PART III.-SENTENCES

In Part III the Committee has sought to provide the basis of a rational, systematized, comprehensive sentencing system. The task is not a simple one, particularly since the objectives of the criminal justice system, and, accordingly, of any sentencing structure within that system, are varied and at times inconsistent.

2

In the course of assessing the objectives of the criminal justice system that should be reflected by the sentencing provisions of the Code, and in the course of drafting a sentencing system to implement those objectives that would be both philosophically consistent and realistic in terms of its utilization of resources, the Committee examined the current Federal sentencing system, the extensive testimony and written submissions presented in the course of the Committee's hearings,1 and the large body of literature that has been written on the subject. It can be said without qualification that there is no area of law in which a greater divergence of views may be found. Some would emphasize the paramount importance of one recognized purpose of sentencing; some would urge the paramount importance of another. Some would retain sentencing authority in Federal judges; some would assign the responsibility to a separate governmental entity. Some would make the choice of sentence an entirely discretionary matter; some would mandate the imposition of particular sentences. Some would assign the parole authorities all responsibility for determining the length of a prisoner's incarceration; some would employ fixed terms without the possibility of early release. The vastly disparate nature of the views held by thoughtful individuals made apparent the difficulty of discovering a panacea, and demonstrated the wisdom of several of the defined sentencing objectives and several possible means of implementation.

After its assessment of the supportable objectives, the Committee, deeming it the responsibility of the Legislative Branch not only to evaluate but to articulate the appropriate goals of the sentencing system, has set forth four goals which may be summarized as (1) just

1 See Part IV of the Hearings in its entirety (pp. 3573-4203) and also Hearings pp. 10111012, 1016, 1027, 1206. 1353. 1397, 1405-1406. 1420, 1473. 1495, 1541, 1544-1550, 1557, 1561, 1612, 1639, 1641, 1648, 1654, 1659, 1664, 1780, 1787-1788, 3414, 3420, 3557-3571, 4790, 4849, 5261-5263. 5310-5373. 5377-5379, 5392, 5423-5425, 5508-5570, 5599. 56125614, 5946, 5954-5955, 5986-6007, 6001-6626, 6643, 6654, 6796, 6800-6803, 6981-6982, 6989-6990, 7513.

2 Among the more recent are the following: Morris, The Future of Imprisonment (1974); Frankel, Criminal Sentences: Law Without Order (1973): Zimring and Hawkins, Deterrence: The Legal Threat in Crime Control (1973); National Advisory Commission, Criminal Justice Standards and Goals, Report on Corrections (1973); National Council on Crime and Delinquency, Model Sentencing Act (1963. 1972); American Friends Service Committee. Struggle for Justice (1971); National Commission on Reform of Federal Criminal Laws, Working Papers pp. 1245-1376 (1970); ABA Standards Relating to Probation (1970): ABA Standards Relating to Sentencing Alternatives and Procedures (1968) ABA Standards Relating to Appellate Review of Sentences (1968); The President's Commission on Law Enforcement and Administration of Justice. Task Force Report: Corrections (1973); American Law Institute, Model Penal Code (Proposed Official Draft) (1962).

punishment, (2) deterrence, (3) incapacitation, and (4) rehabilitation. The Committee has concluded that it is of major importance that those particular objectives of the system, as they become pertinent at specific junctures of the Code's sentencing procedure, should be delineated clearly and reiterated to the degree necessary to assure the appropriate focusing of the sentencing process.

Upon assessing the preferable means of achieving the selected objectives, the Committee found that the consensus of the views points. toward the retention of discretion in the sentencing process, but a guided form of discretion that can meet the tests of fundamental fairness and equality of treatment. Accordingly, the Committee has sought to devise a sentencing structure that will provide the judiciary and others involved in the sentencing process with sufficient direction to guide the intelligent exercise of discretion in a manner that will meet both the needs of the individual and the requirements of society. The four different categories of sanctions generally employed to achieve the purposes of sentencing are set forth in four separate chapters. First, the sanction of restrictions on freedom of action short of incarceration (probation-chapter 21); second, the sanction of monetary forfeiture (fines-chapter 22); third, the sanction of incarceration (imprisonment-chapter 23); and fourth, the sanction of forfeiture of life (death sentence-chapter 24). The provisions governing early release from incarceration, which of necessity must be drafted to interrelate carefully with the provisions of the chapter governing the sentencing of an individual to incarceration, are contained in the chapter governing the administration of imposed sentences (postsentence administration-chapter 38).

