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Sentencing: The Judge's ProblemJ A N U A R Y 1 9 6 0A New Yorker by birth, educated at DeWitt Clinton High School and FordhamUniversity, IRVING R. KAUFMAN has been internationally famous since 1951,when he pronounced on Julius and Ethel Rosenberg the first peacetime deathsentences for espionage in the history of the United States. He was namedjudge of the United States district court for the southern district of NewYork in October, 1949, and since then he has established his reputationfor fair and firm decisions.by Judge Irving R. KaufmanIF the hundreds of American judges who sit on criminal cases were polledas to what was the most trying facet of their jobs, the vast majoritywould almost certainly answer 'Sentencing.'
Jul 24, 2015 Case Name: Troublesome Thief. Chapter: 2 – Troubles are Brewing. This is the case succeeding Disastrous Diet. Reminders: I didn’t bother noting all freebies like candies and other tools (if there are any) from the Crime Scene. It’s totally up to you to look for the other freebies. Revealing the barber shop in leftmost corner of the map. By the entrance of the church is a bulletin board, where there is a message. In the office, there is a file on the middle desk. Towards the lower left, just off of the boat's gangplank, is another boat with a bag of bait.
In no other judicial functionis the judge more alone; no other act of his carries greaterpotentialities for good or evil than the determination of how society willtreat its transgressors.In 1957, the average sentence for auto theft in the federal courts ofeastern Oklahoma was thirty-six months, while in New Hampshire the averagecommitment for the same crime was less than a year. It is difficult todiscern why the forging of a check should be twice as serious in themiddle district of North Carolina as in the eastern district of that samestate, but this is just what a breakdown of the average sentences for thatyear would seem to indicate. Last year, the average prison sentence metedout in the federal courts ranged from nine months in Vermont tofifty-eight months in southern Iowa. Of course, examination of the factsin the individual cases may reveal reasons which justify the differences.But, on the surface, the disparity in different sentences for the sameoffense seems unfair.Discuss this article in the forum ofReturn toThe fact that this problem is neither new nor limited to one system ofcourts is borne out by a study made several years ago of the sentencesimposed in more than 7000 criminal cases by six judges sitting in a statecourt. One judge imposed prison terms in 57.7 per cent of his cases.Another judge committed only 34 per cent of the prisoners before him. Onejudge granted probation in 32.4 per cent of his cases; another in only19.5 per cent.A few years ago, two youths were arrested while trying to break into a gasstation in a small Southern town. A third boy made his escape in the carin which the three had been driving.
The two arrested youths readilyadmitted that they had stolen the car from a small city in upstate NewYork. They had intended to return it after a half hour's joy ride, butonce in command of the vehicle, had decided to drive it to Florida.Halfway to their destination, their money exhausted, they had been aboutto ransack the gas station for money and food when a policeman observedthem.In the meantime, the alarm had been spread for the third boy and the car.He burglarized several gas stations along the highway but was finallyarrested after having driven less than 150 miles. However, his attempt toescape had put him in a different state. Thus, a few weeks later the boyscame before different judges, charged with automobile theft. They were allfifteen or sixteen years old, they had similar backgrounds, and theirrecords showed no previous convictions. Basically, they all had committedsimilar crimes, but their sentences did not reflect this fact.The youth who had escaped and committed additional offenses before hisarrest was eventually placed on probation with no prison term. His twocompanions were each sentenced to three years' imprisonment.
When two ableand conscientious judges reach such startlingly disparate results in caseswith striking similarity, it is plain that our sentencing procedures needto be re-examined.OUR theory and practice in the area of sentencing have undergone a gradualbut dramatic metamorphosis through the years. Primitive man believed thata crime created an imbalance which could be rectified only by punishingthe wrongdoer. Thus, sentencing was initially vengeance-oriented.Gradually, emphasis began to be placed on the deterrent value of asentence upon future wrongdoing.Though deterrence is still an important consideration, increased emphasison the possibility of reforming the offender - of returning him to thecommunity a useful citizen - bars the harsh penalties once imposed andbrings into play a new set of sentencing criteria. Today, each offender isviewed as a unique individual, and the sentencing judge seeks to know whyhe has committed the crime and what are the chances of a repetition of theoffense. The judge's prime objective is not to punish but to treat.This emphasis on treatment of the individual has created a host of newproblems. In seeking to arrive at the best treatment for individualprisoners, judges must weigh an imposing array of factors.
