IN FAVOR OF 'PRESUMPTIVE SENTENCES' SET BY A SENTENCING COMMISSION

• NCJ Number: 51617
• Journal: Crime and Delinquency Volume: 24 Issue: 4 Dated: (OCTOBER 1978) Pages: 401427
• Author(s): R SINGER
• Date Published: 1978
• Length: 27 pages
• Corporate Author: National Council on Crime and Delinquency
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: EARLIER VERSION OF THIS PAPER APPEARED IN CRIMINAL JUSTICE QUARTERLY, JANUARY 1978, P 88-105

Annotation

MISUNDERSTANDINGS ABOUT PROPOSALS FOR SENTENCING REFORMS ARE ADDRESSED, AND THE POSSIBILITY OF INSTITUTING PRESUMPTIVE SENTENCING THROUGH THE MECHANISM OF A SENTENCING COMMISSION IS RAISED.

Abstract

PRESUMPTIVE SENTENCING IS A SCHEME BY WHICH THE 'NORMAL' SENTENCE FOR THE 'NORMAL' OFFENDER IS PREDETERMINED, AND SENTENCING JUDGES VARY FROM THAT NORM ONLY IN EXCEPTIONAL CASES, WITH THEIR JUSTIFICATION FOR VARIANCE STATED IN A WRITTEN OPINION. IN CONSIDERING PRESUMPTIVE SENTENCNG, TWO POINTS ARE ESPECIALLY IMPORTANT: (1) PRESUMPTIVE SENTENCING DOES NOT ABOLISH JUDICIAL DISCRETION AND (2) THE PROPER MECHANISM FOR ESTABLISHING PRESUMPTIVE SENTENCE GUIDELINES IS A SENTENCING COMMISSION, NOT THE LEGISLATURE. PRESUMPTIVE SENTENCING ALLOWS SOME FLEXIBILITY FOR INCREASING OR DECREASING A SENTENCE AND PERMITS THE SENTENCING JUDGE TO RETAIN A REASONABLE AMOUNT OF REVIEWABLE DISCRETION. 'SENTENCING BY COMPUTER' WOULD NOT OCCUR. THE POSSIBILITY THAT LEGISLATURES WILL SET PRESUMPTIVE SENTENCES TOO HIGH OR ALLOW SUCH LEEWAY FOR AGGRAVATING AND MITIGATING CIRCUMSTANCES THAT ESSENTIALLY NO REFORM WILL RESULT CAN BE AVOIDED BY PLACING THE RESPONSIBILITY FOR SETTING SENTENCING GUIDELINES AND PRESUMPTIVE SENTENCES WITH A SEPARATE, NONPOLITICAL BODY COMPOSED OF LAY MEMBERS AND REPRESENTATIVES OF THE CRIMINAL JUSTICE COMMUNITY. SUCH A BODY WOULD NEITHER SET SENTENCES IN INDIVIDUAL CASES NOR SIT AS AN APPELLATE TRIBUNAL. ITS JOB IS RULEMAKING, SETTING SENTENCING GUIDELINES BY WHICH JUDICIAL DISCRETION IS MEASURED, AND COLLECTING DATA ON SENTENCES IMPOSED TO DETERMINE WHETHER JUDGES ARE FOLLOWING THE GUIDELINES AND, IF NOT, WHETHER CHANGES IN THE GUIDELINES ARE JUSTIFIED. PERHAPS THE MOST IMPORTANT REASON FOR ESTABLISHING SENTENCING COMMISSIONS IS THAT, DIVORCED FROM THE DAILY PRESSURES OF THE COURTS AND THE LEGISLATIVE PROCESS, THEY CAN OBJECTIVELY, OVER A PERIOD OF TIME AND AFTER PUBLIC HEARINGS, PROPOSE A SYSTEM OF PROPORTIONATE SENTENCES THAT WILL REFLECT SOCIETY'S GENERAL VIEW OF THE SERIOUSNESS OF SPECIFIC OFFENSES. THE JUST DESERTS-PRESUMPTIVE SENTENCE SCHOOL OF THOUGHT ARGUES THAT PUNISHMENT, FAIRNESS, AND EQUALITY MUST BE THE BASIS OF SENTENCING. THOSE WHO SUPPORT PRESUMPTIVE SENTENCNG DO NOT PROPOSE TO END ALL ATTEMPTS TO TREAT OR REHABILITATE INMATES. THEY ONLY SEEK TO REMOVE REHABILITATION FROM THE PURPOSES OF SENTENCING.