SENTENCING - LEGISLATIVE RULE VERSUS JUDICIAL DISCRETION (FROM NEW DIRECTIONS IN SENTENCING, P 51-69, 1980, BY BRIAN A GROSMAN - SEE NCJ-71049)

• NCJ Number: 69399
• Author(s): D R CRESSEY
• Date Published: 1980
• Length: 19 pages
• Sale Source: Butterworth
• Language: English
• Country: Canada

Annotation

LEGISLATIVE ADVOCACY OF FIXED SENTENCING IN THE FACE OF ITS INCREASING DOMINANCE OVER THE COURTS IS CONTRASTED WITH THE DISCRETIONARY POWERS AND EXPERTISE EXERCISED BY THE JUDICIARY IN THE SENTENCING PROCESS.

Abstract

THE CONTEMPORARY DEBATE ABOUT SENTENCING IS VIEWED AS COUNTERACTION BETWEEN TWO PRINCIPLES: (1) THE DETERRENCE PRINCIPLE, WHICH MANDATES PUNISHMENT FOR CRIMINAL ACTS; AND (2) THE ADJUSTMENT PRINCIPLE, WHICH DICTATES THAT PUNISHMENTS SHOULD SOMETIMES BE ADJUSTED TO THE CIRCUMSTANCES OF THE OFFENSE AND THE CHARACTER OF THE OFFENDER. THE CURRENT TREND TOWARD FIXED AND DEFINITE SENTENCES FAVORED BY LEGISLATURES AND GOVERNMENT BUREAUCRACIES IS CONTRASTED WITH TENDENCIES TOWARD RISK, EXPERIMENTATION, AND EQUITY IN SENTENCING FAVORED BY JUDGES AND OTHER EXPERTS. FIVE PRINCIPAL CONSIDERATIONS ARE BEHIND THE CURRENT TREND TOWARD LEGISLATIVE DOMINANCE OF THE JUDICIAL PROCESS: (1) THE GENERAL GROWTH OF BUREAUCRACY AS SOCIETY BECOMES MORE COMPLEX, (2) DISDAIN OF ELITIST GOVERNMENT PROCEDURES WHICH FAVOR THE RICH AND POWERFUL AND DISCRIMINATE AGAINST THE POOR AND WEAK, (3) A BUREAUCRATIC DRIVE TOWARD UNIFORM POLICIES WHICH IS NOW BEING APPLIED TO THE JUDICIARY, (4) GROWING FEAR OF CRIME AND CRIMINALS STEMMING FROM RISING CRIME RATES, AND (5) THE ASSIGNMENT OF MEASURABLE GOALS BY BUREAUCRATS IN PLACE OF THE UNMEASURABLE ONE OF THE QUALITY OF JUSTICE. HOWEVER, BUREAUCRATIZATION OF THE SENTENCING PROCESS WILL FALL SHORT OF ELIMINATING DISCRETIONARY DECISIONMAKING BECAUSE LAWMAKERS CANNOT MANDATE THE ENFORCEMENT OF ALL LAWS WITH EQUAL VIGOR, DUE TO THE HUMAN LIMITATIONS AND THE LACK OF SUFFICIENT MANPOWER AND MONEY; HISTORY HAS DEMONSTRATED THE FUTILITY OF TRYING TO ELIMINATE DISCRETIONARY DECISIONMAKING FROM THE CRIMINAL JUSTICE PROCESS, AND ALL CRIMINAL LAWS ARE QUITE VAGUE AND REQUIRE SOME INTERPRETATION TO DETERMINE THE DEGREE OF GUILT. ALSO, JUDGES CANNOT BE COMPLETELY SUBJECTED TO LEGISLATIVE FIAT BECAUSE JUDGES 'MAKE' LAW BY CITING APPROPRIATE LEGAL PRECEDENT AS JUSTIFICATION FOR THE DECISIONS THEY INITIALLY REACH, RATHER THAN BASING THOSE DECISIONS ON THE LAW IN THE FIRST INSTANCE. A JUDICIAL REVERSION TO FIXED SENTENCING AS A RESULT OF LEGISLATIVE DICTATES WILL MEAN MORE INJUSTICE AND NOT LESS. A TOTAL OF 29 NOTES ARE PROVIDED.