I believe thatthe primary aim of every sentence is the prevention of future crime.Little can be done to correct past damage, and a sentence will achieve itsobjective to the extent that it upholds general respect for the law,discourages those tempted to commit similar crimes, and leads to therehabilitation of the offender, so that he will not run afoul of the lawagain. Where the offender is so hardened that rehabilitation is plainlyimpossible, the sentence may be designed to segregate the offender fromsociety so that he will be unable to do any future harm. The balancing ofthese interacting, and often mutually antagonistic, factors requires morethan a good heart and a sense of fair play on the judge's part, althoughthese are certainly prerequisites.
It requires the judge to know as muchas he can about the prisoner before him. He should know the probableeffects of sentences upon those who might commit similar crimes and howthe prisoner is likely to react to imprisonment or probation. Becauseevaluation of these various factors may differ from judge to judge, thesame offense will be treated differently by different judges.The task of improving our sentencing techniques is so important to thenation's moral health that it deserves far more careful attention than itnow receives from the bar and the general public. Some of those at the barand many civic-minded individuals who usually lead even the judges in thefight for legal reform approach this subject with apathy or with erroneouspreconceptions. For example, I have observed the sentiment shared by manythat, after a judge has sentenced several hundred defendants, the wholeprocess becomes one of callous routine. I have heard this feelingexpressed even by attorneys who should know better.Last year, an experienced lawyer rose to urge me to reduce by five yearsthe sentence I had imposed on a particularly vicious narcotics offender.The prisoner was one of the most dangerous and unregenerate men ever tocome before me, and his attorney was hard pressed to find plausiblearguments in his behalf. Finally, after I had pointed out that everythingin the prisoner's long and sordid record demanded long commitment, thelawyer turned to me and said, 'But, your Honor, five years is a longtime.'
Of course, every judge is aware that five years in a penitentiary is along time. He well knows that in many cases a prison term not only withersthe life of the prisoner but spreads like a stain in an ever-wideningcircle, blighting the lives of innocent members of the family. Every judgeis painfully aware of what five years without a father may mean to aprisoner's son.
But society must be protected, crime must be deterred,dangerous offenders must be segregated, and prisoners must be reformed.Someone must decide what sentence will best effectuate these objectives.In the federal courts this task falls to the judge, but the problems ofthe sentencer would be the same no matter what his title.In our federal court in New York, a single judge may pass sentence on tenor more defendants in a day. Often, sentencing occupies a large portion ofthe court day. A lawyer who grows verbose arguing a motion may be proddedby the court, but I have never heard of an attorney being hurried whenasking mercy for his client. Respect for the dignity of the individualdemands that the attorney be heard fully.The fair resolution of the forces pulling for severity or leniency is ajudge's most important and difficult task.
It is an easy thing for a judgeto acquire a reputation as a stern, or a humane, jurist by the way heresponds to the ever-present forces urging excessive leniency on the onehand and unnecessary severity on the other. But resisting the pressureshas its own reward - the satisfaction of being able to say to oneself, 'Ihave never consciously rendered an unjust decision.' The day a judge isunable to make that statement should be his last day on the bench.CONGRESS and the state legislatures make the basic policy decisions inregard to sentencing, through the setting of maximum, and occasionallyminimum, sentences. The judge must take this legislative guide and applyit to the particular circumstances of the case before him. He must workwithin the legislative formula, even if he does not agree with it. Oftenthe special circumstances of the case will demand the most severepenalties set by the statute. At other times, society's aims can beaccomplished with a fine or a suspended sentence.
