G. A. Cohen's Conception of Law: A Critique*

This note will challenge G. A. Cohen's view of the interaction between legal systems and economic structures; such interaction raises the so-called problem of legality, which Cohen sets out to solve in the eighth chapter of Karl Marx's Theory of History (Cohen 1978, 216–47). In the course of this note, we shall interrogate the presumed rigor of Cohen's theory of base/superstructure relations, to which his understanding of law is central. His approach will not be simply destroyed, but will be resituated in a network of problems that can highlight a certain fissure between his aspirations and his performance.     

GENDER AND IMPRISONMENT DECISIONS

Guidelines sentencing data from Pennsylvania for the years 1985–1987 are analyzed to assess the influence of gender on judges' imprisonment decisions. These data provide detailed information on offense severity and prior record, permit statistical controls for other variables thought to affect imprisonment decisions, cover a fairly comprehensive list of common-law offenses (with adequate sample size), and contain judges' dispositional-departure reasons for sentences outside the guidelines schema. The data—analyzed with additive and interactive models–indicate that gender (net of other factors) has a small effect on the likelihood of imprisonment toward lesser jailing of female defendants but has a negligible effect on the length-of-imprisonment decision. Observations and interview responses from selected judges help to clarify the ways in which judges' sentencing practices are gender linked. Together, the statistical and the qualitative data suggest that the sentencing practices of judges are driven by two main concerns, blameworthiness (e.g., as indicated by prior record, type of involvement, remorse) and practicality (e.g., as indicated by child-care responsibility, pregnancy, emotional or physical problems, availability of adequate jail space). Based on our findings, we suspect that when men and women appear in (contemporary) criminal court in similar circumstances and are charged with similar offenses, they receive similar treatment. A major question from a policy perspective is, when gender disparities in sentence outcomes do arise, are the disparities warranted or unwarranted?     

THE SOCIAL CONTEXT OF GUIDELINES CIRCUMVENTION: THE CASE OF FEDERAL DISTRICT COURTS*

Recent scholarship on criminal punishments increasingly highlights the importance of courtroom social contexts. Combining recent data from the U.S. Sentencing Commission (FY1997–2000) with aggregate data on federal districts, the current study examines interdistrict variations in the application of downward departures from the federal sentencing guidelines. Findings indicate that substantial variation exists in the probability of both prosecutor‐initiated substantial assistance departures and judge‐initiated downward departures. This variation is accounted for, in part, by organizational court contexts, such as caseload pressures, and by environmental considerations, such as the racial composition of the district. Additional evidence suggests that individual trial penalties and race disparities are conditioned by aggregate court contexts. Drawing on interviews with federal justice personnel, this article concludes with a discussion of future directions for research on federal guidelines departures. Part of the glory of the federal system…is that you've got this one big organization, but it can be molded to different needs…
‐ An assistant U.S. attorney ‐     

COURT COMMUNITIES UNDER SENTENCING GUIDELINES: DILEMMAS OF FORMAL RATIONALITY AND SENTENCING DISPARITY

Efforts to structure sentencing through guidelines involve a fundamental dilemma for the sociology of law—guidelines attempt to emphasize formal rationality and uniformity (Savelsberg, 1992) while allowing discretion to tailor sentences to fit situations and characteristics of individual defendants when courts deem it warranted (substantive rationality). This exercise of substantive rationality in sentencing based on "extralegal" criteria deemed relevant by local court actors risks the kind of unwarranted disparity that guidelines were intended to reduce. We view local courts as arenas in which two sets of sentencing standards meet—formal rational ones articulated by guidelines vs. substantive, extralegal criteria deemed relevant by local court actors. We use statistical and qualitative data from Pennsylvania, a state whose courts have operated under sentencing guidelines for over a decade. Our analysis examines extralegal differences in three county courts' sentencing outcomes, and then documents ways in which substantive rational sentencing criteria are intertwined with defendants' exercise of their right to trial and their race and gender.     

THE INTERACTION OF RACE, GENDER, AND AGE IN CRIMINAL SENTENCING: THE PUNISHMENT COST OF BEING YOUNG, BLACK, AND MALE

Prior theory and research on sentencing oversimplify the role of race, gender and age in judicial decision making. In this article we present a "focal concerns" theory of judicial decision making to frame hypotheses regarding the effects on sentencing of these social statuses, both singly and in combination. Analyzing statewide sentencing outcomes in Pennsylvania for 1989–1992, we find that, net of controls: (1) young black males are sentenced more harshly than any other group, (2) race is most influential in the sentencing of younger rather than older males, (3) the influence of offender's age on sentencing is greater among males than females, and (4) the main effects of race, gender, and age are more modest compared to the very large differences in sentencing outcomes across certain age-race-gender combinations. These findings demonstrate the importance of considering the joint effects of race, gender, and age on sentencing, and of using interactive rather than additive models.     

DOWNWARD DEPARTURES FOR SERIOUS VIOLENT OFFENDERS: LOCAL COURT “CORRECTIONS” TO PENNSYLVANIA'S SENTENCING GUIDELINES*

We examine downward departures for serious violent offenders, using quantitative and qualitative data from Pennsylvania. We find that offense severity and prior record have negative direct effects on downward departures, but a positive interaction effect on them. Offenders convicted of aggravated assault, those who plead guilty, young black women, and offenders sentenced in large urban courts are more likely to receive downward departures, whereas those convicted by trial, young Hispanic males, and offenders sentenced in small rural courts are less likely to receive them. We argue that downward departures represent local “corrections” to guideline recommendations when there is a mismatch between guidelines and local court actors' definitions of key focal concerns of sentencing for serious violent offenders.     

Moral Principles and Legal Validity

Two recent high‐quality articles, including one in this journal, have challenged the Inclusivist and Incorporationist varieties of legal positivism. David Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by the work of Joseph Raz, have endeavored—in sophisticated and interestingly distinct ways—to vindicate Raz's contention that moral principles are never among the law‐validating criteria in any legal system nor among the laws that are applied as binding bases for adjudicative and administrative decisions in such a system. The present article responds to their defenses of Raz's Exclusive Legal Positivism.     

WHEN DOES A REGULATION BECOME A TAKING? THE UNITED STATES SUPREME COURT'S MOST RECENT PRONOUNCEMENTS

Keystone Bituminous Coal, Irving, and Nollan are thus each consistent with paths taken in relevant precedents–the former two with “multifactor balancing” cases such as Penn Central and the latter with “enduring invasion equals taking” decisions such as Loretto v. TeleprompterM. However, can these twosets of precedents themselves be reconciled? I believe that the correct answer is “yes,” and that we therefore have another reason for asserting that Keystone Bituminous Coal and Nollan are consistent with each other. The tests are compatible in that the Court will first ask itself whether the regulation results in a longstanding occupation of property. If the answer is “yes,” it will declare a seizure then and there. Only if the answer if “no” will it proceed to balance.