NCJ Number
49165
Date Published
1976
Length
8 pages
Annotation
PROBLEMS IN THE EXERCISE OF DISCRETION IN SENTENCING AND IN PAROLE DECISIONMAKING ARE DISCUSSED, AND MECHANISMS FOR CONTROLLING DISPARITY -- SHORT OF ELIMINATING DISCRETION -- ARE CONSIDERED.
Abstract
THE REMEDY FOR THE POOR USE OF DISCRETION IN THE CRIMINAL JUSTICE SYSTEM IS THE PROVISION OF METHODS AND CONTROLS TO IMPROVE THE USE OF DISCRETION, NOT THE ELIMINATION OF DISCRETION. THE ELIMINATION OF DISCRETION MAY IN REALITY MEAN THE SHIFTING OF DISCRETIONARY POWER TO PART OF THE SYSTEM WHERE IT IS LESS VISIBLE AND LESS SUBJECT TO CONTROL. VARIOUS TECHNIQUES TO CONTROL SENTENCING DISCRETION HAVE BEEN PROPOSED -- SENTENCING COUNSELS, APPELLATE REVIEW OF SENTENCING, PROVISION OF WRITTEN REASONS FOR SENTENCES, FORMULATION OF EXPLICIT SENTENCING POLICY. THESE TECHNIQUES RARELY HAVE BEEN IMPLEMENTED IN SENTENCING PRACTICE AND AS YET HAVE NOT HAD MUCH IMPACT. DETERMINING WHETHER TO PAROLE A CONVICTED OFFENDER SHARES A NUMBER OF FEATURES WITH THE SENTENCING DECISION, AND CRITICISMS OF PAROLE DECISIONMAKING (ARBITRARY AND CAPRICIOUS, DECISION DISPARITY, ETC.) HAVE BEEN SIMILAR TO THOSE OF SENTENCING. IN 1972 THE U.S. PAROLE COMMISSION UNDERTOOK A PILOT PROJECT THAT INCLUDED A SET OF TECHNIQUES DESIGNED TO STRUCTURE AND CONTROL THE DISCRETIONARY POWER OF THE COMMISSION WITHOUT REMOVING ITS ABILITY TO CONSIDER EACH CASE INDIVIDUALLY. THESE TECHNIQUES INCLUDED THE USE OF TWO-PERSON PANELS OF HEARING EXAMINERS (ANALOGOUS TO SENTENCING COUNSELS), PROVISION OF WRITTEN REASONS FOR PAROLE DECISIONS, PROVISION FOR ADMINISTRATIVE APPEAL OF ADVERSE PAROLE DECISIONS, AND THE USE OF EXPLICIT DECISIONMAIKING GUIDELINES FOR PAROLE SELECTION. THE COMMISSION'S EXPERIENCE WITH THESE MECHANISMS SUGGESTS THAT EFFECTIVE SOLUTIONS TO THE PROBLEM OF DISCRETION IN CRIMINAL JUSTICE DECISIONMAKING ARE POSSIBLE, THOUGH NOT SIMPLE. IT IS POINTED OUT THAT A SIDE BENEFIT OF THE INCREASING CRITICISM OF PAROLE PRACTICES IS THAT CORRECTIONS OFFICIALS ARE BECOMING MORE INNOVATIVE. (LKM)