TOWARD A NEW SYSTEM OF CRIMINAL SENTENCING - LAW WITH ORDER

• NCJ Number: 59112
• Journal: American Criminal Law Review Volume: 16 Issue: 4 Dated: (SPRING 1979) Pages: 353-382
• Author(s): E M KENNEDY
• Date Published: 1979
• Length: 30 pages
• Corporate Author: American Bar Assoc
• Sale Source: UMI Dissertation Services
• Language: English
• Country: United States of America

Annotation

BECAUSE OF THE FAILURE OF TRADITIONAL SENTENCING PRACTICES TO PROVIDE FAIR TREATMENT TO OFFENDERS, AN INNOVATIVE APPROACH TO SENTENCING IS ADVOCATED WHICH CURBS JUDICIAL DISCRETION.

Abstract

THE DISPARITY IN SENTENCING OF PRISONERS IS CONSIDERED BY SENATOR EDWARD KENNEDY TO BE THE MAJOR FLAW IN THE EXISTING FEDERAL CRIMINAL JUSTICE SYSTEM. ALTHOUGH THE CORRECTION OF THE ARBITRARY AND CAPRICIOUS METHODS OF SENTENCING WILL NOT CURE ALL PROBLEMS CONFRONTING CRIMINAL JUSTICE ADMINISTRATORS, SENTENCING MUST STILL BE MADE FAIR AND MORE CERTAIN. THE FEDERAL CRIMINAL CODE REFORM ACT OF 1978 WOULD IMPROVE FEDERAL SENTENCING PRACTICES THROUGH THE CONTROL OF JUDICIAL DISCRETION, THE ELIMINATION OF INDETERMINATE SENTENCES, THE PHASING OUT OF PAROLE RELEASE, AND THE RESTRUCTURING OF CRIMINAL CODES. FEDERAL JUDGES HAVE BEEN ACTING WITHOUT ANY GUIDELINES OR APPELLATE REVIEW, AND FEDERAL LAW CONFERS UNLIMITED DISCRETION ON THE SENTENCING JUDGE TO IMPOSE A SENTENCE, AND ALLOWS THE PAROLE BOARD WIDE DISCRETION ON DETERMINING A RELEASE DATE. UNDER THE PROPOSED REFORM ACT, A UNITED STATES SENTENCING COMMISSION WOULD PROVIDE GUIDELINES ON THE BASIS OF THE REHABILITATIVE, DETERRING, AND PUNITIVE PURPOSES OF THE SENTENCE. FLEXIBILITY WOULD REMAIN, BUT DEVIATIONS FROM THE GUIDELINES WOULD REQUIRE SPECIFIC EXPLANATIONS FROM THE COURT. SENTENCES WOULD BE SUBJECT TO APPELLATE REVIEW, AND DETERMINATE SENTENCES WOULD BE REQUIRED IN MOST CRIMINAL CASES. THE PROPOSED ACT WOULD ELIMINATE THE DIFFERENTIAL COMPUTATION OF GOOD TIME ON THE BASIS OF THE LENGTH OF THE PRISON TERM. INSTEAD, THERE WOULD BE A UNIFORM MAXIMUM RATE OF 3 DAYS A MONTH FOR ALL TIME IN PRISON BEYOND THE FIRST YEAR. PAROLE RELEASE COULD ONLY BE USED IN THE RARE CASES IN WHICH A SENTENCE WAS WHOLLY OR PARTIALLY INDETERMINATE. A LIBRARY OF CONGRESS STUDY ESTIMATES THAT UNDER THE REFORM ACT THE AVERAGE IMPOSED SENTENCES WOULD BE ONE-THIRD THE LENGTH OF SENTENCES OTHERWISE SUBJECT TO PAROLE RELEASE. FOOTNOTES AND TABULAR DATA ARE PROVIDED.