NCJ Number
76754
Journal
Women's Rights Law Reporter Volume: 6 Issue: 1-2 Dated: (Fall/Winter 1979-1980) Pages: 85-106
Date Published
1980
Length
22 pages
Annotation
This note discusses the equal protection standards developed in the area of gender discrimination, analyzes the reasons why adherence to the discretionary sentencing system limits the effectuation of these standards, and explores alternatives.
Abstract
Until the late 1960's, the argument that disparate sentencing violated the equal protection clause of the Constitution was uniformly rejected by the courts. However, in 1968, the United States District Court for the District of Connecticut decided Robinson v. York and the Pennsylvania Supreme Court decided Commonwealth v. Daniel, both landmark decisions which held State statutes mandating sex-based disparate sentencing to be violative of the equal protection clause. In 1973, the New Jersey Supreme Court followed suit in 'State v. Chambers.' As a consequence of these three cases, statutory sentencing schemes which treat men and women differently are not likely to withstand challenge. Nevertheless, the broad discretionary power vested in sentencing judges and parole boards permits gross and irremediable violations of equal protection. Violations are virtually invisible; only the decision itself can be scrutinized, and the means through which the decision was reached remain hidden. It is suggested that the solution to violation of the equal protection clause is to limit the discretionary power of sentencing judges and parole boards. This can be achieved by providing a mechanism to review sentencing and related decisions and by limiting the factors which may lawfully be considered. The proposed limitation demands some modification of the rehabilitative model. The judge or parole board should not be permitted to delve into every aspect of the offender's background and personality. Reviewing sentences and parole decisions, structuring discretion, and maximizing consistency through use of guidelines are recommended to improve the present system of discriminatory individualized sentencing. The note provides 234 footnotes.