This was the situationin the case of an elderly lawyer who, through weakness or stupidity, hadbecome implicated in an embezzlement scheme. This elderly man had known noprofession but the law, and even there a serious physical defect hadrestricted his activities to those of researcher and brief writer. He hadneither relatives nor close friends and was entirely dependent upon theincome from his legal work. His conviction itself meant automaticdisbarment. From that moment, any lawyer who employed this man would bebreaking the law. This prisoner was hardly a dangerous criminal to besegregated for society's protection, and the shock of his conviction hadalready chastened him more than any other punishment that might beimposed.
In view of the circumstances, society could gain nothing fromthis man's imprisonment. He received a suspended sentence and was placedon probation.However, in many cases, a judge's duty to consider the protection ofsociety means that he must visit unhappiness upon people who did not actout of vicious motives and whom he would like to help, were he free to doso.This would be true in a case, for example, where the prisoner is a foodproducer who, though honest enough, is completely inefficient. The recordshows that on several previous occasions he has been fined for maintainingfilthy premises from which unsanitary foodstuffs were shipped ininterstate commerce, and, this time, the report, with its reference todead rats in the flour bins, reads like one of the more vivid chapters ofThe Jungle. Repeated warnings have proved ineffective, and betweenwarnings dangerously unsanitary products have been shipped. It is clearfrom the pre-sentence report that further admonitions would be useless andthat even a prison term would not change this man's nature. In such acase, the judge might take advantage of the flexibility of modernprocedures and place the prisoner on probation, on condition that hecompletely divorce himself from the bakery business. The sentence wouldprobably mean the end of a business built up by hard work over many years,but the court's duty to the public might compel such a result.Often the object of the sentencing judge is to place the prisoner in aposition where he can do no further harm.
This is the one theory ofpunishment upon which all schools of thought agree. There are somecriminals who simply cannot be permitted to remain at large. However,segregation, while it may prevent certain crimes, will not preventcriminals, and the permanent isolation of all offenders is as economicallyunfeasible as it is ethically unthinkable.I do not believe that we live in a den of potential thieves andcutthroats, held in check only by the terror of punishment.
I have seentoo many examples of the honesty and decency of the American people tobelieve that. On the other hand, it seems clear that, in many situations,crime has been discouraged by the knowledge that offenders will be treatedseverely.
In 1956, the federal narcotics laws were stiffened to providefor a sentence of from five to twenty years for a first offender and fromten to forty years for a subsequent offender. A startling decrease in thenumber of newly reported drug addicts followed. For example, it isreported that in New York state the number dropped from 4138 in 1956 to2836 in the first eleven months of 1958. Other states showed similardecreases. There are other examples of such successful deterrence.
And yetthe wisdom of a rigid high minimum sentence, fixed by statute with nodiscretion left to the sentencing judge, has been questioned by many.Like most judges, I accept deterrence as one basic purpose of any sensiblesentencing program. The need to discourage future crime often forces ajudge to ignore his own sympathy for the prisoner. Let us consider thecase of an illegal immigrant brought before a federal judge. The prisonertells a truly heart-rending story. A native of an impoverished section ofEurope, he had been unable to support his six children and in desperationhad smuggled himself into this country aboard a freighter. Once here, heworked hard and sent most of his earnings to his family.
The judge mightseriously consider merely suspending sentence and ordering the prisoner'sdeportation. Surely this is no bad man. But the prisoner's record showsthat this type of treatment has been tried unsuccessfully several times inthe past. The man has simply stowed away on the next United-States-boundship. It is clear in such cases that, if we continue to be lenient, itwill become known that a man with a touching story has nothing to lose byillegally entering the United States again and again.
