-94 (2) Limited Applicability of Flat Sentences: Important penal realities also emerge from the recent testimony on September 14, 1979, before the House Judiciary Subcommittee on Criminal Justice by Cecil C. McCall, Chairman of the United States Parole Commission. Mr. McCall initially made the important point: "So much as been said and written publicly about criminal code reform that we have to be careful lest the public believe, if they don't already that you are considering a crime control measure. It is doubtful if criminal code reform will reduce crime. The purpose of your sentencing reform effort, as I understand it, is to reduce unwarranted disparity in criminal penalties. Thi is, in itself, a worthy goal and it is on this basis that the Subcommittee's effort should be judged." Mr. McCall made the further important point in urging retention of the Parole Commission and of parole: "It is to be noted that about 75 percent of all Thus, Mr. McCall made clear that some 75 percent of all present convicted federal defendants do mt come within the proposed sentencing guidelines at all. It can hardly be said that where 75 percent of defendants receive probation, fines, or imprisonment of one year or less that there will be a truly significant "deterrent" effect. The reverse side of the coin is, however, that there will unquestionably be longer prison terms for the 25 percent of Convicted federal defendants who come within the proposed sentencing guidelines. 45. Abdication of Congressional Responsibility in Delegatin Power Over Sentencing Guidelines to a Sentencing ommission: Section 991 of Chapter 58 et seq. deals with the Sentencing Commission that S. 1722 would establish. The proposed Sentencing Commission is clearly regarded as the archstone for the S. 1722 treatment of sentencing. Thus Senator Kennedy stated in co-sponsoring the predecessor bill, S. 1437 (Cong. Record, May 2, 1977, at 8 6839): -95 "First and foremost, the new bill overhauls the entire Federal sentencing process by adopting many of the sentencing reforms I suggested in S. 181, 'the sentencing guidelines bill,' introduced with broad, bipartisan support, including the cosponsorship of Senator McClellan on January 10, 1971). I view the sentencing provisions as the key reform of the entire bill. The bill sets forth four generally recognized purposes of sentencing - deterrence, protection of the public, assurance of just punishment and rehabilitation. A sentencing commission is created and directed to establish guidelines to govern the imposition of sentences for all Federal offenses, taking into consideration factors relating to the purposes of sentencing, the characteristics of the offender, and the aggravating circumstances of the offense. "In sentencing offenders, a judge will be expected to sentence within the range specified in the guidelines, although if he considers the guideline range inappropriate for a particular case he is free to sentence above or below the guideline range as long as he explains his reasons for doing so. If an offender is sentenced below the range specified in the guidelines, the Government may obtain appellate review of the sentence. If an offender is sentenced above the range specified in the guidelines, the offender may appeal. This system is designed to promote greater uniformity and fairness, while retaining judicial flexibility. Under this new approach, the gross disparities in sentencing found in current law should be significantly reduced." (Emphasis supplied). H.R. 2311 of the 95th Congress did not provide for a Sentencing Commission. The Sentencing Commission would clearly undermine judicial integrity and responsibility. As John J. Cleary stated on behalf of the National Legal Aid & Defenders Association (Senate Hearings, Part 13, p. 9136): "Sensitive to the import of his decision, the judge must 、-96 As Hilton G. Rector advised this Senate subcomittee in his testimony on September 24, 1979, S. 1722 in actuality instructs the Sentencing Commission to utilize current record high levels of incarceration and current excessively long averages of time served as the basis for establishing future sentencing guidelines, The position paper and testimony submitted to the House Judiciary Subcommittee on Criminal Justice of the Federal Public and Community Defenders on what is now S. 1723 states bluntly that, "The shallow treatment of the gußdelines and the powers and duties of the Sentencing Commission raise substantial questions regarding the impact of the Sentencing Commission on the disposition of offenders. "" The Federal Public and Community Defenders "strongly" recommended that the proposed guidelines be advisory rather than mandatory. The defenders added: We have no objection to mandatory consideration Referring to the House tentative draft (1.8., S. 1723), the Federal Public and Community Defenders stated: thout mandatory guidelines, the bill would provide: (1) sentencing goals (section 3102), (2) factors to be considered in sentencing (section 3103), (3) a statement on the record of the reasons for the sentence (section 3104 (c) (4)), and (4) appellate review of the process. That is far more guidance and review of the sentencing process than ever before. We believe it will be enough to ameliorate present problems and is far more workable than mandatory guidelines, We also suggest a five year study to monitor the plan's effectiveness in reducing unwarranted disparity. The New Jersey Coalition to Defend the Bill of Rights similarly opposes mandatory guidelines. Moreover, we fail completely to comprehend why parole release should be abolished in favor of an untried sentencing system. If there is to be a Sentencing Commission, we endorse the sensible proposal of Cecil C. McCall, Chairman of the United States Parole Commission, made to the House Judiciary Subcommittee on Criminal Justice in his testimony on what is S. 1723 on September 14, 1979: "Parole guidelines cannot eliminate all disparity in sentencing. There should be guidelines to help Judges make sentencing decisions. But I cannot understand why a plan to reduce judicial sentence disparity should abolish the parole release function, the one effective disparity-reducing tool we now have, particularly before the proposed substitute has been adequately tested." Mr. McCall accordingly urged the House