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NCJ Number: 77107 Find in a Library
Title: Procedural and Substantive Fairness in Sentencing - An Unnecessarily Unappealing Subject to Pennyslvania Higher Courts
Journal: Dickenson Law Review  Volume:82  Dated:(Winter 1980)  Pages:379-408
Author(s): B V O'Hare
Date Published: 1980
Page Count: 30
Format: Article
Language: English
Country: United States of America
Annotation: Focusing on sentencing review by the appellate courts in Pennsylvania, this article argues that the courts have failed to assure either procedural or substantive fairness in sentencing and that proposed sentencing reforms should be adopted.
Abstract: Sentencing is depicted as one of the most complex and difficult functions that a jurist performs, yet this decisional process receives the least scrutiny from the appellate courts. Since most defendants who reach the trial stage choose to plead guilty, their fate rests almost entirely with the trial judge. One reason the assumption is made that appellate courts lack authority to investigate the unfair sentence is because early common law did not allow criminal appeals. Nevertheless, higher tribunals may justify their exercise of this power as a logical corollary to appellate jurisdiction, which has been underscored by both statutory and constitutional provisions. In procedural terms, sentencing fairness must be considered in terms of the defense counsel's role in the sentencing process and the sentencing court's consideration of prior and subsequent arrests, as well as prior criminal offenses. Review of a sentence's substantive fairness has been ostensibly limited to whether the sentence is so manifestly excessive that it constitutes too severe a punishment. Pennyslvania's higher courts have recognized two indispensible elements of the substantively fair sentence -- its rational basis and its freedom from disparity. It is argued that the appellate workload could be increased if the court dared to examine more explicitly the substantive fairness of criminal sentences. However, this potential obstacle could be overcome by streamlining the appellate machinery when the only issue on appeal is the sentence's validity and by creating a sentencing commission to promulgate guidelines to assist lower courts in pronouncing sentences. Less satisfactory proposals for reform include return to the determinate sentence and enhanced sentences on appeal. The article includes 208 footnotes.
Index Term(s): Appeal procedures; Appellate courts; Pennsylvania; Post-conviction remedies; Sentence review; Sentencing reform; Sentencing/Sanctions; State courts; Trial courts
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=77107

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