Judicial Review - A Case for Sentencing Guidelines and Just Deserts (From Sentencing Reform - Experiments in Reducing Disparity, P 177-211, 1982, Martin L Forst, ed. - See NCJ-87442)

• NCJ Number: 87451
• Author(s): P A Ozanne
• Date Published: 1982
• Length: 35 pages
• Sale Source: Sage Publications, Inc
• Language: English
• Country: United States of America

Annotation

The author discusses reasons why judicial review has failed to reduce sentencing disparity and proposes sentencing guidelines as an alternative, asserting that a theory of just deserts must underlie any sentencing policy for it to effectively minimize disparity.

Abstract

Judicial review was an axiom of sentence law reform by the early 1970's, but only a limited number of States actually passed sentence review statutes. Courts in these jurisdictions generally have failed to regulate decisions or decrease disparity, primarily because their legislatures did not formulate a specific sentencing policy based on recognized theories of punishment and the appellate courts were unwilling to do so on their own. Since the competing theories of rehabilitation and just deserts focus on different factors in a criminal case, it is not surprising that sentencing disparity characterizes a penal system with no internally consistent statement of policy. However, two recent trends increase the prospects for appellate courts to assume a meaningful role in regulating sentences -- a consensus that the indeterminate sentencing system must be eliminated and increasing recognition that the rule of law must replace unstructured discretion. A purely determinate system has several drawbacks, whereas sentencing guidelines provide much of the determinacy of a flat-time system without its inflexibility and susceptibility to crimewave politics. Most systems make guidelines advisory, but a legislature could establish a commission with representatives from the criminal justice system and the community to create rules that would be binding. Judicial review is a natural ingredient in this system and could monitor the administrative rulemaking body. Moreover, the appellate courts could review sentences to determine if the guidelines were applied erroneously, could assess extraordinary sentences outside the guidelines' range, and review the guidelines themselves to determine compliance with public policy. In adopting sentencing guidelines, a legislature should choose the theory of just deserts as the basis for sentencing policy because of its intolerance for sentencing variation and limitations on the factors that can justify variations in sentences. Minnesota's new sentencing guidelines system is described to demonstrate the benefits of this method of reducing disparity. The article provides 27 footnotes, 13 case citations, and 45 references. See also NCJ-87442.