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NCJ Number: 47514 Find in a Library
Title: BETTER WAY TO SENTENCE CRIMINALS
Journal: AMERICAN BAR ASSOCIATION JOURNAL  Volume:63  Dated:(NOVEMBER 1977)  Pages:1562-1566
Author(s): J O NEWMAN
Corporate Author: American Bar Association
United States of America
Date Published: 1977
Page Count: 5
Sponsoring Agency: American Bar Association
Format: Article
Language: English
Country: United States of America
Annotation: A JUDGE EVALUATES THE EXISTING SYSTEM OF SENTENCING AND SUGGESTS A NEW SYSTEM WHICH WOULD GIVE JUDGES SOME GUIDELINES AND HELP ELIMINATE SENTENCING DISPARITIES.
Abstract: THE PROBLEM OF DISPARITY IN CRIMINAL SENTENCES HAS BEEN ATTRIBUTED TO EXCESSIVE JUDICIAL DESCRETION. A SYSTEM OF MANDATORY SENTENCING, IN WHICH SPECIFIC SENTENCES ARE LEGISLATED FOR PARTICULAR CRIMES, HAS BEEN SUGGESTED AS A SOLUTION TO THE PROBLEM. HOWEVER, MANDATORY SENTENCES DO NOT ELIMINATE DISCRETION IN THE JUDICIAL SYSTEM; THEY MERELY SHIFT IT FROM THE JUDGE TO THE PROSECUTOR. FOR EXAMPLE, IF THE PROSECUTOR FEELS THAT A 10-YEAR SENTENCE FOR ARMED ROBBERY IS TOO HARSH FOR A PARTICULAR CASE, HE WILL NOT CHARGE THE DEFENDANT WITH ARMED ROBBERY, BUT WITH A LESSER OFFENSE SUCH AS LARCENY. AN ADDITIONAL PROBLEM WITH A MANDATORY SENTENCING SYSTEM IS THAT IT GIVES THE PROSECUTOR TOO MUCH POWER TO COERCE AN INNOCENT INDIVIDUAL INTO PLEADING GUILTY TO A LESSER OFFENSE IN ORDER TO AVOID THE RISK OF BEING TRIED AND CONVICTED OF A GREATER ONE. ANOTHER PROBLEM WITH THE PRESENT SYSTEM IS THAT FEDERAL AND MOST STATE LAWS PROVIDE ONLY FOR MAXIMUM SENTENCES, BUT GIVE JUDGES NO GUIDELINES FOR A MINIMUM; THE PERMISSIBLE SENTENCE RANGES ARE MUCH TOO BROAD, AND LAWMAKERS HAVE FAILED TO SPECIFY THE CRITERIA TO BE USED IN SELECTING AN APPROPRIATE SENTENCE. SINCE JUDGES ARE GIVEN NO UNIFORM GUIDANCE, EACH DETERMINES SENTENCES ACCORDING TO HIS OR HER OWN VIEWS, WHICH MAY DIFFER GREATLY. JUDGES MAY ALSO SELECT DIFFERENT SENTENCES BECAUSE THEY HAVE DIFFERING EXPECTATIONS OF THE LENGTH OF TIME THE OFFENDER WILL ACTUALLY SERVE AND WHEN RELEASE ON PAROLE WILL BE LIKELY. IN 1973, THE U.S. PAROLE BOARD CONSTRUCTED A TABLE FOR OPTIONAL USE BY LOCAL BOARDS IN DETERMINING THE LENGTH OF TIME THAT AN OFFENDER SHOULD ACTUALLY SERVE. IT TAKES INTO ACCOUNT TWO VARIABLES -- THE SEVERITY OF THE OFFENSE AND THE OFFENDER'S BACKGROUND. THE TABLE HAS BEEN WIDELY USED AND HAS SHOWN THE FEASIBILITY OF CONSTRUCTING RELATIVELY SIMPLE SENTENCING GUIDELINES. IT HAS ALSO SERVED TO ELIMINATE IN ACTUAL PRACTICE A GREAT DEAL OF SENTENCING DISPARITY. IN USING THIS TABLE, THE PAROLE BOARD HAS ALSO APPARENTLY ABANDONED THE NOTION OF DETERMING WHEN AN INMATE HAS BEEN REHABILITATED AND BASING RELEASE ON IT. THUS, MOST OF THE FACTORS CONSIDERED BY THE PAROLE BOARD IN DECIDING THE ACTUAL LENGTH OF SENTENCE ARE ALSO KNOWN TO JUDGES AT THE TIME THAT THEY SET THE ORIGINAL SENTENCE. THUS, THE AUTHOR SUGGESTS THAT A SIMILAR TABLE SHOULD BE CONSTRUCTED FOR USE BY JUDGES AND THAT PAROLE ITSELF COULD BE ABOLISHED. SOME SORT OF SAFETY VALVE MECHANISM SHOULD BE RETAINED TO PERMIT EARLY RELEASE UNDER SPECIAL CIRCUMSTANCES, BUT THAT WOULD NOT REQUIRE AN ELABORATE PAROLE SYSTEM. IT IS ALSO IMPORTANT THAT THE TABLE NOT BE MADE MANDATORY, AS CIRCUMSTANCES IN SOME CASES MAY REQUIRE LONGER OR SHORTER SENTENCES, AND SOME DISCRETION SHOULD BE RETAINED BY JUDGES. (VDA)
Index Term(s): Decisionmaking; Judicial decisions; Judicial discretion; Parole board discretion; Sentencing disparity; Sentencing/Sanctions
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=47514

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