Judges would beencouraging the violation of the very laws they were sworn to uphold. Inthis situation a judge might well find it his unpleasant duty to impose atleast a short prison sentence on that offender as a deterrent to others.In determining what sentence would be the best from the point of view ofdeterrence, neither the judge nor the legislature has any real scientificguide. I believe that more severe treatment may be warranted in the areasof narcotic violations and crimes endangering the national security.However, it does not follow from the general theory of deterrence thatlawlessness can be completely eliminated simply by increasing the severityof sentences.
Sooner or later, a point of diminishing returns is reached.For example, I doubt that there are many potential bank robbers notdeterred by the present twenty-year maximum sentence who would berestrained by a forty- or sixty-year maximum sentence. Furthermore,sentences so high as to be out of proportion to the crimes committed havehistorically had an effect opposite from the one intended.Occasionally a legislature, instead of strengthening the law enforcementagencies which provide the surest deterrence of crime, will attempt acut-rate anti-crime campaign by the simple process of increasing theminimum sentences for a particular offense. If this minimum is so highthat the public believes it manifestly unjust, the law may well benullified by juries refusing to convict, even in the face ofincontrovertible evidence. Those laws often become dead letters, and thelegislature, by attempting to provide too much protection, succeeds inproviding none.The fact that about 65 per cent of those admitted to our prisons arerecidivists indicates that in many cases even those actually subjected tothe theoretically deterring punishment are not discouraged.
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If we are toreach our idea of the perfect sentencing policy, we must determine in ascientific manner the validity of the deterrence theory in various areas.We must answer such questions as: At what point does punishment stopchastening and begin embittering? What type of criminal activity attractsthe type of men who will be deterred by threats?
How much deterrence do wegain by an absolutely rigid, and hence predictable, sentence? How muchdoes rigidity cost us in other fields?The cost of deterring crime by long periods of imprisonment is frightfullyhigh. Long prison terms mean large and costly institutions, and the humanhavoc thus created must sooner or later be paid for by all of us. Now, ifit appears that in certain types of cases little is to be gained bydeterrence-oriented sentences, the judges and legislatures mightconcentrate upon the reformation of the prisoner, with the view towardassuring that we shall never again have to foot the bill for this manwhile he is in custody, or repair what he breaks while he is at liberty.The situation is somewhat complicated by the fact that segregation,deterrence, and reformation are not the only factors to be considered insentencing. The judge and the legislature must also give weight to theimpact the sentence will have upon society at large. I realize that thetheory that a crime creates an imbalance rectifiable only by punishment isa much deprecated one, but it is a view held by a large segment of thepopulation and must be recognized as a factor in the sentencing process.In speaking of retribution, I most emphatically do not mean that asentence should be based upon a judge's personal indignation or uponvengeance.
Men should not be condemned to prison for terms varying withthe state of the Court's digestion, nor should the judge permit himself tobe influenced by public hysteria.But the general attitude of the public toward a particular type of crimeis a different matter, and it must be taken into consideration if respectfor the law is to be upheld. If people are continually shocked bysentences they regard as too lenient or by the granting of probation andparole without selectivity, they begin to believe that the criminal lawhas failed them and that there is a cleavage between their moral code andthe law. The inevitable result is a decrease in public confidence in andreliance on the law.WITHIN the last few years, cooperation among judges, lawmakers, andexperts working in the rapidly developing behavioral sciences has givenjudges a series of extremely effective devices for determining how best totreat prisoners. Probably the most widely used of these is the presentencereport.In our court, these reports are prepared by the probation officers.
Thesemen go into the field and interview the prisoner, his family, hisneighbors, friends, and employers. The voluminous data collected are thencarefully analyzed and put into the form most useful to the busy judge.Last year, investigations were made of 89 per cent of the convictedcriminal defendants in the federal courts of the United States.The judge is able to study these presentence reports at home or inchambers and again on the bench. By the time the prisoner stands beforehim, the judge has a good picture of his background and of the forces andcircumstances that led the prisoner from early childhood to his presentpredicament. The report enables the judge to arrive at reasoned answers totroublesome questions.On the basis of this information, he can tailor the sentence to fit thesituation at hand, confident that he is aware of most of the facts.
