A major overhaul of criminal sentencing procedures has been proposed for the District of Columbia in an attempt to strike a delicate balance between a concept of fixed prison terms and the need to tailor sentences to the individual offender.
The proposal would eliminate the possibility of parole, a move reflecting current thought among leagal commentators that parole board decisions are often the product of whim and that prisoners often manipulate parole boards to gain early release.
"You play whatever game you need to get out," said one criminologist.
But under the sentencing structre tentatively proposed by the D.C. Law Revision Commission "a person will not earn their (sic) way out (of prison) through rehabilitation" or the appearance of reform, according to Daniel S. Seikaly, a senior staff attorney for the commission.
If the offender's desire to reform is genuine, the opportunities for rehabilitation will be available to him while he is in prison, Seikaly said.
But, by severing the connection between the offender's conduct in prison and his release - except for credit for good behaviour - and by substituting a kind of fixed sentence, the commission hopes to eliminate the uncertainties faced by inmates who now have to rely on the parole board's opinion to regain their freedom.
The proposals for the District are an unusual combination of various schemes for sentencing reform that include eliminating parole boards, harnessing judicial discretion, tightening the overall structure of the penal process and providing a defendant the right to appeal his sentence.
The law Revision Commission is a panel of 19 lawyers and community representatives who are helping to draft a new version of the city's turn-of-the-century criminal code.
The commissioners earlier released a preliminary draft report that defined various crimes.They are homicide, robbery, theft, burglary, assault, abduction, sex offenses, arson and forgery.
But it is the commission's recommendations on sentencing - perhaps the most critical item, in teh criminal justice system - that are the most sensitive and difficult aspect of revising the criminal code.
In developing a sentencing model, the commission said it rejected the unlimited judicial discretion that accompanies an indeterminate sentence system. This system allows judges to impose almost any sentence up to a maximum set by law - similar to the current system in the District. The commission also rejected as "cruel and unnecessary" a system of determinate sentences in which prison terms are set for all crimes with little judicial discretion.
"Imprisonment is of such dubious effectiveness that mandating its imposition in all cases is not justified," the commission said in an analysis.
Instead, the commission attempted to reach a middle ground between the two systems by setting up statutory "term sentences" for offenses based on their seriousness and then permitting the judges to set the "character" of the sentence."Character" can include imprisonment, supervision, minimal supervision or various combinations of the three, according to the commission's proposal.
"Under the new system, a defendant knows exactly when he gets out (of prison) and he doesn't have to do what pleases the parole board," said Willie King, a former deputy chief of the Superior Court division of the U.S. Attorney's Office. King is also a former consultant to the commission.
Under the proposals, judges for the first time would have to set forth theire reasons for their sentencing decisions in court hearings. Also for the first time, defendants would have the right to appeal their sentences to a "Sentence review division," composed of three-judge panels appointed by the Chief Judge of the Superior Court.
The government could also petition the panel to review a sentence, but only if the offender was not ordered by the sentencing judge to serve time in prison, according to commission proposals.
With the appellate system, "a judge cannot take out his prejudices . . . without knowing there will be scrutiny," said a former commission member.
The proposals on sentencing procedure also advise the court to consider alternatives to imprisonment that would encourage the offender to focus his attention on the consequences of his act. Offenders could be sentenced, for example, to perform various "duties" under supervised release that could be perceived as "meaningful punishment."
The sentencing judge could also decide that the offender give some form of public notice - possibly in a newspaper - about his conviction, under the commission proposal. Such action could be particularly effective in deterring such crimes as consumer fraud.
As part of its sentencing model, the commission took the 70 offenses it defined in its basic criminal code and divided them into eight "grades" of offenses, based on society's perception of their seriousness.
For example, according to the commission chart, first degree homicide, considered a most heinous crime, is graded a Class A felony which carries a 20-year sentence. Failure to report a fire is classified in the least serious group of offenses - Class E misdemeanors - and carries a three-month sentence.
Commission staff attorney Seikaly emphasized that the term sentences set for the grades of crime were drawn up by the staff for discussion purposes and do not now represent the final views of the commission members.
As the system stands now in Superior Court, authorized prison terms run from a five-day minimum to life and include what the commission described as "an almost unmangageable variety of maximum terms and combinations of authorized minimum and maximum terms" such as one to 10 years, two to 15 years and five to 30 years.
Superior Court judges now have the discretion to sentence a person to no prison time and thus probation - or to the maximum term, which for some crimes could be life in prison. The judges can set minimum prison terms, not to exceed one third of the maximum term authorized for the crime. An offender could be considered for parole only after the minimum time set by the judge has been served in prison, Seikaly said.
About 70 per cent of the offenders are released by the parole board after they have served the minimum term, he said. The term sentences set down by the commission - which do not allow for parole - roughly coincide with the average amount of prison time now being served by offenders for various crimes, Seikaly said.
Some law enforcement officials have already complained that the term sentences set down by the commission's staff are too short. Seikaly said that the commission also intends to consider the question of capital punishment - which it is likely to reject - and life prison terms with no possibility of release for particularly serious crimes, such as mass murder.
While length of sentences should be the same for the same crime the commission said in its analysis that the "character" or conditions of the sentence "should be tailored to that offender and the uniqueness of his or her circumstance."
Thus, the commission said, a first offender who committed a robbery but caused no injury should not serve his term sentence in the same way as the repeat offender who used a gun during a robbery and caused an injury.
The mechanism proposed for the tailor-made sentencing plan is a set of guidelines for the sentencing judge.
Underguidelines for the two most serious felonies the judge should sentence the offender to serve at least two thirds or one half of the time in jail, with the balance to be served under supervised release.
For other crimes judges should weigh various factors. According to the commission, factors that favor imposing supervision include the offender's willingness to make restitution, substantial grounds to excuse his criminal conduct, no significant history of criminal activity and cooperation with law enforcement officials.
Imprisonment should be considered if the offender used a dangerous weapon, if the victim was subject to serious bodily injury or sexual assault, or if the offender was on bond or some form of first-conviction release at the time the crime was committed.
"Recidivism is perhaps the single most important condition pointing toward making imprisonment a component or the dominant component of a term sentence," the commission said in its analysis.
In what one commission staff member described as the "Watergate factor," the commission recommended that if an offender held a position of public or fiduciary trust at the time of the crime that should be a factor tending toward imprisonment.
The likelihood of imprisonment might deter those kinds of offenders "from violating their high responsibility," the commission said.
According to commission proposals, the judge in extraordinary circumstances may disregard the guidelines in formulating a sentence. But he must then set forth with detail his reasons in the court record.
After weighing all the factors, the commission said, the result could be that for a crime which carries a three-year term sentence - such as second degree burglary - the offender might be sentenced to serve one year in prison, one year under supervision and one year under minimal supervision. The city's Department of Probation and the Board of Parole would supervise offenders.
The new proposal also gives judges discretion to impose a fine of $50,000 for individuals convicted of a felony, and $5,000 for those convicted of a misdemeanor. If the offender is an organization, and thus not subject to imprisonment, fines are increased in the proposal to $100,000 for a felony and $50,000 for a misdemeanor.
The judge can also authorize that all or a portion of the fine be paid to victims of the offense.
Chief Judge Harold H. Greene is scheduled to give the commission his comments on their proposal at a hearing Saturday.