1 Cf. Marvin E. Frankel, Criminal Sentences: Law Without Order (New York: Hill and Wang, 1973).CrossRefGoogle Scholar

2 Some studies compared overall sentencing patterns across judges on the assumption that random assignment of cases produced comparable sets of offenders and offenses for each judge to sentence (e.g., Frederick Gaudet, Individual Differences in the Sentencing of Judges, 32 Arch. Psychology 1 (1938); George Everson, The Human Element in Justice, 10 J. Crim. L. & Criminology 90 (1919)). In practice, considerations of court management (e.g., bypassing a judge already burdened with one or more long trials) or simple carelessness may interfere with a random assignment rule. In addition if judges differ in their rates of conviction or their rates of guilty plea, their mix of cases will differ at sentencing even if random assignment of cases has been strictly followed.Google Scholar

3 Anthony Partridge & William B. Eldridge, The Second Circuit Sentencing Study: A Report to the Judges of the Second Circuit (Washington, D.C.: Government Printing Office, 1974).Google Scholar

4 Shari Seidman Diamond & Hans Zeisel, Sentencing Councils: A Study of Sentence Disparity and Its Reduction, 43 U. Chi. L. Rev. 109 (1975).CrossRefGoogle Scholar

5 With the mean of the two sentences equaling 100 percent. Id. at 123, table 6.Google Scholar

6 Id. at 146, table 27.Google Scholar

7 Id. at 137.Google Scholar

8 Maine requires trial judges to give reasons at original sentencing. Me. Rev. Stat. Ann. tit. 15, secs. 2141-2144 (Supp. 1975). Maryland requires statements of reasons in all appealed cases. Md. Ann. Code art. 27, secs. 645JA-645JG (1976), rule 762 (1977).Google Scholar

9 Edwin Powers, The Basic Structure of the Administration of Criminal Justice in Massachusetts 120 (6th ed. Boston: Massachusetts Correctional Association, 1973).Google Scholar

10 The governor's address to the Executive Council, Jan. 11, 1859, in 1858-59 Mass. Acts at 584.Google Scholar

11 Eighteenth Report, Judicial Council of Massachusetts, 28-30, Public Document No. 144, 1942.Google Scholar

12 ALI Code of Criminal Procedure sec. 459 (June 15, 1930, Draft).Google Scholar

13 1943 Mass. Acts ch. 558, sec. 1.Google Scholar

14 1945 Mass. Acts ch. 255, secs. 1-3. See note 31 infra.Google Scholar

15 Id. ch. 437.Google Scholar

16 1955 Mass. Acts ch. 770, sec. 91, 1957 Mass. Acts ch. 777, sec. 36, changed the term used to refer to the “warden” to principal officer and then to “superintendent,” 1968 Mass. Acts ch. 666, secs. 1-4, eliminated the former (never used) “leave to appeal” provisions and gave the appellate division the power to impose a modification instead of removing it for modification to the superior court.Google Scholar

17 Mass. Ann. Laws ch. 278, sec. 28A (Michie/Law. Co-op. Cum. Supp. 1977).Google Scholar

18 Connecticut Prison Study Committee, First Interim Report 1 (unpublished; Nov. 19, 1956) (hereinafter referred to as First Report).Google Scholar

19 State v. Horton, 132 Conn. Supp. 276, 43 A.2d 744 (1945); State v. La Porta, 140 Conn. Supp. 610, 102 A.2d 885 (1954).Google Scholar

20 First Report, supra note 18, at 3. The committee did a pilot investigation of 200 files at Wethersfield Prison. Concentrating on sentences of those convicted of robbery with violence, the committee found:Google Scholar

Among prisoners with a record of more than 1 major offense, sentences range from a low of 8 to 12 years to a high of 15 to 22 years. Among prisoners with a record of only minor offenses, sentences range from a low of 1 to 3 years to highs of 10 to 12 and 8 to 15 years. Among prisoners with no record of prior convictions, sentences range from a low of 1 to 3 to a high of 8 to 12 years.Google Scholar

