NCJ Number
60983
Date Published
1979
Length
138 pages
Annotation
THIS REPORT EVALUATES METHODS FOR CONTROLLING BOTH CHARGING AND SENTENCING DISCRETION AND IDENTIFIES APPROACHES THAT THE U.S. SENTENCING COMMISSION COULD TAKE IN PROMULGATING GUIDELINES UNDER S. 1437.
Abstract
THE PROPOSED FEDERAL CRIMINAL CODE PASSED BY THE SENATE IN 1978 AS S. 1437 CONTAINS PROVISIONS THAT WOULD RADICALLY ALTER THE STRUCTURE OF THE FEDERAL SENTENCING PROCESS. THE BILL WOULD CREATE A UNITED STATES SENTENCING COMMISSION THAT WOULD PROMULGATE GUIDELINES TO BE USED BY TRIAL JUDGES IN DETERMINING SENTENCES. THE BILL IS INTENDED TO NARROW THE DISCRETION EXERCISED BY JUDGES AND THE U.S. PAROLE COMMISSION, IN ORDER TO AVOID UNWARRANTED DISPARITIES. HOWEVER, THE REFORMS PROPOSED IN S. 1437 ACTUALLY COULD AGGRAVATE THE PROBLEMS OF DISCRETION BECAUSE ENORMOUS DISCRETION EXERCISED BY THE PROSECUTORS WOULD NOT BE CONTROLLED. IF JUDICIAL DISCRETION WERE GREATLY REDUCED, THE PROSECUTOR'S DECISIONS REGARDING CHARGE AND PLEA AGREEMENTS WOULD BE MUCH MORE IMPORTANT IN THE DETERMINATION OF PUNISHMENT. THEREFORE, GUIDELINES ARE RECOMMENDED TO MINIMIZE THE DANGERS OF PROSECUTORIAL DISCRETION, INCLUDING GUIDELINES FOR RESTRICTING JUDICIAL DISCRETION, FOR PRESERVING JUDICIAL DISCRETION, AND FOR CONTROLLING CHARGING AND SENTENCING. CHARGES AND SENTENCES MAY BE REGULATED BY BASING THE SENTENCES ON THE 'REAL' OFFENSE RATHER THAN THE FORMAL CHARGE, OR THROUGH FORMAL GUIDELINES FOR CHARGE-REDUCTION DECISIONS AND FOR EXPLICIT CONCESSIONS FOR DEFENDANTS PLEADING GUILTY. A GUIDELINE MODEL REFLECTING THE LATTER METHOD IS DESCRIBED. FURTHER RECOMMENDATIONS INCLUDE THE AMENDMENT OF S. 1437 TO EXPRESS THE CONGRESSIONAL INTENT TO IMPOSE ONLY MINOR RESTRICTIONS ON JUDICIAL DISCRETION. FOOTNOTES ARE PROVIDED. FOR THE TECHNICAL SUPPLEMENT TO THIS REPORT, SEE NCJ-60984. (TWK)