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

24 Fed. Probation 3 (1960)
Sentencing: The Judge's Problem

handle is hein.journals/fedpro24 and id is 5 raw text is: Sentencing: The JUdge's Problem BY IRVING R. KAUFMAN Judge, United States District Court, Southern District of New York F THE HUNDREDS of American judges who sit on criminal cases were polled as to what was the most trying facet of their jobs, the vast major- ity would almost certainly answer Sentencing. In no other judicial function is the judge more alone; no other act of his carries greater poten- tialities for good or evil than the determination of how society will treat its transgressors. In 1957, the average sentence for auto theft in the federal courts of eastern Oklahoma was 36 months, while in New Hampshire the average commitment for the same crime was less than a year. It is difficult to discern why the forging of a check should be twice as serious in the middle district of North Carolina as in the eastern district of that same state, but this is just what a break- down of the average sentences for that year would seem to indicate. Last year, the average prison sentence meted out in the federal courts ranged from 9 months in Vermont to 58 months in south- ern Iowa. Of course, examination of the facts in the individual cases may reveal reasons which justify the differences. But, on the surface, the disparity in different sentences for the same of- fense seems unfair. The fact that this problem is neither new nor limited to one system of courts is borne out by a study made several years ago of the sentences im- posed in more than 7,000 criminal cases by six judges sitting in a state court. One judge imposed prison terms in 57.7 percent of his cases. Another judge committed only 34 percent of the prisoners before him. One judge granted probation in 32.4 percent of his cases; another in only 19.5 percent. A few years ago, two youths were arrested while trying to break into a gas station in a small South- ern town. A third boy made his escape in the car in which the three had been driving. The two arrested youths readily admitted that they had stolen the car from a small city in upstate New York. They had intended to return it after a half hour's joy ride, but once in command of the vehi- cle, had decided to drive it to Florida. Halfway to their destination, their money exausted, they had *This copyright article, which appeared in the January 1960 issue of The Atlantic Monthly, is presented in Federal Probation with the permission of Judge Kaufman. been about to ransack the gas station for money and food when a policeman observed them. 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 finally arrested after having driven less than 150 miles. However, his attempt to escape had put him in a different state. Thus, a few weeks later the boys came before different judges, charged with auto- mobile theft. They were all 15 or 16 years old, they had similar backgrounds, and their records showed no previous convictions. Basically, they all had committed similar crimes, but their sen- tences did not reflect this fact. The youth who had escaped and committed ad- ditional offenses before his arrest was eventually placed on probation with no prison term. His two companions were each sentenced to 3 years' imprisonment. When two able and conscien- tious judges reach such startling disparate results in cases with striking similarity, it is plain that our sentencing procedures need to be reexamined. Changing Concept of Punishment Our theory and practice in the area of sentenc- ing have undergone a gradual but dramatic metamorphosis through the years. Primitive man believed that a crime created an imbalance which could be rectified only by punishing the wrong- doer. Thus, sentencing was intially vengeance- oriented. Gradually, emphasis began to be placed on the deterrent value of a sentence upon future wrongdoing. Though deterrence is still an important con- sideration, increased emphasis on the possibility of reforming the offender--of returning him to the community a useful citizen-bars the harsh penalties once imposed and brings into play a new set of sentencing criteria. Today, each offender is viewed as a unique individual, and the sentenc- ing judge seeks to know why he has committed the crime and what are the chances of repetition of the offense. The judge's prime objective is not to punish but to treat. This emphasis on treatment of the individual has created a host of new problems. In seeking to

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