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Published online by Cambridge University Press: 16 January 2009
Professor Davis has generated renewed debate on the subject of “discretionary justice” by the recent publication of his book by that title. His thesis, basically, is that the subject is capable of study, and that we should devote more of our resources to the study and less to the traditional court- and rule-oriented approach that is so characteristic of the legal profession and of legal scholarship. He is surely right that the manner in which discretion is exercised—by the policeman deciding whether to arrest; by the prosecuting officials determining whether to prosecute—more frequently constitutes the relevant “law” of a given situation than the formal rules that we write down in statute books and in judicial opinions.
1 Davis, Discretionary Justice—A Preliminary Inquiry (1969). See also “Confining and Structuring Discretion,” 23 J. Legal Ed. 56 (1971)Google Scholar (Round Table discussion by Professors Davis and Reiss and Judge Friendly).
2 See, e.g., “The Impact of Supreme Court Decisions, The Supreme Court Speaks and What Happens?” 23 J. Legal Ed. 77 (1971)Google Scholar, “The School Prayer Case,” 23 J. Legal Ed. 106 (1971).Google Scholar An English example of the same point is afforded by the “suspended sentence” law passed in 1967, the purpose of which was to reduce the incidence of prison terms but the effect of which was quite the opposite.
3 See Wechsler, “The Challenge of a Model Penal Code,” 65 Harv.L.Rev. 1097 (1952).
4 Criminal Law Revision Committee, Eighth Report, Theft and Related Offences, Cmnd. 2977, p. 30. See also pp. 7–9.
5 Though the figures are too general to be of much use, a comparison of 1964 figures reveals that in the United States about 52 per cent, of the offenders nationwide who were sentenced to one year or more in prison were sentenced to a term of five years or more. The comparable figure in England and Wales was about 4 per cent. In the same year in the United States, 28 per cent, of all offenders sentenced to one year or more were sentenced to terms of 10 years or more. The comparable figure in England was about 1 per cent. The figures are extrapolated from National Prisoner Statistics, State Prisoners: Admissions and Releases, 1964, Table A4, and Report of the Work of the Prison Department, 1968, Statistical Tables, Cmnd. 4266, Table C5 (January 1970).
6 In 1964, in spite of the statistics recited in note 5, only 8.6 per cent, of the offenders given their first release from a prison sentence of one year or more actually served five years or more. The median time served by that group was 21 months. See National Prisoner Statistics, State Prisoners: Admissions and Releases, 1964, Table R6.
7 For further details, see ALI, Model Penal Code, ss. 6.06, 6.07, 6.08, 6.09, 7.03, 7.04, 7.07 (P.O.D. 1962); ABA Standards, Sentencing Alternatives and Procedures, ss. 2.5, 3.1 (Approved Draft, 1968); Final Report of the National Commission on Reform of Federal Criminal Laws, para. 3203 (1971). See also Low, “Special Offender Sentencing,” 8 Am.Crim.L.Q. 70–76 (1970).
8 For example, 10 years is the maximum for theft under the new Theft Act, including petty larceny. The maximum for robbery is life imprisonment and for burglary 14 years or life, depending upon certain aggravating factors. The latest edition of Archbold's Pleading and Practice lists, in the Appendix, Table of Principal Indictable Offences, some 81 different offences still carrying a life maximum, plus about 21 common law offences without any statutory maximum, thus making over 100 offences for which life imprisonment is still legally possible in England.
9 Pub. Law. 91, 91st Cong. (S.30), 15 October 1970.
10 The limit was later reduced to 25 years.
11 In Florida, for example, a former student of mine counted 524 different offences which had 149 different penalty combinations. There were 20 different varieties of authorised sentence which shared the common denominator of a five-year maximum prison term. In Arizona, he counted about 120 offences which were merely classified as “felony” or “misdemeanor,” each of which carried a specified authorised range, but found in addition 168 unclassified offences the authorised sentences for which were stated in more than 100 different ways. In Oregon, to give one last example, 1,413 different offences were counted in a similar study, yielding 466 different ways of stating the authorised sentencing alternatives. See Beckett, “Criminal Penalties in Oregon,” 40 Ore.L.Rev. 1, 71 (1970).
12 1, 2, 3, 4, 6 and 18 months, and 1, 2, 3, 5, 7, 10, 14 and 20 years, and life.
13 See, e.g., Wootton, Crime and the Criminal Law (1963), p. 44: Justice Committee Report, “Legal Penalties: The Need for Revaluation” [1959] Crim.L.R. 393.
14 For a summary of American laws on this point, see ABA Standards, Sentencing Alternatives and Procedures, pp. 143–60 (Approved Draft, 1968).
15 The percentages have been extrapolated from National Prisoner Statistics, State Prisoners: Admissions and Releases, 1964, Table R1.
16 For two illustrations of the proposal in statutory form, which differ considerably in their detail, see ALI, Model Penal Code, s. 6.10 and art. 305 (P.O.D. 1962); Final Report of the National Commission on Reform of Federal Criminal Laws, ss. 3201, 3402, 3405 (1971).