NCJ Number
45764
Journal
UCLA Law Review Volume: 25 Issue: 2 Dated: (DECEMBER 1977) Pages: 323-364
Date Published
1977
Length
42 pages
Annotation
THE PROBLEM OF DISPARITY IN SENTENCING RESULTING FROM JUDICIAL DISCRETION IS EXAMINED, AND A RECOMMENDATION IS MADE FOR GREATER ACCOUNTABILITY ON THE PART OF JUDGES IN DECIDING SENTENCES.
Abstract
CURRENT PRACTICE GIVES THE JUDGE GREAT DISCRETION IN THE IMPOSITION OF A SENTENCE. THIS INEVITABLY RESULTS IN INDIVIDUALIZED SENTENCING STANDARDS BASED ON THE FACTS OF THE CRIME, THE IMPRESSION GIVEN BY THE DEFENDANT ON THE WITNESS STAND, HEARSAY EVIDENCE, ALLEGED PRIOR CRIMINAL ACTIVITY FOR WHICH THE DEFENDANT WAS NEVER TRIED OR CONVICTED, THE COOPERATIVENESS OF THE ACCUSED, RESTITUTION MADE TO THE VICTIM, SENTENCES GIVEN TO OTHER DEFENDANTS, AND EVEN A 'CHANGE OF ATTITUDE.' IN ADDITION, THE OFFENDER'S BACKGROUND, FAMILY LIFE, SEXUAL INCLINATIONS, RELIGIOUS PREDISPOSTITIONS, AND OTHER INFORMATION COMMONLY INCLUDED IN PRESENTENCE REPORTS ARE OFTEN CONSIDERED. COURT CASES HAVE TESTED EACH OF THESE FACTORS, AND ALL HAVE BEEN FOUND VALID. CASE CITATIONS ARE GIVEN AND EXTENSIVELY FOOTNOTED. COURT CASES HAVE ALSO DETERMINED THAT CRITERIA MUST BE EXCLUDED IF THEY CONSTITUTE AN 'ABUSE OF DISCRETION' OR IF THEY ARE IN THEMSELVES UNCONSTITUTIONAL. THESE INCLUDED THE PENALIZING OF A DEFENDANT BECAUSE HE INSISTS ON A TRIAL, SENTENCING BASED ON RACIAL BACKGROUND, OR SUCH MECHANICAL PRACTICES AS GIVING THE MAXIMUM SENTENCE TO ALL DEFENDANTS REGARDLESS OF INDIVIDUAL CIRCUMSTANCES. THE PROBLEM OF DISPARITY IS DISCUSSED IN DETAIL. THE GOAL OF JUDICIAL DISCRETION IS TO INSURE INDIVIDUAL TREATMENT FOR INDIVIDUAL CASES; TREATING ALL DEFENDANTS EQUALLY WOULD ALSO BE DISCRIMINATORY. THE PROBLEM IS NOT DISPARITY OF SENTENCING BUT LACK OF ACCOUNTABILITY IN SENTENCING. AS A FIRST STEP TOWARD REMEDYING THIS SITUATION, IT IS SUGGESTED THAT THE JUDGE BE REQUIRED TO EXPLAIN HIS ACTIONS AS PART OF THE RECORD. THIS REQUIREMENT IS NOW ACCEPTED PROCEDURE FOR THE DENIAL OR REVOCATION OF PAROLE, REVOCATION OF PROBATION, IMPOSITION OF A HARSHER SENTENCE ON RETRIAL AFTER REVERSAL OF A PREVIOUS CONVICTION, FAILURE TO ORDER A PRESENTENCE REPORT WHEN SENTENCING, WAIVER OF STATUTORY EXCLUSIVE JURISDICTION OF JUVENILE COURT, AND IMPOSITION OF CONSECUTIVE SENTENCES. IT IS BECOMING ACCEPTED PRACTICE IN THE IMPOSITION OF THE DEATH PENALTY. SUCH ACCOUNTABILITY WOULD HELP TO ELIMINATE UNJUST SENTENCE DISPARITY. (GLR)