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Temple Political & Civil Rights Law Review

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Imagine the following rather run-of-the-mill crime spree:

Three young men, ranging in age from eighteen to twenty and without significant criminal histories, get together to rob a convenience store in New York City. They take an unloaded an inoperable gun, go into the store, point the gun at the clerk behind the counter, and take a few hundred dollars from the cash register. Flush with success, they decide to do it again, this time at a jewelry store down the block. One of the young men points the unloaded gun at the store employees, another stands guard by the door, and the third jumps over the counter and grabs as many jewels as he can. Their total take is approximately $20,000. Realizing that they cannot continue to rob stores on the same block without getting caught, they branch out and rob a jewelry store in New Jersey, another Connecticut, and a third in Massachusetts, using the same pattern. After the fifth robbery, they are caught.

What sentences would these three young men get for committing five robberies in four different states using an inoperable gun? And what would the federal prosecutor's role be in determining a just sentence? The answer to these questions would depend on when the robberies were committed.

In the decades before the United States Sentencing Guidelines went into effect in 1987, the sentencing judge would have had almost unfettered discretion to individualize sentences for our three defendants. Although the prosecutor had the power to decide which charges to bring, the charging decision set only the broadest parameters for the sentence, giving prosecutors little incentive to reflect on the justice of possible sentencing.



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