NCJ Number
46319
Journal
State Government Dated: (WINTER 1977) Pages: 7-11
Date Published
1977
Length
5 pages
Annotation
PROPOSALS FOR NARROWING SENTENCING DISCRETION THROUGH THE LEGISLATION OF DEFINITE SENTENCING ARE DISCUSSED.
Abstract
DEFINITE SENTENCING ATTEMPTS TO NARROW THE RANGE OF DISCRETION ALLOWED JUDGES IN SETTING SENTENCES INVOLVING TERMS OF IMPRISONMENT WHILE ALLOWING THEM TO RETAIN THEIR DISCRETION TO PRESCRIBE PENALTIES OTHER THAN IMPRISONMENT, WHERE APPROPRIATE. IT IS DISTINGUISHED FROM MANDATORY SENTENCING, WHICH IS DIRECTED AT ELIMINATING JUDICIAL AND PAROLE BOARD DISCRETION BY REQUIRING IMPRISONMENT FOR SELECTED CATEGORIES OF OFFENSES. PROPONENTS OF DEFINITE SENTENCING BELIEVE THAT IT HAS GREATER DETERRENT VALUE THAN INDETERMINATE SENTENCING BECAUSE OF ITS GREATER CERTAINTY AND PREDICTABILITY OF PUNISHMENT. OTHER SUPPORTERS ASSUME THAT NARROWED SENTENCING DISCRETION WILL REDUCE DISPARITIES WHICH EXIST IN AN INDETERMINATE SENTENCING SYSTEM. SEVERAL STATES HAVE ALREADY PASSED DEFINITE SENTENCING LEGISLATION, AND OTHERS ARE CONSIDERING IT. THREE CATEGORIES OF NARROWING SENTENCING DISCRETION HAVE EVOLVED IN THE STATE DECISIONS: THE LEGISLATIVE, JUDICIAL, AND ADMINISTRATIVE APPROACHES. THEY ARE DIFFERENTIATED ACCORDING TO HOW THEY DEAL WITH DISCRETION IN TERMS OF WHO HAS IT, IN WHAT AMOUNTS, AND AT WHAT POINT IT IS EXERCISED. WITH THE LEGISLATIVE APPROACH, THE STATE LEGISLATURE FIXES TERMS OF IMPRISONMENT FOR OFFENSES WITHIN EACH FELONY CLASS WHICH THE TRIAL JUDGE MUST IMPOSE, IF HE DETERMINES IMPRISONMENT IS NECESSARY. ONLY A SMALL AMOUNT OF DEVIATION IS ALLOWED. WITH THE JUDICIAL APPROACH, THE LEGISLATURE SETS A MAXIMUM TERM FOR EACH FELONY WITHIN WHICH THE JUDGE MUST IMPOSE A TERM OF FIXED DURATION, IF HE DECIDES TO IMPOSE IMPRISONMENT. HE RETAINS HIS DISCRETION TO SENTENCE AN OFFENDER TO A FIXED TERM UP TO THAT MAXIMUM. BOTH THE LEGISLATIVE AND THE JUDICIAL APPROACHES ELIMINATE THE POSSIBILITY OF PAROLE RELEASE. THE ADMINISTRATIVE APPROACH ACTS TO NARROW DISCRETION AT THE PAROLE END OF THE SYSTEM BY ESTABLISHING IN ADVANCE DEFINITE PAROLE RELEASE RANGES AND DATES ACCORDING TO THE NATURE OF THE OFFENSE AND WITH RESPECT TO THE OFFENDER'S PERSONAL BACKGROUND AND CIRCUMSTANCES. MANY OPPONENTS OF DEFINITE SENTENCING SEE IT AS A REACTIONARY PROPOSAL TO RESCIND CORRECTIONAL REFORMS AND RETURN TO A SYSTEM WITH NO POSSIBILITY OF INDIVIDUALIZED TREATMENT OF OFFENDERS. SEVERAL COMMON MISCONCEPTIONS ABOUT DEFINITE SENTENCING ARE THEREFORE EXPLAINED AND CLARIFIED. THESE ARE THAT: (1) INCARCERATION WILL BE MANDATORY; (2) SENTENCE LENGTHS WILL BE LONGER; (3) PAROLE BOARDS AND PAROLE SUPERVISION WILL BE ABOLISHED; (4) DEFINITE TERMS OF IMPRISONMENT WILL BE MANDATORY MINIMUMS; (5) DEFINITE SENTENCING WILL DRASTICALLY REDUCE OR ELIMINATE CORRECTIONAL REHABILITATION PROGRAMS; (6) THE SCOPE OF THE LEGISLATIVE APPROACHES WILL COVER JUVENILE AS WELL AS ADULT OFFENDERS; AND (7) CORRECTIONAL POPULATIONS WILL SPIRAL EVEN BEYOND RECENT INCREASES EXPERIENCED BY MANY STATES.