DISCRETION AND THE DETERMINATE SENTENCE - ITS DISTRIBUTION, CONTROL, AND EFFECT ON TIME SERVED

• NCJ Number: 51618
• Journal: Crime and Delinquency Volume: 24 Issue: 4 Dated: (OCTOBER 1978) Pages: 428445
• Author(s): T R CLEAR; J D HEWITT; R M REGOLI
• Date Published: 1978
• Length: 18 pages
• Corporate Author: National Council on Crime and Delinquency
• Sale Source: UMI Dissertation Services; Institute for Scientific Information
• Language: English
• Country: United States of America
• Note: PAPER PRESENTED AT THE ANNUAL MEETING OF THE AMERICAN SOCIETY OF CRIMINOLOGY, NOV 1977, ATLANTA, GEORGIA

Annotation

THE SENTENCING REFORM (DETERMINATE SENTENCING) INCORPORATED IN THE 1977 INDIANA PENAL CODE IS EVALUATED REGARDING REFORM PROMISE AND DELIVERY WITHIN A BUREAUCRATIC STRUCTURE.

Abstract

SENTENCING REFORMERS HAVE CRITICIZED CURRENT SENTENCING PRACTICES AS BEING ABUSIVE AND ROOTED IN UNREALISTIC ASSUMPTIONS. MOST REFORMERS AGREE THAT CHANGES MUST REDUCE OR ELIMINATE THE DISCRETION AVAILABLE TO SENTENCING JUDGES, REDUCE OR ELIMINATE DISCREPANCIES IN SENTENCING, AND PREVENT UNREASONABLE INCREASES IN PRISON POPULATIONS. THE INDIANA PENAL CODE REPRESENTS COMPREHENSIVE RESTRUCTURING OF THE INDIANA CRIMINAL LAW TO PROVIDE FOR DETERMINATE SENTENCING. HOWEVER, IT IS FELT THAT THE POTENTIAL FOR DISCRETION HAS NOT BEEN REDUCED. SIX CRIME CLASSIFICATIONS ARE USED TO DESCRIBE 200 OFFENSES, AND A SENTENCNG SCHEME IS ALLOTTED TO EACH OF THE CATEGORIES. THE CODE GREATLY EXTENDS PROSECUTORIAL DISCRETION, INCREASES JUDICIAL DISCRETION PARTICULARLY WITH RESPECT TO INTERPRETATION OF AGGRAVATING AND MITIGATING FACTORS WHICH INFLUENCE THE DECISION TO SUSPEND SENTENCES OR THE SELECTION OF FIXED PENALTIES, AND ELIMINATES PAROLE DECISIONS WHILE ALLOCATING CONSIDERABLE DISCRETION TO CORRECTIONAL OFFICIALS WITH REGARD TO DETERMINING INMATES' CREDIT TIME FOR PAROLE. FIXED SENTENCING WAS INTENDED TO BENEFIT BOTH THE LEGISLATURE, BY INCREASING ITS INFLUENCE OVER SENTENCE SUSPENSIONS, AND THE INMATES, BY ALLOWING THEM THE ABILITY TO CONTROL CREDIT TIME THROUGH INSTITUTIONAL BEHAVIOR. HOWEVER, THESE CONTROLS ARE SIGNIFICANTLY REDUCED BY THE PROSECUTOR'S ABILITY TO BYPASS SUSPENSION REQUIREMENTS AND THE CORRECTIONAL OFFICERS' INCREASED CONTROL OVER CREDIT TIME PROVISIONS. THE PROSECUTOR'S ABILITY TO PLEA BARGAIN IS ENHANCED BY PROVISIONS PROHIBITING SUSPENDED SENTENCES FOR SECOND-FELONY OFFENDERS. FIRST OFFENDERS CAN BE COERCED INTO PLEADING GUILTY TO REDUCED CHARGES, FOR WHICH SUSPENSION IS PERMITTED. A PROJECTION OF THE IMPACT OF THIS PENALTY SCHEME INDICATES THAT SOME SENTENCES MAY BE ALMOST 50 PERCENT LONGER IN INDIANA FOR SOME FIRST-TIME FELONY OFFENDERS. IT IS CONCLUDED THAT MANY OF THE CODE'S PROBLEMS COULD BE ELIMINATED BY REDUCING THE LENGTH OF PRISON SENTENCES. REFERENCES AND TABULAR DATA ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED)