SENDING MEN TO PRISON - CONSTITUTIONAL ASPECTS OF THE BURDEN OF PROOF AND THE DOCTRINE OF THE LEAST DRASTIC ALTERNATIVE AS APPLIED TO SENTENCING DETERMINATIONS

• NCJ Number: 13495
• Journal: Cornell Law Review Volume: 58 Issue: 1 Dated: (NOVEMBER 1972) Pages: 51-89
• Author(s): R G SINGER
• Date Published: 1972
• Length: 39 pages
• Corporate Author: Cornell University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

INCARCERATION, AS OPPOSED TO LESS DRASTIC COMMUNITY OR PROBATIONARY ALTERNATIVES, SHOULD BE AFFIRMATIVELY JUSTIFIED BY THE GOVERNMENT AS A MATTER OF CONSTITUTIONAL LAW AS WELL AS SOUND PENAL THEORY.

Abstract

BRIEFLY STATED, THE DOCTRINE OF THE LEAST DRASTIC ALTERNATIVE REQUIRES THAT A STATE DEMONSTRATE A PARTICULAR LEGISLATIVE COURSE TO BE THE LEAST DRASTIC METHOD OF ACHIEVING A DESIRED END. THE SUPREME COURT IN EXPRESSING THIS PRINCIPLE HAS SPOKEN OF USING LESS DRASTIC MEANS OR METHODS THAT ARE NECESSARY TO EFFECTUATE THE STATE'S PURPOSE, BUT THE IMPORT OF THESE VARIOUS FORMULATIONS IS THE SAME - THE STATE MUST DEMONSTRATE THAT THE INFRINGEMENT UPON HUMAN LIBERTIES WHICH OCCURS IS UNAVOIDABLE IF THE PURPOSE OF THE STATE IS TO BE ACHIEVED. SENTENCING TODAY IS AN ARCHAIC PROCESS, OPERATING WITH OFTEN UNFAIR PROCEDURES AND UNCERTAIN GOALS. THE APPLICATION TO THIS PROCESS OF THE RULE OF THE LEAST DRASTIC ALTERNATIVE - THAT THE GOVERNMENT MUST PROVE A PARTICULAR ACTION IS NECESSARY TO EFFECTUATE A CLEAR GOVERNMENTAL INTEREST - WOULD BOTH SHIFT THE BURDEN OF JUSTIFYING IMPRISONMENT TO THE GOVERNMENT AND REQUIRE THE GOVERNMENT TO ARTICULATE CLEARLY THE RATIONALE FOR INCARCERATION. SINCE PENOLOGISTS AND APPARENTLY COURTS HAVE REJECTED ALL TRADITIONAL PENAL GOALS EXCEPT DETERRENCE AND REHABILITATION, AND SINCE AN EXAMINATION OF EMPIRICAL DATA SUGGESTS THAT GENERAL DETERRENCE, IS A FICTION, THE GOVERNMENT WOULD BEAR THE BURDEN EITHER OF DEMONSTRATING THAT THE INDIVIDUAL OFFENDER IS SO DANGEROUS THAT HE MUST BE SPECIALLY DETERREDINCAPACITATED-FOR AN ESPECIALLY LONG PERIOD, OR THAT HIS REHABILITATION CALLS FOR SOME PERIOD OF INCARCERATION. IF WE CANNOT IMMEDIATELY ABOLISH PRISONS, AS SEEMS CLEAR, THEN WE SHOULD AT LEAST ATTEMPT TO REDUCE THEIR POPULATIONS BY EMPLOYING ALTERNATE METHODS OF DEALING WITH THOSE WHOSE INCARCERATION IS UNJUSTIFIABLE. EMPLOYING PREFERENCES AND PRESUMPTIONS AGAINST IMPRISONMENT CAN DO THIS, AND THE LEAST DRASTIC ALTERNATIVE OFFERS ONE CLEAR PATH TO REACH SUCH A RESULT. (AUTHOR ABSTRACT)