NCJ Number
144134
Journal
University of Colorado Law Review Volume: 64 Issue: 3 Dated: (1993) Pages: 655-677
Date Published
1993
Length
23 pages
Annotation
Sentencing commissions and guidelines cannot be expected to remedy all defects in sentencing laws and practices, and lessons must be learned from the experiences of the Federal Sentencing Commission and State sentencing reform efforts.
Abstract
Two basic choices exist with respect to sentencing commissions and guidelines: (1) they can be abolished; or (2) efforts can be made to ensure that the commissions and guidelines achieve the goal of law-based humane sentencing. During the past few years, the experience of sentencing commissions underscores the intractability of the problem of prosecutorial power. Some question whether sentencing equality driven by sentencing guidelines can be achieved in a prosecutor-dominated criminal justice system. A critical issue in the debate is the relation among prosecutorial power, plea bargaining, and sentencing commissions. One key question that needs to be addressed is whether enlarged prosecutorial power, exercised in plea bargaining and in the manipulation of sentencing guideline categories, has significantly undermined the objective of sentencing equality. The inherent problem of prosecutorial power in plea bargaining is exacerbated by the prosecutor's power to invoke charges carrying a mandatory minimum sentence to increase harshness or to substantially mitigate a sentence by awarding defendants hefty credits for cooperation and assistance. States can learn from the mistakes of the Federal Sentencing Commission and move toward a just sentencing guideline system. States should avoid unnecessary aggravation of harsh legislative enactments, avoid unnecessary enhancement of prosecutorial power, construct an intelligible sentencing approach using a comprehensible process, and be aware of the effects of sentencing guidelines on racial groups. 56 footnotes