NCJ Number
53668
Journal
Maryland Law Review Volume: 37 Issue: 2 Dated: (1977) Pages: 267-285
Date Published
1977
Length
19 pages
Annotation
ISSUES OF SENTENCING REFORM ARE DISCUSSED BY THE UNIVERSITY OF CHICAGO'S DEAN OF LAW AND CRIMINOLOGY IN REFERENCE TO PROPOSED LEGISLATION AND ARGUMENTS CONCERNING SENTENCE DISPARITY, DISCRETION, AND PAROLE.
Abstract
FOUR SENTENCING ISSUES ARE DISCUSSED: (1) DISPARITY, INDIVIDUALIZATION, AND EQUALITY; (2) PAROLE AND ITS DOUBTFUL FUTURE; (3) LEGISLATIVELY FIXED TERMS; AND (4) DISTRIBUTING SENTENCING DISCRETION. IN THE AREA OF DISPARITY, INDIVIDUALIZATON, AND EQUALITY, IT IS COMMONLY ARGUED THAT JUDGES ACCOUNT FOR THE UNJUST VARIATION THAT EXISTS PRESENTLY IN SENTENCING. IT IS SUGGESTED THAT THE ALTERNATIVE OF FIXED SENTENCES CANNOT DEAL WITH THE UNIQUE CRIME-TO-CRIMINAL RELATIONSHIP. THE JUDICIARY SHOULD NOT BE STRIPPED OF ITS SENTENCING POWERS. THE ABOLITION OF PAROLE IS ADVOCATED. THERE ARE SIX TRADITIONAL ARGUMENTS IN FAVOR OF PAROLE: (1) PAROLE BOARDS CAN FIND THE OPTIMUM MOMENT FOR RELEASE; (2) BOARDS CAN PROVIDE AN INCENTIVE FOR THE PRISONER'S REHABILITATION; (3) BOARDS CAN FACILITATE PRISON CONTROL AND DISCIPLINE; (4) BOARDS CAN SHARE SENTENCING RESPONSIBILITY TO MAXIMIZE DETERRENCE WHILE REDUCING TIME SERVED; (5) BOARDS CAN CONTROL THE SIZE OF THE PRISON POPULATION; AND (6) BOARDS CAN RECTIFY UNJUST DISPARITIES IN SENTENCING. THESE TRADITIONAL ARGUMENTS ARE DISPOSED OF AS DISCRETIONARY, ARBITRARY, UNJUST, AND EMPIRICALLY FALSE. THOSE IN FAVOR OF LEGISLATIVELY FIXING SENTENCES ARGUE THAT SUCH ACTION WOULD ELIMINATE SENTENCING DISCRETION. STRIPPING THE JUDGES OF THIS POWER, HOWEVER, WOULD ONLY SHIFT THE DISCRETIONARY POWER OVER TO THE PROSECUTOR WHO ULTIMATELY WOULD DECIDE WHICH CRIME WITH WHICH TO CHARGE AN OFFENDER. THE FOGEL PLAN AND THE HART-JAVITS BILL ARE NOT SEEN AS ADEQUATE ALTERNATIVES TO PRESENT DAY SENTENCING. FINALLY, THE KENNEDY BILL, WHICH PROPOSES TO DISTRIBUTE SENTENCING DISCRETION, IS ADVOCATED. THE BILL INVOLVES A LEGISLATIVE ATTEMPT TO PROVIDE UNIFORM CRITERIA FOR SENTENCING. FOOTNOTES WITH SOURCES ARE PROVIDED IN THE TEXT.