Id.Google Scholar

21 Id. at 1.Google Scholar

22 Id.Google Scholar

23 The committee thought allowing the state to apply for review of sentences would violate the double jeopardy clause of the Constitution. Id., Appendix.Google Scholar

24 The appendix to the committee's First Report argued that to give the division power to increase sentences would not violate the double jeopardy clause.Google Scholar

25 First Report, supra note 18, at 10-11.Google Scholar

26 Mass. Ann. Laws ch. 278, sec. 28A (Michie/Law. Co-op Cum. Supp. 1977).Google Scholar

27 Mass. Const. sec. 244, art. 98 amendments (1972).Google Scholar

28 1957 Conn. Pub. Acts, Jan. Sess., P.A. 436. The first statute did not provide the division with power to increase sentences. The act was amended in September 1957 to provide that the division could increase sentences. Conn. Pub. Acts, Sept. Spec. Sess., P.A. 14.Google Scholar

29 Minutes of proceedings before the Joint Committee on the Judiciary and Governmental Functions, Feb. 28, 1957, at 404. See also comments by Representative Koskoff at the same hearing, at 374, and comments in House Proceedings, May 17, 1957, at 2379.Google Scholar

30 All sentences to state prison must be at least 2% years with two exceptions. The first occurs when a prisoner is already serving a state prison sentence at the time of the act in which case a 1-year minimum is permissible (Mass. Laws Ann. ch. 279, sec. 26 (Michie/Law. Co-op 1968)). The second is on a second or subsequent conviction of violation of general drug laws leading to harmful drugs when a 2-year minimum is allowed (Mass. Laws Ann. ch. 94C, sec. 32 (Law. Co-op 1975)). Only 2 of 443 prison sentences in 1971 had minimums below 2 years.Google Scholar

31 See Mass. Ann. Laws ch. 278, sec. 28A (Michie/Law. Co-op Cum. Supp. 1977). The discrimination against women is avoided by the practice of sentencing women to “prison” and specifying that their sentence is to be served at the reformatory.Google Scholar

32 1966 and 1967 are omitted because of missing data. Computed from annual reports to the justice of the supreme judicial court by the executive secretary supplemented by Daniel Bort, Criminal Sentence Appeal in Massachusetts (Unpublished paper, Harvard Law School, 1974).Google Scholar

33 This is his right (Petition of Croteau, 353 Mass. 736, 234 N.E.2d 737 (1968)), although on rare occasions it may be waived.Google Scholar

34 In the hearings I viewed (S.D.) this warning resulted in several withdrawals. These cannot be distinguished in the division or county records from withdrawals for other reasons.Google Scholar

35 See Conn. Gen. Stat. Ann. sec. 51-195 (West Cum. Supp. 1977).Google Scholar

36 See id. sec. 51-196.Google Scholar

37 See id. sec. 51-195.Google Scholar

38 The defendant can delay the review hearing if he wishes. In the sample of sentence review applicants of 1972, 114 had hearings four to six months after the application was filed; 27 waited seven months or more.Google Scholar

39 The duties of the executive secretary include: (1) making sure the file for each applicant is complete; (2) assigning cases for hearings; (3) assuring representation by counsel of the applicant; (4) notifying defendants, attorneys, judges, and corrections officers when hearings will be held; (5) notifying when applications are untimely; (6) attending sentence review hearings; and (7) distributing the opinions.Google Scholar

40 See Conn. Gen. Stat. Ann. sec. 51-195 (West Cum. Supp. 1977). This is in part because sentencing hearing transcripts are available to review division.Google Scholar

41 Other parties to whom opinions are regularly sent are: the chief justice of the Connecticut Supreme Court, the state's attorney in Hartford, the warden of the institution at which the prisoner is confined, the supreme court reporter, the state library, and, if it is to be published, to the Hartford Times and Hartford Courant.Google Scholar

42 The only prior study of appellate review of sentences in Connecticut was published 18 years ago. See Note, Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study, 69 Yale L.J. 1453, 1464 (1960).CrossRefGoogle Scholar

