NCJ Number
53533
Journal
Wayne Law Review Volume: 24 Issue: 3 Dated: (MARCH 1978) Pages: 857-937
Date Published
1978
Length
81 pages
Annotation
THIS ARTICLE DISCUSSES THE MOVEMENT TOWARD DEFINITE SENTENCING NATIONALLY, EMPHASIZING RECENT PROPOSALS AND LEGISLATION, AND THE DEFINITE SENTENCING DEBATE IN MICHIGAN.
Abstract
DEFINITE SENTENCING REFERS TO A SYSTEM WHEREBY DEFENDANTS ARE SENTENCED TO SERVE A SPECIFIC TERM (E.G. 4 YEARS) RATHER THAN A RANGING TERM (E.G. 4 TO 10 YEARS). A VARIATION OF DEFINITE SENTENCING IS PRESUMPTIVE SENTENCING WHICH REQUIRES THAT EVERY PERSON CONVICTED OF A SPECIFIED CRIME SERVE A SPECIFIED PRISON TERM PLUS OR MINUS AN AGGRAVATING OR MITIGATING TERM, LESS GOOD TIME. ANOTHER MODEL OF DEFINITE SENTENCING INVOLVES SENTENCING GUIDELINES WHICH CONSIST OF TABLES OF NORMAL SENTENCES WHICH JUDGES ARE TO METE OUT FOR OFFENSES OF A CERTAIN SERIOUSNESS TO OFFENDERS WITH CERTAIN CHARACTERISTICS. THE TWO PROGRAMS FOR SENTENCING CHANGE WHICH HAVE HAD THE GREATEST IMPACT ARE PRESUMPTIVE SENTENCING AND SENTENCING GUIDELINES. MAINE WAS THE FIRST STATE TO REVISE ITS SENTENCING STRUCTURE IN ACCORDANCE WITH THE RECENT ATTACK ON INDETERMINATE SENTENCING. THE MAINE LAW REQUIRES JUDGES TO SET DEFINITE SENTENCES, YET IT PROVIDES THAT ALL PRISON SENTENCES EXCEEDING 1 YEAR BE DEEMED TENTATIVE. INDIANA HAS PASSED A PRESUMPTIVE SENTENCING LAW REQUIRING JUDGES TO SET MANDATORY TERMS UPON CONVICTION FOR A CERTAIN FELONY CLASS, YET THE ABILITY TO AGGRAVATE OR MITIGATE SENTENCES MAKES THE MANDATORY REQUIREMENT ILLUSORY. THE CALIFORNIA DETERMINATE SENTENCING LAW SETS TERMS PROPORTIONATE TO THE SERIOUSNESS OF OFFENSES, YET IT PERMITS NONINCARCERATION OR LESS INCARCERATIVE PUNISHMENTS OF FINES, PROBATION, OR SENTENCE SUSPENSION. THESE AND OTHER PROPOSALS ARE EVALUATED ACCORDING TO THE FOLLOWING CRITERIA: DO THEY RETAIN, MODIFY, OR ELIMINATE PROBATION AND PAROLE; DO THEY CONTROL UNWARRANTED JUDICIAL DISPARITY; DO THEY DEAL ADEQUATELY WITH PROBLEMS OF PROSECUTORIAL DISCRETION AND PLEA BARGAINING; DO THEY DELIVER CONTROL TO APPROPRIATE PERSONS; CAN THEY RESPOND TO CHANGING CONDITIONS; DO THEY ALLOW LOCAL AUTONOMY; DO THEY ESTABLISH APPROPRIATELY SEVERE SENTENCES; AND DO THEY ASSURE JUSTICE. THE EXAMINATION FOUND FLAWS IN EACH PROGRAM BUT ON BALANCE SHOWED THE SENTENCING GUIDELINES SYSTEM TO PROVIDE A RATIONAL CONTROL OF THE SENTENCING PROCESS THAT ACHIEVES UNIFORMITY WHILE ALLOWING GUIDED DISCRETION WHEN THE SITUATION DEMANDS IT. AN EXAMINATION OF THE MICHIGAN PROGRAMS FOUND THEM WANTING IN THEORY AND DESIGN. POLICYMAKERS ARE ADVISED TO RECONSIDER SENTENCING PLANS AFTER STUDYING THE THEORY OF SENTENCING GUIDELINES AND ITS APPLICATION IN VARIOUS JURISDICTIONS.