CRIMINAL SENTENCING - MISUNDERSTANDINGS AND MISAPPLICATIONS

• NCJ Number: 61973
• Journal: Federal Probation Volume: 43 Issue: 2 Dated: (JUNE 1979) Pages: 20-28
• Author(s): J L SCHAEFER
• Date Published: 1979
• Length: 9 pages
• Corporate Author: Administrative Office of the United States Courts
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America

Annotation

SOME OF THE MISUNDERSTOOD AND MISAPPLIED ASPECTS OF SENTENCING ARE DISCUSSED, INCLUDING PROBATION, SPLIT SENTENCES, COMMENCEMENT OF SENTENCE, AND MODIFICATION OF SENTENCE.

Abstract

THE COMPLEXITIES OF CRIMINAL SENTENCING ARE ILLUSTRATED REPEATEDLY IN NUMEROUS MISUNDERSTOOD PRACTICES IN THE FEDERAL COURTS TODAY. FOR EXAMPLE, BECAUSE THE SOURCE AND NATURE OF THE AUTHORITY TO GRANT PROBATION IS OFTEN MISINTERPRETED, MANY ILLEGAL SENTENCES HAVE BEEN ORDERED. PROBATION BECAME CONSTITUTIONALLY PERMISSIBLE IN 1925 WITH ENACTMENT OF THE PROBATION ACT. THE SUPREME COURT ESTABLISHED THAT THE SENTENCING COURT'S ABILITY TO GRANT PROBATION IS LIMITED TO THE TIME BEFORE SERVICE OF SENTENCE COMMENCES; THIS RULE STILL APPLIES TODAY. CHANGE IN THE LENGTH OR CONDITIONS OF PROBATION MAY BE MADE AT ANY TIME. FEDERAL COURTS HAVE GENERALLY TREATED PROBATION AS A SENTENCE ALTHOUGH TECHNICALLY IT IS NOT. ANOTHER COMMONLY MISUNDERSTOOD ASPECT OF SENTENCING IS THE SPLIT SENTENCE, A FORM OF PROBATION WHICH ALLOWS FOR IMPRISONMENT IN A JAIL-TYPE INSTITUTION FOR UP TO 6 MONTHS FOLLOWED BY PROBATION FOR UP TO 5 YEARS ON A SINGLE COUNT INDICTMENT. SPLIT SENTENCES ARE APPLICABLE ONLY TO SINGLE COUNT INDICTMENTS AND MAY BE IMPOSED UPON REVOCATION OF PROBATION. UNDER THE SPLIT-SENTENCE PROVISIONS, THE COURT CAN REDUCE THE PRISON TERM IMPOSED, ALTHOUGH THE SOURCE OF ITS POWER TO DO SO IS UNCLEAR. ONCE THE JUDGE IMPOSES SENTENCE, THE COURT LOSES CONTROL OVER MOST ASPECTS OF THE ADMINSTRATION OF THE SENTENCE. NONETHELESS, THE IMPRESSION IS OFTEN MISTAKENLY MAINTAINED THAT THE COURT CONTROLS THE FUNCTIONS OF ENSURING AWARD OF CREDIT FOR TIME SERVED PRIOR TO CONVICTION AND HANDLING ASPECTS OF CONCURRENT SENTENCING. THE COURT CAN MODIFY PROBATION ANY TIME, WHEREAS THE AUTHORITY TO MODIFY A FEDERAL TERM OF IMPRISONMENT IS MUCH MORE MODEST, BEING BASED PRIMARILY ON THE RULES OF CRIMINAL PROCEDURES. TWO CASES THAT CLARIFY ISSUES RELATED TO SENTENCE MODIFICATION ARE CURRENTLY PENDING BEFORE THE SUPREME COURT. UNDER RULE 35 (B), A RECENT AMENDMENT TO THE RULES OF CRIMINAL PROCEDURE, ILLEGAL SENTENCES MAY BE CORRECTED AT ANY TIME, AND SENTENCES MAY BE REDUCED UNDER CERTAIN CIRCUMSTANCES, USUALLY WITHIN 120 DAYS OF SENTENCE IMPOSITION. FOOTNOTES ARE INCLUDED. (LWM)