NCJ Number
60984
Date Published
1979
Length
122 pages
Annotation
ISSUES CONCERNING PROSECUTORIAL DISCRETION WHICH WERE LEFT UNRESOLVED BY S. 1437 ARE DISCUSSED IN THIS TECHNICAL SUPPLEMENT TO THE REPORT TO THE FEDERAL JUDICIAL CENTER.
Abstract
WITHIN THE DETAILED STATUTORY FRAMEWORK ESTABLISHED BY S. 1437, MANY ISSUES HAVE BEEN LEFT UNRESOLVED, INCLUDING THE ALLOCATION OF DISCRETION CONCERNING PRISON SENTENCES FOR NONVIOLENT FIRST OFFENDERS, EARLY RELEASE, THE RANGE OF OFFENSES AND OFFENDER INFORMATION, AND THE EFFECT OF AGGRAVATING OR MITIGATING CIRCUMSTANCES. ALTHOUGH S. 1437 APPEARS TO CONTEMPLATE THAT NEARLY ALL CONCEIVABLE OFFENSE AND OFFENDER VARIABLES WILL BE CONSIDERED IN ESTABLISHING CATEGORIES AND GUIDELINES, THE COMPLEXITY OF GIVING APPROPRIATE WEIGHT TO EVERY FACTOR SUGGESTS THAT THE SENATE'S EXPECTATIONS MAY PROVE UNATTAINABLE IN PRACTICE. SINCE THE BILL ALSO WOULD PERMIT THE SENTENCING JUDGE TO FORECLOSE EARLY RELEASE ON PAROLE, THE JUDGE'S UNRESTRICTED POWER TO DETERMINE THE PRISON TERM SERVED WOULD ACTUALLY BE GREATER UNDER S. 1437 THAN IT IS IN COMPARABLE SITUATIONS UNDER CURRENT LAW. GUIDELINE MODELS ARE POSTULATED IN WHICH THE OPEN ISSUES ARE RESOLVED EITHER BY CONSISTENTLY PRESERVING OR BY CONSISTENTLY RESTRICTING JUDICIAL DISCRETION. SOME OF THE MODELS ALSO RESTRICT PROSECUTORIAL DISCRETION. GUIDELINES INCLUDE A MODEL WHICH MAXIMIZES JUDICIAL DISCRETION AND ONE WHICH MINIMIZES JUDICIAL AND PROSECUTORIAL DISCRETION, WITH GUILTY PLEA DISCOUNTS BEING AUTHORIZED. THE IMPLICATIONS OF THE MODELS ARE DISCUSSED WITH EMPHASIS ON THE IMPACT OF S. 1437 UPON THE BEHAVIOR OF PROSECUTORS, DEFENSE COUNSEL, AND JUDGES. RESEARCH ON SENTENCING DISPARITIES IS SUGGESTED. APPENDED MATERIALS EXAMINE THE MODELS IN DETAIL AND STATE THE PAROLE RELEASE GUIDELINES. FOR VOLUME 1, SEE NCJ-60983. (TWK)