NCJ Number
46819
Date Published
1978
Length
6 pages
Annotation
THE MOVEMENT TOWARD A LESS DISCRETIONARY JUDICIARY IS DESCRIBED AND CRITICIZED WITH REGARD TO PROPOSALS FOR ALTERNATIVE SENTENCING MANDATES.
Abstract
IN THE JUDICIAL BRANCH OF THE CRIMINAL JUSTICE SYSTEM, FLAT-TIME SENTENCING AND MANDATORY SENTENCING ARE BEING CONSIDERED AS MEANS TO REDUCE SENTENCE DISPARITY AND RESTORE EQUITY AND TRUST TO THE ADMINISTRATION OF JUSTICE. IT IS ARGUED THAT IN THE AFTERMATH OF FAILURE OF INDETERMINATE SENTENCES, A MOVEMENT IS UNDERWAY TO ADOPT FLAT-TIME AND MANDATORY SENTENCING PROPOSALS -- AN EFFORT AIMED AT ENDING SENTENCING DISPARITY BY TAKING DISCRETIONARY POWERS AWAY FROM JUDGES AND LODGING THEM INSTEAD WITH STATE LEGISLATURES. THIS THEORY OF SENTENCING REFORM AND THE PRACTICES OF FLAT-TIME AND MANDATORY SENTENCING ARE EXAMINED AND CRITICIZED WITH REGARD TO PERCEPTIONS OF THEIR INHERENTLY FLAWED METHODOLOGY. THE UNDERLYING IMPLICATION IN THESE PROPOSALS IS THAT JUDGES ARE UNABLE TO BE OBJECTIVE IN SENTENCING; HOWEVER, IT IS ARGUED THAT THESE PROPOSALS FOR SENTENCING REFORM ERR IN THEIR RELIANCE UPON A PRIORI ESTABLISHMENT OF THE RIGHT OR DESERVED SENTENCE WITH LITTLE OR NO FACTUAL SUPPORT. IT IS ARGUED THAT DISCRETIONARY DECISIONS ARE NECESSARY IF JUSTICE IS TO BE HUMANELY APPLIED. IDEALLY, THE SYSTEM OF STRICT LEGISLATIVE GUIDELINES IMPLICIT IN PROPOSLAS FOR MANDATORY MINIMUM SENTENCING AND NO-PAROLE OR FLAT-TIME SENTENCING WOULD ELIMINATE HUMAN ERROR, BUT AT THE SAME TIME, JUDICIAL SENSITIVITY AS A PREREQUISITE TO INDIVIDUAL JUSTICE WOULD BE SACRIFICED. RATHER THAN ABANDON JUDICIAL DISCRETION, A SYSTEM OF STRUCTURED DISCRETION IS PROPOSED, AND THE ADOPTION OF A SELF-MONITORING PROCESS TO BE DESIGNED BY THE JUDICIARY ITSELF IS URGED. A PROCESS FOR THE ARTICULATION OF FEASIBLE SENTENCING GUIDELINES IS DISCUSSED, AND AVENUES OF IMPLMENTATION ARE SUMMARIZED. A TABLE PRESENTING THE SUGGESTED SENTENCING GUIDELINES DEVELOPED FOR DENVER, COLORADO, IS PROVIDED. NOTES AE PROVIDED. (KBL)