Sentencing: The Decision as to Type, Length, and Conditions of Sentence

Abstract

approaches these questions from classical liberal, Lockeian premises. He asks us how, if we too support these principles (the ideas which underlie the Declaration of Independence and most of the American Credo), we can reach other conclusions. This is where this book, so largely theoretical, becomes a ripe subject for scholarly legal thought. If we follow the logic of these essays, it is imperative to reconsider many of the assumptions of our law. Is there an implicit right, perhaps under the 9th Amendment, of the citizen to determine his own life, absent some special overriding governmental need? This need may, the author concedes, arise in times of national emergency, or when individual behavior is thoroughly other-regarding. But otherwise, the presumption would seem to be in favor of the citizen. Yet, not exactly. For Walzer is a pluralist, a real old-fashioned one of the Figgis-Laski type. The individual is helpless before the state, so he must resist it or ignore it in groups, and these groups have a life of their own. The result seems to be that, as much as Walzer has rescued from the state, he snatches back to hand to the association. And here the author plays favorites. Not mean old corporations or absolutist churches, but good democratic groups. And, as much as he admires the Black Revolution, it does not qualify either. So, like Figgis and Laski before him, a comprehensive work of hautepolitique sometimes seems to end up as a nifty bit of special pleading for "our" side-here, the voluntary community of idealistic protesters. Walzer sees the problem and apologizes for the bias, but then proceeds on his way. This is understandable, but unfortunate, for beyond the advocacy (mixed with sage advice) is a fine work of general theory. JOSEPH 0. Losos* SENTENCING: THE DECISION As To TYPE, LENGTH, AND CONDITIONS OF SENTENCE. By Robert 0. Dawson. ' Boston: Little, Brown and * Member. Missouri Bar.

Sentencing.

“…One criticism leveled at judges is that their sentencing decisions are inconsistent from one offender to another, from one judge to another, and from one jurisdiction to another. Although discretion and disparity in decisions are present at many stages of the criminal justice system, disparity in sentencing has received the most publicity, probably because sentencing is highly visible and because it is much easier to quantify the existence of disparity at the sentencing stage (e.g., by the percentage of probation sentences or the average length of prison terms) than at the arrest and prosecution stages ( Dawson, 1969 ). Typically, disparity is examined using multiple regression approaches.…”

“…The greater the number of prior felony convictions, the lower the likelihood of a probation sentence ( Dawson, 1969 ) and the more severe the prison sentence ( Green, 1960 ), relationships that are explicitly included in sentencing guidelines. The judge is also likely to consider, when applicable, the defendant's prior success or failure on probation.…”

“…The judge is also likely to consider, when applicable, the defendant's prior success or failure on probation. A defendant who seriously violated probation in the past is unlikely to be placed on probation again ( Dawson, 1969 ).…”

“…Second, many judges may be reluctant to expose youthful offenders to the dangerous environment of the prison. Third, many judges believe that younger offenders have a better chance than older offenders of being rehabilitated ( Dawson, 1969 ). The exception to younger offenders receiving less punishment is young Black males, who receive the harshest penalties of any group, probably because they are perceived as being more committed to crime, less amenable to reform, and better able to adjust to prison ( Spohn, 2000 ;Steffensmeier et al, 1998 ).…”

“…Because they are generally elected, judges care what voters think. Community interest in sentencing varies with the type of crime, with certain categories of crime, such as sensational murders or sex offenses, generating media attention and community interest and forcing judges to take account of public opinion ( Dawson, 1969 ).…”