American Volte-Face in Sentencing Thought and Practice (From Crime, Proof and Punishment - Essays in Memory of Sir Rupert Cross, P 127-143, 1981, C F Tapper, ed. - See NCJ-87757)

• NCJ Number: 87758
• Author(s): L Radzinowicz; R Hood
• Date Published: 1981
• Length: 17 pages
• Sale Source: Butterworth-Heinemann
• Language: English
• Country: United Kingdom

Annotation

The American shift from indeterminate and individualized sentencing to determinate and presumptive sentencing may have exchanged one pattern of injustice in sentencing to another pattern.

Abstract

Since the early 1970's, criticism of indeterminate and individualized sentencing has mounted. Some critics focused on the inconsistencies and injustices perperated by the system of indeterminate sentencing; some concentrated on the disparities produced by the theory and practice of individualized punishment; others criticized the excessive and uneconomical use of incarceration. Critics also challenged the claims that sentences should be tailored to rehabilitative needs of offenders or to their supposed dangerousness. Some sought an all-embracing theory of punishment upon which a more consistent, fair, and effective system of criminal justice could be constructed, while others urged the adoption of a system of definite and mandatory containment of certain classes of offender. The first dramatic change in sentencing statutes occurred in Maine, which abolished indeterminate sentencing in favor of determinate sentencing. This was followed by California's adoption of a complete presumptive sentencing system. Another type of determinate sentencing structure was adopted in some States, where the legislature establishes ranges of sentences within which the judge has discretion to impose the preferred term. The use of a sentencing commission has also gained some support. These formulae have in turn drawn much criticism. Presumptive sentences are subject to political pressure to raise the level of punishment. The prison population is increasing, and the exercise of discretion is shifting from the parole board to the prosecutor. The new system produces inequalities as judicial discretion to consider sentences appropriate under particular circumstances has been limited. Experience shows that the inequities produced by mandatory penalties are at least as serious in their own way as those produced by a system based on judicial discretion.