NCJ Number
86558
Journal
Vanderbilt Law Review Volume: 35 Issue: 3 Dated: (April 1982) Pages: 607-641
Date Published
1982
Length
35 pages
Annotation
Following an examination of objections to indeterminate sentencing and consequent sentencing reforms, this paper asserts that present reform proposals are inadequate because they are divorced from criminal law and then outlines a comprehensive scheme to resolve this problem.
Abstract
The article first summarizes the basic objectives to indeterminate sentencing that have influenced recent sentencing reforms -- disparity, discrimination, normlessness, and irresponsibility in sentencing along with apparent ineffectiveness in controlling crime. Reform measures designed to remedy these problems are discussed, including parole guidelines, descriptive sentencing guidelines, presumptive sentencing, mandatory minimum sentences, parole abolition, and plea bargaining bans. The author contends that these reforms are only half-measures because they operate within the context of criminal laws that were produced by the same rehabilitative ideology that underlies indeterminate sentencing. At trial, the defendant has important procedural safeguards, and the State must meet all substantive criminal law requirements before the defendant can be convicted. Most convictions, however, result from guilty pleas, and trial rights and protections are unimportant in such cases. Under indeterminate sentencing, defendants have no rights except for some procedural ones, and the court can convict and sentence without ever applying substantive criminal law requirements. The new reforms have failed to address this systemic flaw and have only concerned sanctioning. The paper expands on the importance of criminal law revision in sentencing reform by discussing the effects of reforms such as minimum sentencing laws, sentencing guidelines, and proposals to control plea bargaining. Concluding suggestions to diminish sentencing injustices focus on the following innovations: reformers must revise criminal codes to reflect the morally salient features of criminal conduct and develop detailed sentencing standards to guide judges, while legislatures must shorten enormously long maximum sentences prevalent under indeterminate sentencing laws, establish appellate review of sentences, and provide adequate material support. The article contains 197 footnotes. For related material, see NCJ 86552.