NCJ Number
136361
Journal
Federal Probation Volume: 55 Issue: 4 Dated: (December 1991) Pages: 4-9
Date Published
1991
Length
6 pages
Annotation
Attorneys have failed to capitalize on judicial discretion opportunities contained in the offense-related element of Federal sentencing guidelines promulgated in 1987.
Abstract
Critics of the guidelines say they generally place excessive restrictions on judicial discretion and specifically reduce the judge's role in operating a computerized sentencing mechanism. The author contends, however, that these criticisms fail to appreciate the significant discretion that the sentencing judge retains under the guidelines and that attorneys have yet to take full advantage of the mechanisms for judicial discretion built into the guidelines. Even discussions of the offender-related element, i.e., the defendant's criminal record, which tend to dominate sentencing hearings, rarely go beyond defense counsel's appeal for a merciful interpretation of the defendant's record. These calls for mercy generally fail to present arguments framed in the retributive or incapacitationist terms demanded by the guidelines. Attorneys should familiarize themselves with judicial discretion standards contained in the guidelines and refer to the standards in arguments during sentencing hearings. The ability of the sentencing guidelines to fulfill the goals of honesty, uniformity, and proportionality in sentencing stands and falls with the defense counsel's ability to enunciate relevant arguments during the sentencing hearing. Relevant purposes of the sentencing guidelines are discussed as well as factors contributing to the establishment and imposition of sentences under the guidelines. 40 footnotes