subcommittee to adopt its alternate proposal which would retain the parole guidelines and other features of the Parole Commission and Reorganization Act of 1976, in conjunction with the addition of sentencing guidelines. -97 46.Mandatory Minimum Sentences Imposed By S. 1722:: S. 1722 contains two provisions which border on a mandatory minimum sentence. Sec. 181 (a) and (b),, Trafficking in an Opiate, denies probation to the convicted defendant and requires the court to sentenca him, "after consideration of the factors set forth in section 2003 (a) to a term of imprisonment of not less than two years, th the sentence to run consecutively to any other term of imprisonment imposed upon the defendant, unless the court finds thet, at the time of the offense, the defendant was less than eighteen years old; the defendant's mental capacity was significantly impaired, although the impairment was not such as to constitute a defense to prosecution, the defendant was under unusual and substantial duress, although not such duress as would constitute a defense to prosecution; or the defendant was an accomplice who se participation in the offense was relatively minor." the identical presumptive mandatory minimum sentence, except for the stated exception, is similarly applicable to Sec. 1822, Using a Weapon in the Course of a Crime. This language of exception is derived from the language used to permit a jury to avoid the imposition of the death penalty for aircraft piracy. 49 U.S.C.A. 1473 (6). Such mandatory minimum sentences do not belong in ahy reasonable sentencing scheme. Such mandatory minimum sentences should be deleted from any revision of the criminal law. Mandatory minimum sentences fall short of their pronounced ain - to deter crime. They serve to redirect sentencing discretion now held by judges to the prosecuting attorneys who engage in practices which subvert the rights of offenders. Moreover, mandatory sentences represent a simplistic and politically expedient approach to attacking these two important aspects of crime trafficking in an Opiate (or drug) and using a weapon in the course of a crime. Both present problems which plainly require a more thoughtful approach. See Crystal, The Proposed Federal Criminal Justice Act of 1975: Sentencing Law and Order With a Vengeance, 7 SETON HALL DAN REV. 33,45 (1975). The New Jersey Coalition to Defend the Bill of Rights strongly opposes mandatory minimum sentences. 47. Abolition of Parole: S. 1722 abolishes parole, as does al so S. 1723. This is done instead of increasing the opportunities for early release. The New Jersey Coalition to Defend the Bill of Rights has no illusions about the manner in which parole has been abused in our federal and state correctional systems. Parole has been arbitrarily denied those fully entitled to it, and has been flagrantly misused with respect to prison activists. In practice, it has proved to be a potent weapon to protect the prison bureaucracy against challenge from within the cages we call prisons. Nevertheless, it has also functioned as a means of alleviating tho savage sentences frequently handed down by the federal judges. The flaws in the federal parole system should be corrected. The remedy, however, is most certainly not to terminate parole as both S 1722 and S. 1723 would do (with respect to S. 1723, no decision has yet been made, and the future disposition of parole is one of the many bracketed items. In the recently promulgated ABA Sentencing Alternatives and Frocedure, ABA stated with respect to the function of the Parole Commission: 98 "The parole system performs important fail-safe the safety net should be the last step, not the first," In essence, both S. 1722 and S. 1723 would abolish parole and meet the problem of sentencing disparity by creating sentencing guidelines. Thus, the judiciary is being handed the task of enforcing the basic guideline concept as developed by the U.S. Parole Commission. The Parole Commission's role 15 determining the prisoner's actual duration of confinement. While this solution appears "theoretically tidy," as Cecil b. McCall, Chairman of the United States Parole Commission, advised the House Judiciary Subcommittee on Criminal Justice in his testimony before them on September 14, 1979, on Bhat is before the Senate Judiciary Subcommittee as S.1723,, there clearly are a number of serious practical problems with this approach. Those include: a. Problems with the applications of guidelines by 550 district Juiges for shom sentencing is only a small part of an extremely busy and demanding schedule. b. Problems with the Sentencing Commission's role, growing out of the lack of power of the proposed Commission to ensure compliance by the Judges in interpreting its policies, in dealing with the direction taken by the various courts of appeals in promulgating the guidelines it has promulgated, and in reviewing particular cases except for purposes of research and monitoring, after the sentence becomes final. c. Problems with appellate review as a limited and partial compliance mechanism for judicial guidelines. The New Jersey Coalition to Defend the Bill of Rights is strongly of the opinion that, if this omnibus criminal code is, in fact, enacted into law, despite all the reasons set forth in this statement why it is unwise to do so, and why the incremental approach recommended by the Mann subcommittee is much preferable, there should be retention of the system of parole, including the United States Parole Commission. We have been deeply impressed in reaching this recommendation by the cogent statement of John J. Cleary on behalf of the National Legal Aid and Defender Association, submitted on September 7, 1979, to the House Judiciary Subcommittee on Criminal Justice. We heartily endorses the reasons there offered by the federal defenders, represented by Mr. Cleary, way the Parole commission should be preserved: a. The Parole Commission has done the initial work in the development of guidelines (18 U.S.C. 4203 (a) (1)) and their substantial experience with the guidelines, even though imperfect, should not be disregarded or disoarded with the creation of a new inexperienced agency.It must be remembered at all times that there are many persons now in federal prisons serving sentences subient to narols. Accordingly, the Parole Commission, or some |