The provisions contained in these chapters are, in sum, designed to clarify the considerations appropriate to sentencing decisions and to correlate them with other provisions in the proposed Code. They are designed as an important step toward the desirable goal of adding system to sentencing. At the same time they are not intended to force a court along one narrow approach in any particular case 3 but rather to provide the court with the kind of guided flexibility needed to deal appropriately with widely differing offenders and offenses.*

3 An exception, of necessity, exists for the imposition of the death penalty. See the discussion of the provisions of chapter 24, infra.

4 While there has been criticism of the current sentencing system wherein Federal courts are permitted absolute discretion in determining an appropriate sentence in any given case, such criticism has largely been prompted by the lack of a review mechanism by which sentences at the extremes of the authorized ranges could be reexamined. The Code's provision for appellate judicial review of such sentences (section 3725) should remove the principal basis for such criticism; the Code's several requirements for the examination of the available options in light of the goals of the system should help to remove most of the remaining basis for such criticism.

CHAPTER 20.-GENERAL PROVISIONS

(Sections 2001-2006)

This chapter introduces some of the general aspects of the sentencing process. It lists the authorized sentences for both individual and organizational offenders; provides for presentence reports; states the availability of collateral measures involving criminal forfeitures and notice to victims of frauds; and makes references to other provisions of the proposed Code governing review and implementation of

sentences.

SECTION 2001. AUTHORIZED SENTENCES

1. Present Federal Law

Section 2001 has no direct counterpart in current law. Generally, each criminal statute in existing law states its own authorized penalties. In addition there is generally available a provision for probation under 18 U.S.C. 3651. But nowhere in the present code does there appear a statement of the general theory of sentencing or of the forms of sentences available for particular types of offenders.

2. Provisions of S.1, as Reported

Subsection (a) provides that all convicted offenders shall be sentenced in accordance with the provisions of the chapter "so as to achieve the purposes set forth in paragraphs (1) through (4) of section 101 (b)." The referenced paragraphs set forth the basic purposes of sentencing-just punishment, deterrence, incapacitation, and re

habilitation.

In a particular case these purposes may be achieved in differing degrees by the different forms of sentences. Upon deciding, in light of the nature of the offense and the circumstances under which it was committed, and in light of the particular needs of the defendant, what objectives of sentencing should be the goal of the sentence in a given case, the court will choose from among the available kinds of sentences those that would appear on balance to be best suited to meeting the combined objectives. For example, in a case in which there appeared to be little need for a sentence to reflect just punishment or to provide either general or special deterrence, the imposition of a fine would ordinarily appear to be of little value. On the other hand, in a case involving a white collar offender who committed a crime while in a position of trust, the imposition of a fine for purposes of just punishment and deterrence might well be appropriate; the imposition of imprisonment for those same two purposes might also be appropriate, but the imposition of imprisonment for purposes of incapacitation might not be warranted since he probably will never again be en

1 The subject of general deterrence as a basis for imprisonment has been comprehensively -discussed recently in United States v. Foss, 501 F.2d 522 (1st Cir. 1974).

trusted with such a position as a result of the conviction itself, and similarly rehabilitation in the usual sense of the term may be unnecessary under the circumstances. This part of section 2001, as well as similar provisions occurring throughout part III, are designed to keep the focus of the sentencing process upon the objectives to be achieved by it, and to encourage the employment of probation, of fines, of imprisonment, or of combinations thereof, in a fashion tailored to achieve these multiple objectives.2

Included in section 2001 for the sake of clarity are subsections (b) and (c). The former specifies that an individual offender must either be placed on probation, fined, imprisoned, or sentenced to death, as provided in the chapters governing the imposition of such sentences. It further states that a fine may be imposed in addition to any other sentence. The effect is to require the imposition of some sentence and partially to exclude a split sentence.*

6

3

Subsection (c) states the available sentences for an organization. These are limited to probation, a fine, or both probation and a fine. Thus, organizations are not subject to a form of imprisonment or to death a seemingly obvious exclusion. However, S. 1 as introduced in the 93d Congress 5 provided for suspension of commercial activities, a provision tantamount to organizational imprisonment or death. The Committee has not included such a provision since on close consideration it was felt that the proposal was potentially too harsh in operation. Where an organizational offense is so serious that such a result would be warranted then the heavy fine provisions, coupled in an appropriate case with the notice provisions that are designed to provide fraud victims a real opportunity to seek monetary compensation, might well achieve an equivalent end. But the power to destroy a commercial entity in such a situation would not, generally, rest with the judge alone, and the economic damage to the entity would then more certainly bear a direct relationship to the economic harm the entity has done to society. Moreover, where the purpose of suspension of commercial activities would be to remove an organization from a particular field of commerce where it has shown that its practices are harmful to society, then the condition of probation suggested in section 2103 (b)(6) could effectively be applied to achieve that result.

