In Favor of "Presumptive Sentences" Set by a Sentencing Commission

Abstract

The debate over "just deserts" as a sentencing principle continues in this country. A common criticism of that principle is that legislatures will set unreasonably high sentences. This problem might be avoided if the re sponsibility for setting sentence guidelines were confined to a separate body-that is, a sentencing commission. Removed from the immediate po litical furor and composed of various representatives of the criminal jus tice community, as well as lay members, the sentencing commission would both establish and revise sentencing guidelines for judges on the basis of continuing collection of data. The criticism that just deserts means unflexible, fixed sentences for ev ery offender is also misguided. The concept of the "presumptive sen tence," which will allow some flexibility for increasing or decreasing the sentence, would still permit the sentencing judge to retain a reasonable amount of (reviewable) discretion; "sentencing by computer" would not occur. In establishing the presumptive sentence as well as sentencing guidelines, the sentencing commission would consider, but would not be bound by, information and data on what judges in the jurisdiction are currently doing. Indeed, one of the dangers is that the legislature, or some other body, might simply adopt what is being done as what should be done, a tactic that is both philosophically unjustified and pragmatically dangerous. The second part of the article rehearses the arguments for sentencing reform and, in particular, for presumptive sentences. The fear that propo nents of commensurate deserts would remove the word rehabilitation from the prison or even the dictionary is inaccurate. They simply seek, for various reasons, to remove it from the purposes of sentencing.