West Virginia Law Review

Document Type



The time is ripe for a major restructuring of our criminal sanctioning systems. Pressures for change are arising from many sources. As crime rates continue to rise and public fear of crime grows apace, thoughtful persons from many walks of life are more strongly articulating the need to find a different method of dealing with those convicted of violating the criminal law. The criminal prosecutions and dispositions arising from Watergate and related cases have brought many of the issues of unequal justice into the thoughts of American citizens. Proposals for criminal and penal code revision await action in legislatures throughout the country. Judges find a growing percentage of their workload being devoted to hearing and attempting to resolve complaints from convicted offenders concerning the nature of their sentences, the conditions of their confinement, and the procedures by which their lives are governed. This article will highlight some of the major problems, sources of confusion, and matters of controversy that surround present sanctioning practices. The subject areas to be addressed include sentencing discretion, lack of clarity or consensus regarding the purposes to be served in imposing criminal sanctions, dispartity in sentencing, the acceptability of current sanctions by humanitarian and legal standards, and the parole release function as a part of sentencing. A number of officers, institutions, and forces impinge upon or influence the nature and duration of sanctions. This article will focus primarily on the legislature, judiciary, and paroling authorities as they impact on the sanctioning process, excluding discussion of a number of other critical actors. The problems that will be highlighted in these three areas reflect flaws that are endemic throughout the criminal justice process. The article will also summarize the major types of reform that have been suggested in the last ten or fifteen years. This review of the problems that characterize present sanctioning practices and of proposed remedies is not intended to be fully exhaustive of the subjects raised. Rather, the intent is to reiterate the flaws in the system, already catalogued in much greater detail elsewhere, as a prelude to addressing the inadequacy of most of the existing proposals for change. Many of our present sanctioning practices are performed in ways, or result in ends, that are unlawful, unjust, ineffective, and inhumane. Decisions regarding where and how thousands of persons may spend years of their lives are left to individuals whose discretion is unguided by clear objectives and virtually unchecked by procedural requirements or further review. In view of the awesome power embodied in sanctioning decisions and their critical impact on American citizens, the current state of the criminal sanctioning process is appalling. Complete restructuring of our sanctioning practices is necessary, requiring a reconceptualization of both the purposes that a criminal sanctioning system should be designed to serve and the most sensible practices for achieving the desired goals. Social change seldom arises simply from presentation of facts showing that the status quo is ineffective. This may be a necessary condition for change, but it is not a sufficient one. What is needed is a vision of a new way-a vision that is compelling enough to attract sufficient number of adherents to achieve its implementation. This article is designed to assemble the major arguments concerning why a new model for criminal sanctioning is needed and to offer some directions such a model might follow.



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