NCJ Number
53491
Journal
Northwestern University Law Review Volume: 71 Issue: 1 Dated: (1977) Pages: 29-65
Date Published
1976
Length
37 pages
Annotation
THE EXTENT OF SENTENCING DISCREPANCIES AND WAYS TO REDUCE THEM ARE CONSIDERED; EQUAL PROTECTION DOCTRINES OFFER A STRATEGY FOR REVIEWING DISPARATE SENTENCES WITHOUT ELIMINATING SENTENCING DISCRETION.
Abstract
THE COURTS, IN REVIEWING PRIMARY SENTENCING DECISIONS, HAVE LIMITED THEIR EFFORTS ONLY TO THE MOST OBVIOUS CATEGORIES OF CASES--DISPARITY BASED ON SEX, AGE, WEALTH, AND THE EXERCISE OF CONSTITUTIONAL RIGHTS. WHERE SPECIAL FACTORS OF THIS SORT ARE ABSENT, THE TRADITION OF NONREVIEW REMAINS DOMINANT DESPITE THE SIGNIFICANCE OF THE DISPARITY PROBLEM. EFFORTS TO REDUCE DISPARITY THROUGH PROCEDURAL REFORMS, SUCH AS REQUIRING PRESENTENCE REPORTS (I.E., AND THEIR DISCLOSURE TO THE DEFENDANT AS WELL AS PROVIDING MORE ACCURATE INFORMATION TO THE SENTENCER), DEAL ONLY INDIRECTLY WITH THE SUBSTANCE OF THE SENTENCING DECISION. SENTENCING COUNCILS AND INSTITUTES AND APPELLATE REVIEW OF SENTENCING ARE ALSO VIEWED AS PROCEDURAL REFORMS WHICH, WHILE HELPFUL, DO NOT ADDRESS THE DISPARITY PROBLEM DIRECTLY. WHILE COURTS MAY BE JUSTIFIABLY RELUCTANT TO EVALUATE SENTENCING UNDER EIGHTH AMENDMENT AND SUBSTANTIVE DUE PROCESS PRINCIPLES, MORE FLEXIBLE CONTROL CAN BE ACHIEVED UNDER THE NEW STANDARDS OF EQUAL PROTECTION. THE BARRIERS IMPOSED UNDER THIS DOCTRINE ARE NOT INSURMOUNTABLE AND WOULD PERMIT RETENTION, IN PRINCIPLES, OF SENTENCING DISCRETION. EQUAL PROTECTION WOULD ALLOW SENTENCES TO VARY BETWEEN DEFENDANTS, BUT ONLY IF THE SENTENCES REFLECT RATIONAL DISTINCTIONS. IT IS CONCLUDED THAT THE SPECIAL CATEGORIES OF SENTENCING DECISIONS IN WHICH COURTS HAVE INTERVENED IN THE PAST CAN ALL FIT UNDER EQUAL PROTECTION THEORY. BEYOND THIS, HOWEVER, THE EQUAL PROTECTION DOCTRINE CAN BE APPLIED TO THE FUNDAMENTAL PROBLEM OF DISPARITY IN A VARIETY OF OTHER CONTEXTS. THE OBVIOUS INITIAL AREA IS THE SENTENCING OF CODEFENDANTS. SINCE THE CRIME IS THE SAME, ALL DEFENDANTS SHOULD RECEIVE THE SAME SENTENCE, UNLESS THERE ARE REASONS TO JUSTIFY VARIATIONS; E.G., EXTENT OF PARTICIPATION OR ASPECTS OF THE DEFENDANT'S BACKGROUND. IT IS ADVISED THERE IS NO REASON TO PRECLUDE SIMILAR COMPARISONS BETWEEN UNRELATED CRIMES. (AUTHOR ABSTRACT MODIFIED--RCB)