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NCJRS Abstract

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NCJ Number: 67781 Find in a Library
Title: DUE PROCESS OF SENTENCING
Journal: UNIVERSITY OF PENNSYLVANIA LAW REVIEW  Volume:128  Issue:4  Dated:(APRIL 1980)  Pages:733-828
Author(s): S J SCHULHOFER
Corporate Author: University of Pennsylvania
Law School
United States of America
Date Published: 1980
Page Count: 96
Sponsoring Agency: Institute for Scientific Information
Philadelphia, PA 19104
University of Pennsylvania
Philadelphia, PA 19174
Sale Source: Institute for Scientific Information
University City Science Ctr
3501 Market Street
Philadelphia, PA 19104
United States of America
Language: English
Country: United States of America
Annotation: FOCUSING ON SENTENCING DISPARITIES IN THE FEDERAL COURTS, THIS ARTICLE EXPLORES THE PRINCIPAL DIFFICULTIES INVOLVED IN DEVELOPING CONSISTENT SENTENCES AND SUGGESTS AND EVALUATES A REFORM PROPOSAL.
Abstract: AN OVERVIEW IS PRESENTED OF THE DIFFERING APPROACHES TO SENTENCING REFORM SUGGESTED OR ADOPTED IN JURISDICTIONS ACROSS THE COUNTRY. THE ACTUAL ALLOCATION OF SENTENCING AUTHORITY IN THE FEDERAL COURTS IS ANALYZED, AND THE PROBLEMS OF INSTITUTIONAL DYNAMICS, WHICH COULD DEFEAT THE GOALS OF FEDERAL SENTENCING REFORM UNLESS EFFECTIVE CONTROL OF PROSECUTORIAL DISCRETION CAN BE ACHIEVED ARE TRACED. THE LONG-TERM SOLUTION TO SENTENCING DISPARITY AND OTHER AREAS OF PROSECUTORIAL ACTIVITY, IT IS SUGGESTED, MAY LIE IN THE DEVELOPMENT OF COMPREHENSIVE STANDARDS. HOWEVER, ONE PRACTICAL PROCESS IS EXAMINED WHICH MIGHT SERVE TO IMPOSE ORDER ON THE PROSECUTOR'S DE FACTO SENTENCING POWER-- 'REAL OFFENSE' SENTENCING. UNDER THIS APPROACH, JUDGES COULD OFFSET THE EFFECTS OF CHARGING DECISIONS BY IGNORING THE FORMAL OFFENSE OR CONVICTION. INSTEAD JUDGES DETERMINE THE CATEGORY OF OFFENSE, AS STATED IN SENTENCING GUIDELINES, THAT IS APPLICABLE FOR THE CASE AT HAND USING THEIR OWN CONCEPTION OF THE DEFENDANT'S CONDUCT. BECAUSE THIS 'REAL OFFENSE' APPROACH IS INEFFECTIVE IN A SYSTEM OF STRUCTURED DISCRETION AND WOULD COMPOUND THE UNFAIRNESS IT IS INTENDED TO REMEDY, AN ALTERNATIVE APPROACH IS EXAMINED. THE ALTERNATIVE INVOLVES FORMAL JUDICIAL CONTROL OF PROSECUTORIAL CHARGE-REDUCTION DECISIONS WITHIN A FRAMEWORK OF GUIDELINES. THESE GUIDELINES SHOULD PRESERVE THE PARTICIPATORY DIMENSION OF PROCEDURAL DUE PROCESS BY INCLUDING SAFETY-VALVE FEATURES THAT ENSURE FLEXIBILITY. FOOTNOTES ARE INCLUDED, AND THE APPENDIX PRESENTS MODEL CHARGE-REDUCTION AND SENTENCING GUIDELINES. (WJR)
Index Term(s): Federal courts; Judicial discretion; Plea negotiations; Prosecutorial discretion; Right to Due Process; Sentencing disparity; Sentencing guidelines
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=67781

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