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Controlling Sentencers

NCJ Number
109252
Journal
Australian and New Zealand Journal of Criminology Volume: 20 Issue: 4 Dated: (December 1987) Pages: 218-246
Author(s)
R G Fox
Date Published
1987
Length
29 pages
Annotation
This article notes how the identification of judicial discretion and the fear of sentencing disparity have spurred sentencing reform in Australia, examines evidence for sentencing disparity, reviews the concepts of judicial independence and expertise threatened by sentencing reforms, and recommends a cautious approach to such reform.
Abstract
The Australian Law Reform Commission acknowledges in its interim report the difficulty of documenting sentencing disparity with hard Australian data, given the variety of philosophies that govern sentencing across the country. Prosecutorial or executive discretion can also be used to determine case outcomes, which means that legislation focusing on judicial discretion is not sufficient to address sentencing disparity. The concept of judicial independence and expertise in sentencing argues for a significant degree of judicial discretion in dealing with particular cases. Judicial self-regulation through appellate review, judicial narrative, sentencing guidelines, sentencing councils, judicial training, and information services have sought to achieve greater sentencing uniformity based on judicial expertise. The failure of self-regulation has led to statutory sentencing regulation in the form of restructured penalties, presumptive sentencing, guideline sentencing, and nonjudicial sentencing. Although excessively rigid regulation of judicial discretion is not a panacea, some agency must assume permanent responsibility for the ongoing monitoring of sentencing decisions and the provision of sentencing information and services for judges. 125 notes.

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