The Sentencing Views of Yet Another Judge
![handle is hein.journals/glj66 and id is 1259 raw text is: THE SENTENCING VIEWS OF YET ANOTHER
JUDGE
FRANK A, KAUFMAN*
The problems of sentencing have recently fostered a great deal
of commentary and some significant legislation, having in
common the dissatisfaction with present sentencing systems
and the advocacy of new sentencing goals and methods. In ihis
essay, Judge Kaufman reviews the merits of both existing and
proposed systems and concludes that we can best reduce crime
not by abandoning traditional approaches, such as rehabilita-
tion, but by making a greater commitment to such methods and
also by adopting certain progressive reforms, particularly
appellate review of sentencing decisions.
How many persons other than a handful of criminologists,
penologists, lawyers, and judges were really concerned about
sentencing when World War II ended? Or even a decade or so
thereafter? The crime wave, and prisons bursting at their seams, have
changed all of that. Sentencing is on the tongues of many, a choice
topic of newspaper columnists and contributors, a key target of leading
legislators, a favorite whipping boy of conservatives and liberals alike.
Much is wrong with sentencing in the United States today. But in our
zeal to criticize and change, we must take care neither to throw the
baby out with the dirty bathwater nor to return to the sins of our
ancestors. Accordingly, let us first look at what is wrong with our
current sentencing procedures, and then examine some of the
proposed solutions and their pluses and minuses.
It takes only a moment's reflection to realize the disparities that our
sentencing system has bred and continues to breed.' These
disparities are the inevitable product of the almost unbounded
discretion that resides in trial judges in the performance of their
sentencing tasks. About five years ago, one federal trial judge, whose
keen insight has placed sentencing problems in perspective, put it this
way: We boast that ours is a 'government of laws, not of men.'
. . [But] the almost wholly unchecked and sweeping powers we give
to judges in the fashioning of sentences are terrifying and intolerable
for a society that professes devotion to the rule of law.'2 Some years.
*United States District Judge for the District of Maryland. A.B. 1937, Dartmouth College;
L.L.B. 1940, Harvard University.
1. In one city a number of years ago, there were two federal judges. As to their sentencing
practices, it was said that one could not count over five and the other could not count under five.
2. M. FRANKEL, CRINAL SENTENCES: LAW WrroUT ORDER 3, 5 (1973).
1247](ViewImageLocal?handle=hein.journals/glj66&div=47&collection=&method=preview&ext=.png&size=3)
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The Sentencing Views of Yet Another Judge
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