NCJ Number
62400
Date Published
1978
Length
15 pages
Annotation
THE FORM AND BASES OF SENTENCING REFORM PROPOSALS IN THE UNITED STATES ARE DISCUSSED.
Abstract
WITH THE DEMISE OF INDETERMINATE SENTENCING DUE TO A DISILLUSIONMENT WITH THE EFFECTIVENESS OF REHABILITATION PROGRAMS, RETRIBUTION HAS RETURNED AS A PRIMARY RATIONALE FOR SENTENCING PRACTICE IN THE UNITED STATES. AT THE SAME TIME, A CONCERN ABOUT SENTENCING DISPARITY HAS STEMMED FROM JUDICIAL DISCRETION IN SENTENCING. EFFORTS TO APPROACH EQUALITY IN SENTENCING, HOWEVER, DO NOT NECESSARILY LEAD TO GREATER JUSTICE IN SENTENCING. JUSTICE MUST BE INDIVIDUALIZED THROUGH A PRINCIPLED USE OF SENTENCING DISCRETION, WHICH WILL INEVITABLY LEAD TO SOME SENTENCING DISPARITY IN THE INTEREST OF CONSIDERING THE PARTICULAR CIRCUMSTANCES OF CASES INVOLVING THE SAME OFFENSE. REFORM PROPOSALS ATTEMPTING TO PULL TOGETHER ALL THE STRAINS OF REFORM IDEALS ARE THE HART-JARVIS AND KENNEDY-MCCLELLAN BILLS. BOTH BILLS ENVISAGE A SENTENCING COMMISSION WHICH WOULD DEVELOP PRINCIPLED STANDARDS TO GUIDE JUDICIAL SENTENCING DECISIONS. THE GREATEST DEFICIENCY OF THE HART-JARVIS BILL IS ITS REMOVAL OF OVERT SENTENCING DISCRETION FROM THE COURT, WITH A CONSEQUENT DISPLACEMENT OF INDIRECT SENTENCING DISCRETION TO THE PROSECUTOR, WHO WILL DECIDE UNDER WHICH CATEGORY OF OFFENSE TO PROSECUTE. THE KENNEDY-MCCLELLAN BILL IS TO BE PREFERRED BECAUSE IT DOES NOT SUFFER FROM THE AFOREMENTIONED DEFECT, ALTHOUGH IT CONTAINS INADEQUATE CHECKING MECHANISMS TO CONTROL JUDICIAL SENTENCING DECISIONS. FOOTNOTES ARE PROVIDED. (RCB)