Notes
1
For a fuller description of the evolution and major features of Morris's theory, see Frase (1997).
2
The commentary goes on to state that proportionality limits can also be supported “on enlightened utilitarian grounds” (given the risks of mistake and abuse, of weakening the link between sanctions and social condemnation, and of undermining citizens' sense of security and control over their lives).
3
See also U.S. National Advisory Commission (1973), Standard 5.2(2) (sentencing criteria should include provision “against the use of confinement… unless affirmative justification is shown on the record”).
4
Under Standard 18–2.2(a), sentencers should “give serious consideration to the goal of sentencing equality and the need to avoid unwarranted disparities.” Standard 18–3.2(a)(ii) urges sentencers to “treat like cases alike” except where “compelling reasons” require inequality.
5
See also Council of Europe 1993, Arts. A4, B2, B5a, and D2 (disproportionality between offense and penalty seriousness should be avoided; sentence ranges should guide courts as to crime seriousness, but minimum penalties should not prevent courts from considering individual circumstances; custodial sentences should be the sanction of last resort; sentences may take into account prior convictions, but should be kept in proportion to the current offense).
6
Within offense levels (grid rows), the presumptive prison duration for the highest criminal history category is on average two times the duration for the lowest criminal history score; within criminal history categories (grid columns), the presumptive duration for the highest offense level is on average 26 times the duration for the lowest offense level (MSGC 2002). Nevertheless, some desert theorists have claimed that the impact of prior record in Minnesota is far greater than can be justified under a true just deserts model (von Hirsch 1994, pp. 39–40).
7
There are, however, a few statutory provisions imposing minimum jail terms, see, e.g., Minn. Stat. Annot., § 609.583 (presumptive sentence for first-offense residential burglary is a 90-day jail term, restitution, or community service).
8
Morris accepted a more limited form of “encouragement” to enter prison programs: the inmate may be compelled to participate in such a treatment program long enough to ”know what it is about“ (1974, pp. 18–19).
9
Morris and Tonry (1990) probably intended to authorize but not require judges to impose up to full equivalent severity, when switching between sanction types. They recognized the political reality that in most jurisdictions in 1990 the public and its officials would not agree to move offenders from custody to intermediate sanctions unless the latter could be seen to be “roughly” as punitive (pp. 83,90). Also, to the extent that such sanctions are used to replace straight probation, equivalency rates serve to ensure that the aggregate severity of these sanctions (including eventual revocation to prison or jail) stays within upper desert limits.

-113-

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The Future of Imprisonment
Table of contents

Table of contents

  • Title Page *
  • Preface v
  • Contents *
  • Contributors viii
  • The Future of Imprisonment *
  • 1 - Has the Prison a Future? 3
  • References *
  • Part I - How Much Imprisonment Is Too Much? 25
  • 2 - Crime, Law, and the Community: Dynamics of Incarceration in New York City 27
  • Notes *
  • References *
  • 3 - Restoring Rationality in Punishment Policy 61
  • Notes *
  • References 79
  • Part II - Going in 81
  • 4 - Limiting Retributivism 83
  • Notes 113
  • References *
  • 5 - Sentencing Reform “Reform” through Sentencing Information Systems 121
  • Notes *
  • References *
  • Part III - Being There 154
  • 6 - Democracy and the Limits of Punishment: a Preface to Prisoners' Rights 157
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  • 7 - Prison Reform amid the Ruins of Prisoners' Rights 179
  • Notes *
  • References *
  • Part IV - Coming out 197
  • 8 - Questioning the Conventional Wisdom of Parole Release Authority 199
  • Notes *
  • References *
  • 9 - The Future of Violence Risk Management 237
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