SENTENCING REFORM AND PROSECUTORIAL POWER - A CRITIQUE OF RECENT PROPOSALS FOR 'FIXED' AND 'PRESUMPTIVE' SENTENCING

• NCJ Number: 45197
• Journal: University of Pennsylvania Law Review Volume: 126 Issue: 3 Dated: (JANUARY 1978) Pages: 550-577
• Author(s): A W ALSCHULER
• Date Published: 1978
• Length: 28 pages
• Sponsoring Agency: University of California; US Dept of Justice; US Dept of Justice NIJ Pub
• Corporate Author: University of Pennsylvania
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: THIS ARTICLE IS BASED ON A SPEECH DELIVERED AT THE CONFERENCE ON DETERMINATE SENTENCING IN BERKELEY, CALIFORNIA ON JUNE 2-3, 1977

Annotation

ISSUES SURROUNDING SENTENCING REFORM ARE EXAMINED, WITH A VIEW TOWARD THE TENDENCY OF REFORM PROPOSALS TO DISREGARD THE PROSECUTOR'S POWER TO FORMULATE CHARGES AND TO BARGAIN FOR GUILTY PLEAS.

Abstract

WHILE THE CENTRAL CONCERN OF MOST DISCUSSIONS OF SENTENCING HAS BEEN THE EXTENT OF THE DISCRETIONARY POWER EXERCISED BY CRIMINAL JUSTICE OFFICIALS, THE PRESENT DISCUSSION FOCUSES ON THE QUESTION OF WHERE SENTENCING DISCRETION SHOULD RESIDE. THREE SEPARATE DECISION POINTS IN THE CRIMINAL JUSTICE SYSTEM -- PAROLE, JUDICIAL DETERMINATION OF SENTENCE, AND PROSECUTORIAL PLEA NEGOTIATION -- ARE CONSIDERED. THE PURPOSES THAT ARE LIKELY TO BE SERVED BY VESTING DISCRETION AT EACH OF THESE POINTS ARE CONSIDERED, AND FUNCTIONAL INTERRELATIONSHIPS ARE EXPLORED. IT IS CONCLUDED THAT ELIMINATING OR RESTRICTING THE DISCRETIONARY POWERS OF PAROLE BOARDS AND TRIAL JUDGES IS LIKELY TO INCREASE THE POWERS OF PROSECUTORS AND THAT THESE POWERS ARE LIKELY TO BE EXERCISED WITHOUT EFFECTIVE LIMITS THROUGH THE PRACTICE OF PLEA BARGAINING. IT IS FURTHER CONCLUDED THAT THE SUBSTITUTION OF FIXED OR PRESUMPTIVE SENTENCES FOR THE DISCRETION OF JUDGES AND PAROLE BOARDS TENDS TO CONCENTRATE SENTENCING POWER IN THE HANDS OF OFFICIALS WHO ARE LIKELY TO ALLOW THEIR DECISIONS TO BE GOVERNED BY FACTORS IRRELEVANT TO THE PROPER GOALS OF SENTENCING. REFORMERS ARE URGED TO RECOGNIZE THAT THE IDEAL OF EQUAL JUSTICE IS THREATENED MORE BY THE PRACTICES OF PROSECUTORS THAN BY THOSE OF TRIAL JUDGES AND TO ADDRESS THE ISSUE OF PLEA BARGAINING. (AUTHOR ABSTRACT MODIFIED--LKM)