Judging Sentences

Should the punishment fit the crime? To most penologists, criminologists, judges and even many prosecutors, a far more important concern is whether the sentence fits the offender. Thus, judges throughout the U.S. have leeway to give stiff or light sentences according to the merits of the individual case. After considering the results of broad judicial discretion in New York State, Chief Judge Stanley Fuld of the court of appeals was so dismayed that last week he suggested that it might be necessary to remove the sentencing power from judges altogether and turn it over to "a correction authority or some other agency."

The proposal by Fuld, the state's top judicial official, was a response to a survey of New York's state and federal courts by the New York Times's Lesley Oelsner. She found that sentences are generally much shorter now than they used to be. She also found a wide variation in sentences now given, usually having more to do with the individual judge's attitude than with the offender's background. Without any formal standards to guide them, judges fell back on their instincts, experience or prejudices. In practice what has happened, in case after case, is that the poor got longer sentences than the well-to-do, nonwhites longer than whites, and the street thief who steals a few dollars longer than the white-collar thief who steals thousands.

To minimize such disparity, said Fuld in a formal statement responding to the Times articles, "it may ultimately be demonstrated that it is desirable" to have a single agency that has "the power to determine whether the offender be placed on probation [or] be confined" and when "to release him or parole him." Though parole boards and other correction agencies now have substantial pieces of that power, there is no agency in the U.S. with complete authority. Other jurists in New York think a better solution might be to initiate regular appellate review of their sentences. But no one disputed the fact that discretionary sentencing is still far from being "treatment to fit the offender."

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