About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

26 Fed. Probation 33 (1962)
Sentencing Methods and Techniques in the United States

handle is hein.journals/fedpro26 and id is 121 raw text is: Sentencing Methods and Techniques in the United States* BY B. J. GEORGE, JR. Professor of Law, University of Michigan T HE TOPIC OF sentencing procedures set for discussion at the Eighth International Con- gress of Penal Law is one which is shared in common by all countries with formalized and regularized systems of criminal procedure through which fixed definitions of criminal law are ap- plied. Understandably enough, since most of the world's legal systems are based on the civil law the specific questions posed for the Congress re- flect that background. Consequently, it is some- what difficult to fit the method used in the United States of stating problems concerning sentencing practices precisely into the civil law-derived pat- tern. However, within the limits inherent in this basic difference in terminology the questions raised for consideration at the Congress will be examined from the point of view of American federal and state law. I What is the formal procedural context within which judicial discretion is exercised? The formalities surrounding sentencing depend, of course, on whether it is the court alone who determines the length and type of sentence or whether the jury makes such a determination. In America's past the jury played an extremely important role in the determination both of guilt and of the appropriate penalty, and this role has not completely disappeared at the present time. Thus in an overwhelming majority of states1 the jury determines whether in cases of first *EDITOR'S NOTE: This article is a background paper prepared by Pro- fessor George as a member of the American delegation to the Eighth Congress of the International Association of Penal Law held in Lisbon in September 1960 for use in the discussion section on the topic as set by the directorate of the Congress. Statutes for the several states are gathered in tabular form in ALI MODEL PENAL COoE (Tentative Draft No. 9), App. D, pp. 121-126 (1959). Statutory citations are gathered in Sentencing Felons, 60 COLUm. L. REV. 1134, 1154 note 136 (1960). Id. at note 137. See PUTTKAMMER, ADMINISTRATI14 Or THE CRIMINAL LAW 205-208 (1953). Sentencing Felons, 60 COLUM. L. REV. 1134, 1155 note 142 (1960). 4 Id. at note 143. Eyg. 4.Y. CoCa Poc. 1 434, 433; CAL. PoN. CODg § § 114, 1193; i. People v. Medcoff, 844 Mich. 108, 73 N.W.2d 537 (1955). 8 Authorities are gathered in In re Levi, B9 Cal.2 41, 244 P .2d 405 (1952). 19People ex reL Miller v. Martin, 1 N.Y.2d 406. 135 N.E.2d 711, 153 N.Y.S.2d 202 (1956); Couch v. United States. 235 F.2d 519 (D.C. Cir. 1956). degree murder the death penalty or manda- tory life imprisonment shall be imposed rather than some lesser penalty. In 10 states the penal- ties for all crimes are determined by the jury within the limits established by the legislature2 and in three states the penalties for certain listed crimes are so determined.5 Under such circumstances the formalities are those which surround the deliberations and verdict of the jury: The jury is given instructions of law by the court concerning the legal issues in the case and its own role in the judicial process; it re- tires for private deliberations under guard; it reports its unanimous verdict to the judge in open court in the presence of all the jurors, the defendant and his counsel; and the verdict is accepted by the judge and entered in the record of the case.4 The formalities are thus fixed by procedural law. However, the judge may be per- mitted to reduce the jury-imposed sentence3 in some jurisdictions, and may be able to substi- tute his own determination of sentence if the jury exceeds its legal powers in the sentencing process.6 In most of the remaining jurisdictions sentence is determined by a single judge at the time of or soon after the submission and receipt of the jury's verdict of guilty. In all jurisdictions in which the sentencing process takes place in the trial court, the judge is responsible for assess- ing and passing sentence when the defendant has offered a plea of guilty which has been accepted. Obviously there is no jury or other body which can serve the purpose of a sentencing organ in such circumstances. In passing sentence it is necessary that the defendant be present in court if the offense is a felony or serious misdemeanor7 and that his counsel be present in so far as he is protected at this time by his constitutional right to counsel.0 The defendant must be given his right of allocu- tion; that is, the opportunity to make any state- ment which he may desire as to why sentence should not be pronounced against him.9 Failure

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most