The sentences authorized, when read in relation to the more particular provisions of the following chapters, provide a wide variety

2 There are those who would argue that sentencing should be made so systematic and mechanized that through the employment of check lists and charts and computation formulas-only one particular sentence will be found available for a given defendant committing a given offense, thereby eliminating all vestige of judicial discretion. On the other hand, there are those who argue that the determination of an appropriate sentence is a matter particularly suited for a discretionary approach, and that unlimited discretion on the part of Federal judges is not only appropriate but desirable. The Committee, by requiring a focus upon the objectives of the criminal justice system and by making certain sentences available only to implement certain of those objectives, has elected a middle course which, upon balance, appears to be the best suited one. This approach is not intended, however, to preclude development by the Judicial Conference of the United States of such guidelines as it feels appropriate for consideration by judges in determining the sentences to be imposed within this statutory framework.

3 The National Commission's recommendation of an alternative of "unconditional discharge" (Final Report §§ 3001, 3105) is believed by the Committee to be inappropriate from a standpoint both of logic and of policy. In any event, in a compelling case a substantially similarut less objectionable result can be obtained through a sentence to unsupervised probation for a suitable period. See sections 2101 (b) and 2103.

4 But see section 2103 (b) (11).

5 Section 1-4A1 (c) (1).

Compare the more limited form of split sentence available as a condition of probation in section 2103 (b) (6).

A heavy fine would, of course, be subject to the judicial review provisions of section 3725.

of sentencing alternatives and, when read in relation to the sentencing purposes of section 101, provide the basis for constructive sentencing as well.

SECTION 2002. PRESENTENCE REPORTS

1. Present Federal Law

The basic provisions dealing with presentence reports are currently found in Rule 32 (c) of the Federal Rules of Criminal Procedure. The Rule requires that a presentence report be made unless the trial court orders otherwise. The probation service is given wide discretion in determining what matter will be inserted in the report with few limitations on the kind or source of the information. The court also is given broad discretion in determining whether the defendant will be permitted to see all or part of the report."

18 U.S.C. 4208(b) provides that the district court may commit a convicted offender to the care of the Bureau of Prisons for a more detailed report and analysis. The report and the recommendations of the Director of the Bureau are then to be presented to the court. A maximum presentence confinement of six months is currently permitted. under this procedure.

2. Provisions of S. 1, as Reported

The provisions of section 2002 roughly parallel those in current law. Under subsection (a), presentence reports are required to be prepared by the probation officer in accord with the provisions of Rule 32.10 Given the desirability of reducing unwarranted disparities in sentences of essentially similar offenders committing essentially similar offenses, and given the need of the court for information upon which to predicate an intelligent evaluation of the length of sentence necessary for just punishment, deterrence, incapacitation, and rehabilitation, it is expected that to the extent possible there will be included in presentence reports such information as can be obtained from the Administrative Office of the United States Courts and from other sources as will indicate the range and median of sentences ordinarily given in cases similar to the case at issue, the range and median of the time served in confinement under such sentences prior to release on parole, and, to the extent obtainable, the rate of recidivism of such offenders as a class.

As a result of subsection (b), if the court desires more information it may assign the offender to the custody of the Bureau of Prisons for a period of study not to exceed 180 days (90 days plus one permissible 90 day extension), as it may under the present 18 U.S.C. 4208. The Bureau's report and recommendations are then submitted to the

court.

8 United States v. Tucker, 404 U.S. 443 (1972).

See, e.g., United States v. Gardner, 480 F.2d 929 (10th Cir. 1973); United States v. Schrenzel, 462 F.2d 765 (8th Cir.), cert. denied, 409 U.S. 984 (1972); United Statesy. McKinney, 450 F.26 943 (4th Cir. 1971). But see United States v. Picard, 464 F.2d 215 (1st Cir., 1972).

10 Rule 32 requires such reports unless the court, upon stating its reasons, orders otherwise. An appropriate reason for declining to order a presentence report would arise in a capital case in which, after a hearing under section 2402 is held, the death penalty is mandated; since the imposition of the sentence would not be a matter of discretion there would be no purpose in ordering a report of information that is designed essentially to provide a basis for the intelligent exercise of discretion. An appropriate reason in a more routine case would be, for example, that the court had been provided a presentence report concerning the same defendant in a case tried only a few weeks earlier.