[The following excerpts are taken from Professor Jerold Israel's revision of the late Hazel B. Kerper's Introduction to the Criminal Justice System ( West Publishing Co. 1979), with permission of the author and publisher. Footnotes have been omitted.] As we have seen, judges usually have substantial discretion in sentencing. Most states give them considerable leeway in choosing between probation and imprisonment, in setting the term of imprisonment under either an indeterminate or determinate sentencing structure, in deciding whether a young offender will be given the special benefits of a youthful offender statute, and in determining whether to impose consecutive or concurrent sentences for multiple convictions. In some jurisdictions, judges even have the final say as to whether an extended term will be imposed under a habitual offender charge. Judicial discretion in sentencing is one of the most hotly debated subjects in the criminal justice field today. Few experts are satisfied with the present system, but there is a sharp division among critics as to what reforms are needed. Some argue that extensive judicial discretion is basically correct, but minor modifications would be valuable so as to more carefully control the exercise of that discretion. Others argue that the discretion must be taken away from the judges and either placed elsewhere or largely eliminated from the sentencing process.
Publication Information & Recommended Citation
Israel, Jerold H. "Sentencing, the Dilemma of Discretion." In Judicial Discretion, edited by J. E. Smithburn, 13-29. Reno, Nev.: National Judicial College, 1980.