Thereare occasions when the presentence report fails to give the whole storybecause the defendant has been uncooperative in giving informationconcerning his past or has been deceitful. Other tools have recentlybecome available to the federal judges in such cases.Early this year, one of these new devices proved extremely useful. Thecase involved a young stowaway. As a first offender guilty of a minorcrime, the prisoner would ordinarily have received a suspended sentence ora very light sentence if warranted. But the case troubled the judge.Although the prisoner had been pronounced sane after a preliminarypsychiatric examination, the presentence report indicated bizarre behaviorpatterns. Furthermore, the information he had given concerning hisidentity and background did not check out.
In fact, the authorities knewalmost nothing about the prisoner.A few months earlier, the judge would have had no practical choice but tobase the sentence on the information at hand, inadequate as it was. ButCongress recently enacted a statute designed to cope with just thisdilemma.Under the new law, the court was able to commit the stowaway to a federalprison for further study before finally determining the length of thesentence. There he was given a long series of tests and examinations. Hisactivity was observed for weeks, and skilled interviewers began graduallyto piece together the scraps of information the prisoner inevitablyrevealed. Five months later, the picture was complete, and the sentencingjudge received a full report. This young man, who might have been handledas an ordinary petty offender, was in fact an escapee from a state mentalhospital, where he had been diagnosed as a schizophrenic.
Had the newsentencing statute not been available, he would have been released, to thegreat detriment of society and himself. Thanks to the new law, he has beentransferred to a state hospital where he will receive the care he requiresand will be unable to harm others.Inquiry into the mental and emotional state of a prisoner does not oftenrequire the expensive procedure followed in the case of the young stowaway. Most such investigations can and should be handled locally bypersonnel attached to the court, and for this reason some of our moreforward looking states have provided their courts with psychiatricclinics. Last year, the clinic attached to the court of special sessionsin New York City made diagnostic examinations of seven hundred new casesand provided consultation and instruction for a staff of approximatelyseventy probation officers. The dividends from these activities farexceeded the clinic's annual cost of $72,830.It is unfortunate that budgetary limitations often deny our courts notonly adequate psychiatric consultation but even the staffs needed toprepare the essential presentence reports. Such economy is shortsighted.The premature release of a single dangerous criminal often costs thecommunity far more than the yearly budget of the probation department orpsychiatric clinic that could have uncovered the peril in time.NEWLY developed diagnostic methods may indicate that the prisoner'schances for reformation are excellent and that this can safely beaccomplished outside prison, through probation.
Unselective use ofprobation is a positive danger to society. It is corrosive of theprinciples of deterrence and segregation and of the court's efforts touphold public respect for the law. But, when intelligently employed,probation, under an efficient probation department, promises immensesavings in human resources and in public funds.Let us take the case of an embezzler who a judge believes worthy ofprobation. The man is immediately assigned to a probation officer. Theconvicted embezzler will visit the officer at stated periods to report onhis progress. He will also receive unannounced visits from the probationofficer. With the officer's help, he learns to make his adjustment in thesame environment that will face him when supervision ends.
If this sameman had been committed to prison, he would first have had to adjust to theinstitutional environment, where he would have borne littleresponsibility. Upon his release, he would have had to make a second andperilous adjustment to normal life. Probation, selectively used, avoidsthis sudden decompression.This type of supervision, which has proved so useful in the administrationof justice, costs the taxpayers approximately $150 per year per offender,about one tenth the cost of keeping a man in prison for the same period.There are other and greater savings to be derived from this. During theentire parole and probation period, the contrite offender is a productivecitizen, contributing his skills to the general welfare, paying taxes, andsupporting his family, which probably would have been thrown on the reliefrolls had he been imprisoned for an extended period. What may be moreimportant, the family is kept together, and a more normal environmentprovided for the probationer s children.It is difficult to measure statistically the success of probation Sinceprobationers are by definition the most promising of our convictedoffenders, it is only to be expected that their rate of recidivism wouldbe considerably lower than the average.In the federal courts, approximately 40 per cent of all guilty defendantsare placed on probation. In our court in New York, more than 90 per centof these offenders conclude their term of probation successfully. Thecredit for this high rate of success belongs largely to our probationdepartment, a dedicated group of approximately seventeen officers who havea deep devotion to duty and are motivated by one objective - an interest inthe man who finds himself in an unfortunate position and in hisrehabilitation.Even where the reports and the nature of the crime indicate thatcommitment is necessary, the judge must still consider the prisoner'scapacity for reformation.
