NCJ Number
68311
Journal
Minnesota Law Review Volume: 64 Issue: 4 Dated: (APRIL 1980) Pages: 669-750
Date Published
1980
Length
82 pages
Annotation
COERCIVE SENTENCING--JUDICIAL USE OF SENTENCING POWER TO INDUCE CRIMINAL DEFENDANTS TO COOPERATE WITH THE STATE--IS EXAMINED IN THIS ARTICLE.
Abstract
IN COERCIVE SENTENCING, DEFENDANTS FEARING PENALTY SEVERITY OR HOPING FOR LENIENCY MAY PLEAD GUILTY TO CRIMINAL CHARGES AND FOREGO TRIAL, TESTIFY IN THE CRIMINAL PROSECUTIONS OF OTHERS, PROVIDE EXTRAJUDICIAL INFORMATION TO GOVERNMENT AGENTS INVESTIGATING PAST OR POTENTIAL CRIMES, OR BECOME UNDERCOVER INFORMANTS OR OPERATIVES FOR LAW ENFORCEMENT AGENCIES. THIS ARTICLE DISCUSSES THE LEGAL, ETHICAL, AND PRACTICAL DIFFICULTIES INHERENT IN THE EXERCISE OF SUCH SENTENCING POWER. THE ENDS OF SUCH POWER WERE ILLUSTRATED IN JUDGE JOHN SIRICA'S SENTENCING OF THE WATERGATE BURGLARS. (COOPERATOR JOHN MCCORD WAS SENTENCED TO 5 YEARS IN PRISON, WHILE G. GORDON LIDDY, WHO REFUSED TO COOPERATE GOT 6 YEARS TO 20 YEARS AND A $40,000 FINE). A DESCRIPTION IS GIVEN OF THE VARIETY OF COERCIVE SENTENCING PRACTICES, AND THEN A NORMATIVE PLAN TO EVALUATING THE PROCEDURES IS EXPLAINED AND DEFENDED. THE RELATIONSHIP BETWEEN ETHICAL CONSTRAINTS AND THE CONSTITUTIONAL IMPLICATIONS OF COERCIVE SENTENCING IS EXAMINED, AND A SERIES OF PROCEDURAL SAFEGUARDS FOR ENSURING THE EFFECTIVE PROTECTION OF DEFENDANTS' RIGHTS IS DELINEATED. IT IS CONCLUDED THAT THE EXERCISE OF JUDICIAL SENTENCING POWER TO COERCE GUILTY PLEAS, TESTIMONY, OR INFORMANT SERVICE MAY BE CONSISTENT WITH ETHICAL NORMS, CONSTITUTIONAL REQUIREMENTS, AND WITH THE PROPER ROLE OF COURTS IN AN ADVERSARY SYSTEM. HOWEVER, THE EXERCISE OF THAT POWER MUST BE RIGIDLY CIRCUMSCRIBED BY THE CONSIDERATIONS OF RETRIBUTIVE PROPORTIONALITY AND UTILITARIAN EFFECTIVENESS WITHIN A PROCEDURAL CONTEXT DESIGNED WITH DUE REGARD FOR THE FUNDAMENTAL RIGHTS OF THE ACCUSED OR CONVICTED. FOOTNOTES ARE INCLUDED. (MJW)