NCJ Number
61832
Journal
Hofstra Law Review Volume: 7 Issue: 2 Dated: (WINTER 1979) Pages: 407-416
Date Published
1979
Length
10 pages
Annotation
ARGUMENTS AGAINST IMPRISONMENT AND FOR PROBATION AS A PREFERRED SENTENCE ARE PRESENTED AND VARIOUS MODELS FOR DETERMINING WHEN TO IMPRISON ARE PROVIDED.
Abstract
THE SENATE BILL S. 1437, WHICH PROVIDES FOR THE ESTABLISHMENT OF FEDERAL SENTENCING GUIDELINES THROUGH A SENTENCING COMMISSION, ERRS IN NOT INCLUDING A PRESUMPTION IN FAVOR OF PROBATION OVER IMPRISONMENT. THE AMERICAN BAR ASSOCIATION'S PROJECT ON THE ADMINISTRATION OF CRIMINAL JUSTICE PROVIDES A COMPREHENSIVE LIST OF THE REASONS WHY PROBATION IS PREFERABLE TO IMPRISONMENT: (1) IT MAXIMIZES THE LIBERTY OF THE INDIVIDUAL WHILE VINDICATING THE AUTHORITY OF THE LAW AND EFFECTIVELY PROTECTING THE PUBLIC FROM FURTHER VIOLATIONS OF LAW; (2) IT AFFIRMATIVELY PROMOTES THE REHABILITATION OF THE OFFENDER BY CONTINUING NORMAL COMMUNITY CONTACTS; (3) IT AVOIDS THE NEGATIVE EFFECTS OF CONFINEMENT WHICH COMPLICATE THE REINTEGRATION OF THE OFFENDER INTO THE COMMUNITY; (4) IT GREATLY REDUCES THE FINANCIAL COST TO THE PUBLIC TREASURY OF AN EFFECTIVE CORRECTIONAL SYSTEM; AND (5) IT MINIMIZES THE IMPACT OF THE CONVICTION UPON INNOCENT DEPENDENTS OF THE OFFENDER. A PRESUMPTION AGAINST INCARCERATION DOES NOT MEAN THAT CERTAIN OFFENDERS SHOULD NOT BE SENT TO PRISON. THE AMERICAN LAW INSTITUTE'S MODEL PENAL CODE PROVIDES THAT IMPRISONMENT SHOULD BE IMPOSED ONLY IF THE NATURE AND CIRCUMSTANCES OF THE CRIME AND THE HISTORY, CHARACTER, AND CONDITION OF THE DEFENDANT WOULD DICTATE THAT IMPRISONMENT IS NECESSARY FOR PROTECTION OF THE PUBLIC. A PRESUMPTION IN FAVOR OF PROBATION WRITTEN INTO FEDERAL SENTENCING LEGISLATION WOULD NOT BE UNDULY RESTRICTIVE UPON THE FREEDOM OF A SENTENCING COMMISSION IN THE DEVELOPMENT OF SENTENCING GUIDELINES. FOOTNOTES ARE PROVIDED. (RCB)