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Discretion, Disparity, and Discrimination in Sentencing: Where Have All the Critics Gone?

NCJ Number
Judges' Journal Volume: 35 Issue: 3 Dated: (Summer 1996) Pages: 2-6,8-9
P L Griset
Date Published
7 pages
Postconviction administrative sentencing discretion has flourished in New York because prison officials have assumed vast new powers over inmate sentences with no concomitant diminution of parole official sentencing powers.
New York embraced sentencing discretion in the 1950s in accordance with the American Law Institute's Model Penal Code. Sentencing discretion was attacked by critics in the 1970s who focused primarily on postconviction administrators. The New York Legislature responded to calls to limit administrative sentencing discretion by passing the Parole Reform Act of 1977. This act required written parole guidelines for exercising release discretion. Passage of this act, however, did not stop the determinate sentencing movement. While interest in determinate sentencing remained strong throughout the late 1970s and early 1980s, concrete steps were taken in 1983 to end sentencing discretion. Even so, New York's Committee on Sentencing Guidelines faced great difficulty in transforming vague concepts of determinate sentencing into specific statutory provisions, partially because its members held very different views on the appropriateness of judicial and postconviction administrative sentencing discretion. Enacted in 1987, New York's shock incarceration program allows prison officials to dramatically reduce judicially-imposed minimum sentences. Judges cannot sentence offenders to shock incarceration; rather, the selection is made by correctional officials who administer the program without review or oversight. The New York Legislature has also introduced presumptive parole under the name of earned eligibility. Earned eligibility does not undercut the State's mandatory minimum sentencing structure but lessens the overall average time served in New York prisons by increasing the parole release rate at first eligibility. In addition, New York has a work release program that has been used as a population control mechanism since 1990. Under the day reporting program, participants have not yet served their mandatory minimum sentences but live at home while under correctional custody. New York policymakers have ceded a great deal of control over sentencing to corrections because of strong public pressure to control the growth of prison populations in the late 1980s and early 1990s. 44 references