Occasionally a prisoner's only hope is a periodof forced confinement that will isolate him from his former associates andforce him to take stock of his situation. Often this forced stocktaking isan extremely effective form of treatment. Only incarceration can bringhome to some criminals that society actively disapproves of their conductand has the power to stop them should their crimes be repeated. Surelythere are recidivists who return to federal prisons time and time again,despite the efforts made in the prison to rehabilitate them. But we mustalso remember that there are many prisoners who have been taught a lessonby their incarceration and have returned to the community bettercitizens.Perhaps our greatest advances have been made in the handling of youngoffenders. Prisoners sixteen to twenty-three years of age present aspecial problem. Generally they are more responsive to intelligenttreatment than older prisoners, but prognosis is extremely difficult, andsometimes coddling of the youthful offender who has shown traits ofhard-bitten criminality may do injury to both the offender and society.
Ajudge cannot predict how an eighteen-year-old will react to four or fiveyears in an institution. Enlightened federal and state statutes meet thisproblem by providing for special treatment for young prisoners. Thestatutes also permit sentences under which the maximum, but not theminimum, is set by the judge or by law. The offender is then transferredto a specialized institution and can be released under supervision at anytime before the expiration of the maximum sentence when he has shownhimself ready to re-enter society.I believe we can take real encouragement from our progress in the area ofreformation. True, much remains to be done. We must learn to discover moreabout the prisoner as an individual and much more about the effects ofcertain types of treatment.
Yet a start has been made.THE nature of the sentencing problem and its causes are easily stated, butarriving at a solution is difficult. Many suggestions have been put forthover the years, but most of these suffer from fatal flaws.Rigid, legislatively-set minimum sentences in all cases are no answer.They would negate the years of progress we have made in tailoring thepunishment to fit the particular situation before the court. It has alsobeen suggested that the sensitivity of judges to particular offenses mightbe avoided by allowing the juries to set sentences. I believe that such asystem, far from being helpful, contains some serious dangers. A fewstates do give juries sentencing power in certain cases. In thesejurisdictions, the courts are often faced with an insoluble dilemma.
Ifthey follow the universal practice in criminal cases and withhold from thejury any evidence of the defendant's past misdeeds, the jury will havelittle information on which to base its sentence. If, on the other hand,they permit the jury to hear about the defendant's prior vicious acts,they run the very real risk that convictions will be based on adetermination that the defendant is a bad man, and therefore is probablyguilty of the instant offense. Special post-verdict sentencing hearingsbefore the jury are probably too cumbersome to be used generally and forall offenses.Some states have taken the sentencing function partly or entirely awayfrom the judge and have given it to a body whose sole function issentencing. Under some of these plans, the judge must sentence theprisoner to the maximum sentence provided by statute. In other states, hesets the maximum he considers just.
But there his power ends. In effect,the prisoner has received an indeterminate sentence. The offenders arethen studied by prison authorities and questioned by boards orauthorities, often comprised of experts in the fields most concerned withsentencing.
They may include men with experience as prosecutors,policemen, and probation officers. The responsibility for determining thelength of imprisonment really rests with the boards.
