NCJ Number
67781
Journal
University of Pennsylvania Law Review Volume: 128 Issue: 4 Dated: (APRIL 1980) Pages: 733-828
Date Published
1980
Length
96 pages
Annotation
FOCUSING ON SENTENCING DISPARITIES IN THE FEDERAL COURTS, THIS ARTICLE EXPLORES THE PRINCIPAL DIFFICULTIES INVOLVED IN DEVELOPING CONSISTENT SENTENCES AND SUGGESTS AND EVALUATES A REFORM PROPOSAL.
Abstract
AN OVERVIEW IS PRESENTED OF THE DIFFERING APPROACHES TO SENTENCING REFORM SUGGESTED OR ADOPTED IN JURISDICTIONS ACROSS THE COUNTRY. THE ACTUAL ALLOCATION OF SENTENCING AUTHORITY IN THE FEDERAL COURTS IS ANALYZED, AND THE PROBLEMS OF INSTITUTIONAL DYNAMICS, WHICH COULD DEFEAT THE GOALS OF FEDERAL SENTENCING REFORM UNLESS EFFECTIVE CONTROL OF PROSECUTORIAL DISCRETION CAN BE ACHIEVED ARE TRACED. THE LONG-TERM SOLUTION TO SENTENCING DISPARITY AND OTHER AREAS OF PROSECUTORIAL ACTIVITY, IT IS SUGGESTED, MAY LIE IN THE DEVELOPMENT OF COMPREHENSIVE STANDARDS. HOWEVER, ONE PRACTICAL PROCESS IS EXAMINED WHICH MIGHT SERVE TO IMPOSE ORDER ON THE PROSECUTOR'S DE FACTO SENTENCING POWER-- 'REAL OFFENSE' SENTENCING. UNDER THIS APPROACH, JUDGES COULD OFFSET THE EFFECTS OF CHARGING DECISIONS BY IGNORING THE FORMAL OFFENSE OR CONVICTION. INSTEAD JUDGES DETERMINE THE CATEGORY OF OFFENSE, AS STATED IN SENTENCING GUIDELINES, THAT IS APPLICABLE FOR THE CASE AT HAND USING THEIR OWN CONCEPTION OF THE DEFENDANT'S CONDUCT. BECAUSE THIS 'REAL OFFENSE' APPROACH IS INEFFECTIVE IN A SYSTEM OF STRUCTURED DISCRETION AND WOULD COMPOUND THE UNFAIRNESS IT IS INTENDED TO REMEDY, AN ALTERNATIVE APPROACH IS EXAMINED. THE ALTERNATIVE INVOLVES FORMAL JUDICIAL CONTROL OF PROSECUTORIAL CHARGE-REDUCTION DECISIONS WITHIN A FRAMEWORK OF GUIDELINES. THESE GUIDELINES SHOULD PRESERVE THE PARTICIPATORY DIMENSION OF PROCEDURAL DUE PROCESS BY INCLUDING SAFETY-VALVE FEATURES THAT ENSURE FLEXIBILITY. FOOTNOTES ARE INCLUDED, AND THE APPENDIX PRESENTS MODEL CHARGE-REDUCTION AND SENTENCING GUIDELINES. (WJR)