Document Type

Article

Publication Date

1988

Abstract

Although procedural due process requirements govern the proof of a violation in a probation revocation hearing, judges exercise almost total discretion in deciding what sanctions to impose once a violation is established. These postsentence judgments can be as important as the initial sentencing. Sanctions for even minor probation violations can range from obligating a probationer to meet with his probation officer more frequently to executing a suspended prison sentence. The Supreme Court recognized in Morrissey v. Brewer that the choice of sanctions is often more complex than the proof of a violation. Principles must be developed to regulate postsentence sentencing.

Although judicial sentencing discretion and resulting sentence disparities have been the subject of major reform efforts, current sentencing reform movements have failed to understand that the determination of probation revocation sanctions is a major form of sentencing. Considerable disparities may exist in how judges make sanction decisions; however, this question has received so little attention that the full extent of disparities is unknown.

This Article proposes a procedure that would require judges to produce a written explanation of why they chose a particular sanction; such would help curb judicial discretion as well as create a badly needed body of knowledge about this area.

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