NCJ Number
29499
Journal
Oklahoma Law Review Volume: 28 Issue: 3 Dated: (SUMMER 1975) Pages: 614-622
Date Published
1975
Length
9 pages
Annotation
DIFFICULTIES IN APPLYING A MANDATORY PRISON SENTENCE PROVISION ARE DEMONSTRATED BY AN EXAMINATION OF OKLAHOMA'S EXPERIENCE WITH THE MANDATORY SENTENCING REQUIREMENTS FOR THE UNIFORM CONTROLLED SUBSTANCES ACT.
Abstract
THE PENALTIES SECTION OF THE ACT, SECTION 2-401, PROVIDES FOR A FINE AND IMPRISONMENT UPON CONVICTION FOR UNLAWFULLY MANUFACTURING, DISTRIBUTING, DISPENSING, OR POSSESSING WITH INTENT TO MANUFACTURE, DISTRIBUTE, OR DISPENSE ANY OF SEVERAL CONTROLLED DANGEROUS SUBSTANCES. IT FURTHER PROVIDES THAT THE SENTENCE IS NOT SUBJECT TO THE STATUTORY PROVISIONS FOR SUSPENDED SENTENCES, DEFERRED SENTENCES, OR PROBATION. THE MANDATORY SENTENCING ASPECT OF THE STATUTE HAS BEEN THE SUBJECT OF REPEATED ATTACKS. THESE ATTACKS, WHICH ARE EXAMINED IN DETAIL, HAVE TAKEN THREE FORMS: CHALLENGING THE CONSTITUTIONALITY OF THE STATUTE, USING METHODS ASSOCIATED WITH THE JUDICIAL SYSTEM TO AVOID APPLICATION OF THE SENTENCING RESTRICTIONS, AND USING METHODS OUTSIDE THE JUDICIAL SYSTEM TO CHANGE THE LAW. CONSTITUTIONAL ATTACKS ON THE BASIS OF DUE PROCESS, CRUEL AND UNUSUAL PUNISHMENT, EQUAL PROTECTION, AND LEGISLATIVE ENCROACHMENT ON JUDICIAL SENTENCING DISCRETION HAVE BEEN UNSUCCESSFUL SO FAR IN THE STATE COURTS. VARIOUS TACTICS HAVE BEEN EMPLOYED WITHIN THE CRIMINAL JUSTICE TO AVOID THE APPLICATION OF THE SENTENCING RESTRICTIONS E.G., PLEA BARGAINING FOR CHARGE REDUCTION TO SIMPLE POSSESSION. IT IS SUGGESTED THAT THE TRIAL JUDGE WHO IS FURNISHED COMPLETE PRESENTENCE REPORT IS IN THE BEST POSITION TO DETERMINE WHAT SENTENCING ALTERNATIVE IS MOST APPROPRIATE UNDER THE CIRCUMSTANCES OF THE INDIVIDUAL CASE. (AUTHOR ABSTRACT MODIFIED)