.  INTRODUCING THE "HEARTLAND
     DEPARTURE".
A.   Reviewing the Problem--Competing Objectives in
     Sentencing Policy
B.   An Overview of the Proposed Solution--The
     "Heartland Departure "
C.   The "Heartland Departure" Will Enable
     the Evolution of a Principled Heartland
     Through Lawmaking by Trial and Appellate
     Courts as Well as the Sentencing Commission
     1. Trial Court Lawmaking
     2. Appellate Court Lawmaking
     3. Commission Lawmaking
D.   Suggested Policy Statements Regarding the
     "Heartland Departure".
E.   Possible Implementation of the "Heartland
     Departure" in Light of the Hatch-Sensenbrenner
     Amendment to the PROTECT Act
F.   Lessons from the Minnesota Sentencing
     Guidelines Regarding the Development of a
     Purposeful, Principled Sentencing
     Jurisprudence
V.   CONCLUSION

Under the Federal Sentencing Guidelines (the "Guidelines"), sentencing decisions have often been comprised of "more complication of detail than richness of concept." (1) This Article proposes one means--the "heartland departure"--by which federal sentencing procedure may be able to gain the conceptual depth and purpose it currently lacks.

Prior to the advent of the Guidelines, sentencing decisions were primarily the product of unfettered judicial discretion; no rules, principles, precedent, or purposes guided or controlled district court judges in their determination of particular sentences to impose. The exercise of this discretion resulted in unjustifiable disparities in sentencing among similarly-situated defendants. As such, pre-Guidelines jurisprudence could be characterized as "lawless" in that sentences were primarily the product of individual judges' subjective predilections. Furthermore, in the absence of meaningful appellate review of such sentencing determinations, district court judges rarely, if ever, wrote reasoned sentencing decisions justifying the imposition of a given sentence in light of the purposes of criminal punishment. As such, the system was also purposeless, lacking the essential foundations for a doctrinally-rich common law of sentencing.

While the Guidelines were designed to remedy these problems by reducing judicial discretion and creating a detailed grid of sentencing norms, their method of adoption ensured that federal sentencing practice would remain purposeless. In short, the Sentencing Commission created a grid of possible sentencing ranges and specified the conditions under which a defendant could fall within each category, based on offense and offender characteristics deemed apposite to pre-Guidelines sentencing determinations. The grid, comprised of nothing more than the mathematical average of sentences imposed by judges for particular offenses in pre-Guidelines jurisprudence, formed a "heartland" to govern all typical cases (i.e., cases that presented sentencing factors already considered by the Commission when adopting a given sentencing range). The "heartland" was not the product of substantive discussions in which the principles, purposes, and justifications of criminal punishment formed the basis for adoption of a particular sentencing norm for a particular offense.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Introducing the "Heartland Departure"
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.