This system has theadvantage of enabling sentencing to be deferred until the prisoner can beobserved and studied.However, a sentencing judge can achieve the same ends, in cases that seemto warrant it, by deferring sentence until a thorough study is made of theprisoner. Furthermore, where there are large numbers of prisoners to besentenced or where this function must be performed in widely scatteredlocalities, a sentencing authority must divide itself into sub-boards. Asa result there may be little, if any, gain in uniformity.I believe that the sentencing responsibility should remain where it hastraditionally rested - with the judge. Of all public officials, he is thebest insulated from public and political pressures. Certainly the judge isnot an expert sociologist or criminologist, but he need not be. He is anexpert in making difficult decisions on the basis of the best informationavailable, and this is exactly what is called for in sentencing.The fact that I do not believe that the disparity problem can be solved byremoving sentencing authority from judges does not mean that I despair ofan ultimate solution.
In fact, Congress has taken a great step in thatdirection by authorizing institutes and joint councils on sentencingproblems. A pilot institute on sentencing on a national basis, attended byfederal judges from various parts of the country, was held at theUniversity Of Colorado at Boulder in July, 1959.
Out of this, it is hopedthat guides for the agendas for regional meetings will be formulated. Iexpect that a considerable amount of disparity will be eliminated by themere exchange of views as to which factors should be considered and howheavily they should be weighed. The mistakes and successes of one judge indeveloping sentencing techniques will be available to other judges.The safeguards provided during trial are a tribute to our sense of fairplay. If a ruling of the trial judge violates any of these proceduralsafeguards, the defendant may appeal and perhaps secure a reversal of hisconviction. However, it should be noted that, once a verdict of guilty hasbeen pronounced, there are few further checks on the trial judge'sdeterminations. Were a judge to impose a sentence completelydisproportionate to the crime committed, the higher courts might be unableto prevent the injustice so long as the sentence was within the statutorymaximum. For this reason, some judges have advocated appellate review ofsentencing.This system has been tried with varying degrees of success in a number ofour states and in England.
Under one proposed system, the sentencing judgewould be required to write or dictate a memorandum explaining the factorshe considered in passing sentence. In most cases, the memorandums would bebrief and would require little extra work.
Only in the case ofdispositions differing greatly from the average would the judge go intogreat detail. A prisoner who believed himself aggrieved by a sentencewould have the right to appeal to a court constituted for this purpose.This sentencing court would be made up of trial and appellate judgesselected for short periods on a rotating basis. Under other proposals,sentences would be reviewed by the regular appellate Courts.If the reviewing court believed a sentence incorrect, it would vacate itand impose a new sentence, either more or less severe than the original.The possibility that the sentence might be increased would prevent a floodof frivolous appeals and keep the work of this new court within manageablelimits. The system is no panacea. It would not eliminate sentences thatare so lenient as to make a mockery of the law under which the prisonerwas convicted, and the judgment of the sentencing judge would probably beoverridden only in the clearest cases.The reviewing court would be required to write an opinion setting forththe factors which led it to revise a sentence. These would be published,and in time a body of opinions would develop, outlining - albeitroughly - the elements which should and should not be taken into account,and would also give some idea of the weight to be given each.
It would bea flexible standard, but a standard nevertheless.Appellate review would, of course, involve far-reaching changes and couldraise numerous problems of its own, including possible constitutionalobjections to the increasing of sentences, and I do not favor it,therefore, at this time. We must first try to utilize the weaponsavailable to combat disparity.As I have tried to show, the defects in our sentencing systems arepotentially responsive to a rational approach. We must re-examine in thelight of modern scientific knowledge some of our sentencing axioms. Wemust foster greater cooperation between judges, law-enforcement officials,and the other disciplines that have so much to offer in our quest for thecorrect sentence. Finally, we must attack the disparity problemrealistically and achieve a greater interchange of sentencing informationamong judges.
I firmly believe that, once the importance of the sentencingproblem is perceived by the public, we will have set our feet firmly onthe road to our goal: the imposition, in every case, of the sentence thatpromises society the maximum protection and the offender the best possiblechance to live a useful and productive life.Copyright © 1960 by Irving R. All rightsreserved.The Atlantic Monthly; January, 1960; Sentencing: The Judge's Problem.
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