Discretion and Judicial Sentencing (From Discretion, Justice, and Democracy, P 54-61, 1985, Carl F Pinkele and William C Louthan, eds. - See NCJ-96653)

• NCJ Number: 96658
• Author(s): C F Pinkele
• Date Published: 1985
• Length: 8 pages
• Sale Source: Iowa State University Press
• Language: English
• Country: United States of America

Annotation

This paper considers the general environment that encourages judicial discretion within the legal system, presents a case study of judicial discretion in practice, and discusses judicial discretion within the context of a democratic polis.

Abstract

There are two distinguishable judicial modes (1) those matters in which judges have direct or explicit leverage and (2) those in which they have an indirect discretionary influence. The effects of indirect judicial discretion are difficult to measure precisely, or even to separate from other variables, but explicit judicial discretionary mechanisms are numerous. These explicit mechanisms include setting bail, instructing the jury, and sentencing. This discretionary behavior of judges is neither checked nor tightly controlled. A case study of two New Orleans judges, Augustine and Oser, reveals that while there is a similarity in their sentencing practices, Judge Augustine is a somewhat harsher sentencing judge than is his colleague. Their differences are reflected in Oser's higher acquittal rate and in the fact that the judges' dissimilarities are greatest at the upper and lower ends of the sentencing scale. For example, the judges sentenced a similar number of defendants convicted of assault and battery (Augustine -- 12 cases, Oser -- 14). Oser's sentences for this crime averaged .46 years, half that of Augustine's average of .94 years. This study reflects the prevalent discretionary norm in sentencing and the widely disparate discretionary effect of sentencing differences. Several solutions to the problem of disparity in sentencing, including establishing parameters for sentencing in similar situations, are suggested.