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Defense Counsel and the Federal Sentencing Process

NCJ Number
New York Law School Law Review Volume: 27 Issue: 3 Dated: (1982) Pages: 799-860
T F MacCarthy; C A Brook
Date Published
62 pages
This study reviews existing Federal sentencing options, identifies some particular problems defense counsel may face due to recent Supreme Court cases, and suggests a defense method of preparing for sentencing.
Federal sentencing options consist of incarceration, fines, probation, and special sentencing provisions, such as confinement and treatment of drug addiction, a period of observation and study prior to sentencing, enhanced sentences, and special parole terms. The Federal Youth Corrections Act, which has as its paramount purpose the rehabilitation of young offenders under 22 years-old, permits Federal courts a wide range of sentencing options, including probation, treatment and supervision under the custody of the Attorney General, and sentencing under any other applicable penalty provisions. The advantages of this act, however, are more often theoretical than real. Once the defense counsel is familiar with all the available sentencing options, he/she is ready to interview the client and create a sentencing rationale. In working toward a sentencing strategy, it is important to obtain more relevant information than anyone else involved in the case. This will enable counsel to diffuse or refute potentially damaging statements and present the court with a convincing alternative to a prison sentence. Various approaches may be used by counsel in constructing a sentencing plan that presents the least restrictive alternative. One approach is for counsel to create a specific sentencing plan. At other times, expert assistance may be necessary to develop an effective and realistic sentencing rationale. The type of expert used will depend on the particular case and specific client characteristics and circumstances. A third possible approach is to contact the National Center on Institutions and Alternatives to solicit its help in developing an individualized community-based program. A total of 392 footnotes are provided.


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