Chief Judge Harold H. Greene of the D.C. Superior Court yesterday said that a judge's discretion in sentencing criminals should be "severely" restricted by law, with exceptions only for the most unusual cases.
"What we must search for," Greene told the D.C. Law Revision Commission, is a new sentencing procedure that will "reduce disparities" in punishment without "falling into the trap . . . of mandatory fixed sentences."
The commission has proposed a sweeping revision of current sentencing procedures that would, among other things, eliminate parole, establish a kind of system of fixed sentences, and allow for review of sentences by a panel of Superior Court judges.
At the opening of yesterday's hearing, at which Greene was the sole witness, commission chairman Stephen I. Danzansky jokingly remarked that the commission had been in an "ivory tower" wrestling with "this very sticky, very difficult proposal" and was now eager to hear and consider Greene's comments.
With that, the chief Judge - whose court would be profoundly affected by the porposed changes - explained in detail his criticisms of the proposal, much of which went to the heart of some of the major changes the commission has recommended in an attempt to achieve fair and uniform sentencing procedures.
The recommended procedures are part of a major overhaul of the D.C. Criminal Code - last revised in 1901 - proposed by the Law Revision Commission, which is composed of lawyers and community representatives. The code revisions are subject to congressional approval before they become law.
Basically, the commission has proposed that the new law state fixed "term" sentences for specific crimes - such as 15 years for abduction - but that judges be authorized to set the "character" of the sentence. The "character" of a sentence could include a prison term, supervision or a combination of both and would be fixed by teh judge on the basis of a set of guidelines included in the revised code.
Under the commission-model, judges would have to hold fact-finding hearings before each offender was sentenced and then set down in the court record their justification for imposition of a particular sentence.
Sentences could be appealed to what would be known as the Sentence Review Division of the Superior Court composed of three-judge panels appointed by Greene.
Greene told the 13 commissioners who attended yesterday's hearing that new legislation should spell out the purposes for sentencing, both for the guidance of judges and "to make the community more fully aware of the various objectives of the criminal justice process."
Then, Greene said, a sentencing judge should be required in every case involving a felony to state "what he regards at the . . . primary purpose of his sentence" - punishment, rehabilitation, deterrence or isolation of the offender to protect the community.
Along those lines, Greene indicated that he did not favor the commission's proposal to eliminate parole in all cases. He suggested instead that the parole board continue to have discretionry authority over inmates if the trial judge's goal at sentencing was rehabilitation.
Green said he was not willing to say - unlike other legal commentators - that the parole board cannot be trusted to decide fairly when a prisoner was rehabilitated.
If the goal at sentencing was punishment or deterrence, the parole board should have no say over when an inmate is released from prison Greene said. His suggestions were included in a 34 page statement distributed to the commissioners yesterday.
Greene also told the commission that he thought the proposals should be tightened to hold judges to stricter guidelines than those recommended in the revised code. He said, however, that in unusual cases the judges should have the leeway to act outside those restrictions, provided they give detailed reasons for their action.
Basically, Greene suggested that the commission restrict the judges to a range of presumptive sentences for specific crimes. In turn, Greene said the commission should not require the judges to have sentencing hearings for each case and should not provide for review rights. If the judge has acted within the prescribed range.
Greene estimated that it would require seven to 10 judges to carry out the sentencing procedures outlined in the commission proposal.
Yet, Greene told the commissioners, the fact-finding hearings would have "relatively little utility" while putting "an enormous burden" on the Superior Court.
Moreover, Greene said, "there is strong potential for antagonism in a system which vests the judges of a court with the authority to review and alter decisions of other judges of the same court," as the commission proposal provides.
Greene proposed instead that there be fact-finding hearings and rights to appellate review only if the trial judge decides to depart from the set sentencing ranges.
At the close of yesterday's hearing, chairman Danzansky characterized the differences between teh commission's proposals and Greene's suggestions as "a question of mechanics.
"I think they are different methods of getting to the same thing," Danzansky said, and will have to be studied by the commission.