NCJ Number
78640
Date Published
1978
Length
38 pages
Annotation
This paper deals with the latest scholarly discussion about sentencing theory and assesses its effects on judicial practice.
Abstract
This presentation seeks to explain the reasons for the failure of theoreticians to set forth workable, definitive sentencing rules that would eliminate the discretionary, seemingly disparate nature of judicial sentencing practice. Sentencing theory of the last 20 years has produced a wealth of conflicting approaches with irreconcilable aims (rehabilitation, punishment, protection of society, etc.) and with little supportive empirical testing. Among the latest theoretical models espoused by a number of scholars is one of graduated sentence severity commensurate with offense seriousness. The major shortcoming of this approach is that its measures relate the crime to the punishment but fail to regulate any attendant considerations of rehabilitation or social protection. Thus, the judge must nevertheless rely on an element of intuition in pronouncing sentences that are just in individual cases. It is contended that this discretion is intrinsic to the nature of judicial decisionmaking. While proponents of rational guidelines seek to eliminate its power, judges recognize it as the essential feature of their role. It is for this reason that no absolute theoretical sentencing guidelines have been endorsed or adopted by the judicial profession. Footnotes are provided.