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

57 Judicature 96 (1973-1974)
The Anarchy of Sentencing in the Federal Courts

handle is hein.journals/judica57 and id is 98 raw text is: The Anarchy of Sentencing in the Federal Courts William James Zumwalt Sentencing disparity is an increasingly frequent target of critics of American criminal justice. Implicit in most of these criticisms is the assumption that disparity is so prevalent that it needs little or no documentation. To one already disposed to accept dis- parity as a reality, proof may be a formality, but to the skeptic, disparity may be little more than an oft-used word in the vocabu- lary of a fr'ustrated defense attorney or an embittered recidivist. It is this writer's in- tention to preface this article with sufficient documentation to get the skeptic past this initial premise and into the substance of the sentence disparity issue.1 In this endeavor, I may not fully succeed. Statistical analysis of this kind is difficult, and sentencing disparities which seem to be unjust may often be explained through variables of unascertainable validity. For instance, when statistics list average sen- tences for all crimes, there is a strong pos- sibility that any disparity is caused by the differing nature of the offenses. Even aver- ages from the same category of offenses can suffer from this factor. Identical offense averages can be further misleading by the presence of recidivists. Samples may be too small, in which case the differences may be extreme and isolated. Or they may be too large, causing the gross disparity to be consumed by the average and concealing situations in which the judges are only periodically unfair. 1. A note on the limited scope of this article: The precise issue herein is disparity in federal sentencing. Any state disparities are an issue wholly beyond this author's intention. 96 Judicature/Volume 57, Number 3/October 1973 The problem is compounded by the an- nounced Supreme Court policy of, if not disparate, at least different sentence lengths. By implicit Supreme Court definition, dis- parity exists only when there is a difference which is unrelated to the consideration of appropriate aggrai'ating and mitigating cir- cumstances. Furthermore, several intangible factors argue for the existence of disparity, and these cannot be assigned statistical value. These include the fact that prisoners firmly believe there is disparity and legal writers are so convinced of its existence as to con- sider careful documentation unnecessary. Federal judges have been concerned enough about disparity to conduct numerous sen- tencing institutes in recent years. Finally, the element of human nature involved in sentencing argues for disparity. It is ab- surd to assume that closely-held values can be totally expelled from the mind of the sentencing judge. FIFTH AMENDMENT The constitutional touchstone of the dis- parity issue is the due process clause of the Fifth Amendment. Instances in which the courts have been willing to intervene in lower court sentencing have been based on the Fifth Amendment, and reformers in this area repeatedly call for an expanded definition of due process. Most people consider the most crucial stage of a criminal proceeding to be the determination of guilt or innocence. Ac- cordingly, a multitude of constitutional and statutory mandates permeate the trial and

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