THE ADVISORY COUNCIL ON THE PENAL SYSTEM DISCOVERED IN ITS COMPREHENSIVE REVIEW OF THE SENTENCING SYSTEM THAT MAXIMUM SENTENCES OF IMPRISONMENT LAID DOWN BY PARLIAMENT OVER THE LAST CENTURY ARE HAPHAZARD AND DO NOT REFLECT SENTENCES ACTUALLY IMPOSED BY THE COURTS. THEY RECOMMEND REPLACING THE PRESENT SYSTEM WITH ONE MORE IN ACCORD WITH THE WAY SENTENCES ARE DISTRIBUTED IN PRACTICE. THEY ADVOCATE THAT NEW LEVELS OF MAXIMUM PENALTIES BE ESTABLISHED THAT ARE EQUIVALENT TO THE LENGTH OF IMPRISONMENT NOW BEING SERVED BY 90 PERCENT OF THOSE SENTENCED FOR THE PARTICULAR OFFENSE. THEY RECOMMEND ALSO A HIGHER LEVEL OF MAXIMUM PENALTIES (SIMILAR TO THOSE BEING SERVED BY THE REMAINING 10 PERCENT) TO BE IMPOSED FOR THE PROTECTION OF THE PUBLIC IN EXCEPTIONAL CASES WHERE SERIOUS HARM HAS BEEN COMMITTED. A TWO-TIER SENTENCING SYSTEM WOULD THUS BE CREATED. THIS FORMULA FOR NEW MAXIMUM PENALTIES SIMPLY TRANSLATES CURRENT JUDICIAL PRACTICE INTO LEGISLATION WITHOUT MAKING VALUE JUDGMENTS CONCERNING THE FAIRNESS OR APPROPRIATENESS OF THE SUGGESTED PENALTIES. THE PROPOSED SYSTEM SHOULD LOWER MAXIMUM SENTENCES FOR THE BULK OF CASES AND REDUCE OVERALL AVERAGE SENTENCE LENGTH. THE COUNCIL SHOULD BE COMMENDED FOR ATTEMPTING TO BRING CONSISTENCY INTO AN IRRATIONAL CONGLOMERATION OF MAXIMUM PENALTIES UNRELATED TO PRACTICE OR THE SERIOUSNESS OF THE OFFENSE. JUDGES, HOWEVER, SHOULD NOT HAVE TO RESORT TO A STATISTICAL FORMULA TO DISTINGUISH DEGREES OF GRAVITY, AND THE COUNCIL'S RECOMMENDATIONS OBLITERATE DISTINCTIONS (RANGES IN SENTENCE LENGTH) THAT OCCUR NOW IN FIRST-TIER CASES. IT IS ALSO DIFFICULT TO DEFINE THE CONCEPT OF 'POTENTIAL SERIOUS HARM' THAT MUST BE PRESENT BEFORE A CASE IS TO BE CONSIDERED EXCEPTIONAL AND WORTHY OF THE SECOND-LEVEL MAXIMUM PENALTIES. THERE IS NO INDICATION CONCERNING WHO MIGHT QUALIFY AS SUFFICIENTLY DANGEROUS TO WARRANT THE EXCEPTIONAL SENTENCE, AND THERE ARE NOT ENOUGH SAFEGUARDS PROPOSED TO PROTECT INDIVIDUAL RIGHTS. (KJM)