NCJ Number
60065
Journal
UCLA Law Review Volume: 26 Issue: 4 Dated: (APRIL 1979) Pages: 753-804
Date Published
1979
Length
52 pages
Annotation
THE ROLE OF APPELLATE COURTS IN GUIDING DISPOSITIONAL POLICYMAKING AND LEGITIMATING THE ROLES OF VARIOUS DISPOSITIONAL DECISIONMAKERS IN LIEU OF LEGISLATIVELY MANDATED SENTENCING IS DISCUSSED.
Abstract
LEGISLATIVE ATTEMPTS TO MODIFY THE DISCRETIONARY ASPECTS OF SENTENCING AND PAROLE THROUGH MANDATED SENTENCING ARE LARGELY BASED ON SIMPLISTIC CONCEPTIONS OF THE INTERRELATIONSHIP OF THE VARIOUS COMPONENTS OF THE CRIMINAL JUSTICE PROCESS. WHAT IS NEEDED IS A LEGAL FRAMEWORK FOR DETERMINING THE LIMITS OF THE POLICYMAKING ROLE OF PARTICULAR OFFICIALS IN THE DISPOSITION PROCESS. APPELLATE COURTS SHOULD PERFORM AN IMPORTANT ROLE IN THIS EFFORT. MANDATORY SENTENCES FOR 'ILLEGAL' GUN POSSESSION, FOR EXAMPLE, RAISE FUNDAMENTAL QUESTIONS FOR LEGISLATURES AND COURTS ABOUT THE ROLE OF POLICE IN THE DISPOSITION PROCESS. IN THE DEFINITION OF THE ILLEGAL GUN POSSESSION OFFENSE, APPELLATE COURTS SHOULD RECOGNIZE THE IMPLICIT LEGISLATIVE DELEGATION TO POLICE OF A CRIME PREVENTION FUNCTION. FURTHER, APPELLATE COURTS MUST ACKNOWLEDGE THEIR OWN POWER TO LIMIT THE CRIME PREVENTION ROLE OF POLICE THROUGH A VARIETY OF LEGAL DOCTRINES. APPELLATE COURTS MUST ALSO DEVELOP SYSTEMATIC THEORIES OF SOCIAL CONTROL; FOR EXAMPLE, THEY MUST DEVELOP SENTENCING POLICY FOR DRUG OFFENSES IN LIGHT OF A PERSPECTIVE ON THE APPROPRIATE ROLE OF THE CRIMINAL PROCESS IN THE SOCIAL CONTROL OF DRUG ABUSE. PROSECUTORS ARE THE KEY POLICYMAKERS UPON WHOM APPELLATE COURTS SHOULD FOCUS. TWO TYPES OF SENTENCING REFORMS LIKELY TO DOMINATE PUBLIC DEBATE ARE THE ELIMINATION OF PAROLE IN ORDER TO MAKE SENTENCES MORE DEFINITE AND LEGISLATIVE DELEGATION OF SPECIFIC RULEMAKING POWER TO COMMISSIONS AND STUDY GROUPS. RATHER THAN ELMINATING PAROLE, COURTS, SHOULD DEFINE THE UNIQUE DISPOSITIONAL ROLE OF PAROLE BOARDS TO ASSESS AND EVALUATE INDIVIDUAL RISKS. THE ESTABLISHMENT OF SENTENCING COMMISSIONS IS UNWORKABLE BECAUSE THEY LACK THE MORAL AUTHORITY AND PERSPECTIVE NECESSARY TO FORMULATE DISPOSITIONAL POLICY THAT RELATES TO THE INDIVIDUALS INVOLVED IN THE CRIMINAL PROCESS. FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED---RCB)