NCJ Number
94872
Journal
Journal of Criminal Law and Criminology Volume: 75 Issue: 1 Dated: (Spring 1984) Pages: 260-271
Date Published
1984
Length
12 pages
Annotation
Concerns over disparity in sentencing during the first half of this century are similar to those raised most recently, resulting during the 1940's in the indeterminate sentencing system and during the late 1970's and early 1980's in widespread adoption of determinate sentencing.
Abstract
Statistical evidence to support dissatisfaction with disparity in sentencing was not compiled until the early 1900's. A 1919 study analyzing sentencing data for the New York City magistrate's courts cases of 1916 found wide disparity in the sentencing practices of different judges. A 1933 and 1940 study found similar results. The Italian Penal Code of 1919 marked a significant step in sentencing reform. Italian thinkers believed that sentencing should focus on the offender's personal and social background, rather than on the nature of the crime. The 'circumstances of dangerousness' theory emphasized in the code has been incorporated into American penal law. In 1928, Sheldon Glueck suggested that a treatment board of social scientists should determine the best treatment for each offender, thus providing a truly indeterminate sentence aimed at the offender rather than at the act. Sentencing reformers in the 1930's and 1940's were driven by increasing concern with sentencing variation itself and by the need for sentence reform because of dissatisfaction with legislative rules not accounting for the treatment potential of offenders. Both perspectives were linked with indeterminate sentencing use, common in the United States in the 1940's. But in the 1950's and 1960's, questions began to arise about the effectiveness of indeterminacy, much as questions had arisen about the old system of the 1930's and 1940's. The ultimate result was a nationwide trend back toward determinacy. However, this review shows that the advocates of both determinacy and indeterminacy share a common interest in eliminating unwarranted disparity. Thus, changing philosophies may simply reflect the most recent trend in the cyclical concern about variation in criminal sentences. A total of 57 footnotes are provided.