43 The following table presents a synopsis of the Massachusetts cases in this study:Google Scholar

(a) The Massachusetts sample was obtained from the probation office records of Suffolk and Middlesex counties for the 14 months between Nov. 1, 1972, and Dec. 31, 1973 (see table A).Google Scholar

(b) Middlesex County only: Since the probation files in Middlesex recorded suspended sentences for only 3 of the 14 months (recording stopped after Jan. 1973), additional suspended sentence cases were obtained from Oct. 1972. The 13 suspended sentences were then weighted by 14/4 to account for the omissions in the sample between Feb. 1973 and Dec. 31, 1973. (14/4 × 13) + 101 = 147 units.Google Scholar

(c) Since the majority of those eligible for appeal do not take their cases to the review board, an additional sample of applicants was drawn so that this group could be examined in greater detail. The additional cases were those scheduled to be heard by the division during Oct. 1973, Apr. 1974, and Sept. 1974. This added 79 cases for Suffolk County and 14 cases for Middlesex County. Since these cases were all applicants, the 210 nonapplicant cases of Suffolk County were weighted by (79 + 89)/89, and the 115 nonapplicant cases in Middlesex County by (14 + 32)/32. The final sample, on which all calculations are based, therefore consists of 564 Suffolk County units and 211 Middlesex County units, for a total of 775 units.Google Scholar

44 (a) The 75 nonapplicants from each of the three superior court counties were weighted by the actual number of 1972 nonapplicants from that county. Thus, there were 137 nonapplicants from Fairfield County in 1972 and the 75 sampled nonapplicants were weighted by 137/75; similarly the 75 sampled nonapplicants from Hartford County were weighted by 220/75 and the 75 sampled nonapplicants from New Haven County by 114/75. These weighting procedures resulted in 137 + 220 + 114 = 471 nonapplicant units.Google Scholar

(b) There were 218 applicants in 1972 from all superior courts. There were 471 nonapplicants from the three sampled counties and 229 from other superior courts. The 471 units from the sampled counties were therefore weighted by 700/471 to estimate the 1972 nonapplicant cases in all superior courts.Google Scholar

(c) When the 700 nonapplicant units are added to the 218 applicants, the sample contains 918 units representing all superior court cases eligible for sentence review in 1972.Google Scholar

45 In none of the eliminated cases was the sentence reduced: 58 were not appealed; in 3 cases an appeal was made and withdrawn; the six maintained appeals were all unsuccessful.Google Scholar

46 Fourteenth through Eighteenth Annual Reports to the Justices of the Supreme Judicial Court by the Executive Secretary (Public Document No. 166) June 30, 1970, 1971, 1972, 1973, and 1974.Google Scholar

47 From tables 2 and 4.Google Scholar

48 The exception, in the 25-36-month group, was the one sentence appealed out of the 186 cases, and it resulted in a sentence reduction. The offender was a woman with four children who had been pregnant at the time of the offense. See case 528 in section XI.Google Scholar

49 Published opinion: State v. Cato, 29 Conn. Supp. 443, 290 A.2d 901 (1972).Google Scholar

50 Unpublished opinion. This quotation and many of those that follow are from opinions not published by the review division; they were taken from division files. Because the opinions are not a matter of public record and contain information on criminal history, they are not cited by name. Whenever a quotation is presented without a citation, it comes from an unpublished opinion.Google Scholar

51 Figures obtained from official statistics of Connecticut and Massachusetts. A low ratio of trials is a tradition of long standing in the state of Connecticut. A 1955 count revealed 3 jury trials per year per 100,000 population for Connecticut as against 51 in Massachusetts (cf. Harry Kalven, Jr., & Hans Zeisel, The American Jury 502 (Chicago: University of Chicago Press, 1971).Google Scholar

52 Cf. Quinn McNemar, Psychological Statistics (4th ed. New York: John Wiley & Sons, 1969). For modification rates, x²= 30.81, p <.10; for appeal rates, x²= 89.10, p <.001.Google Scholar

53 These cases include all sentence modifications in Connecticut for 1962, 1967, and 1972.Google Scholar

54 State v. Cole, 27 Conn. Supp. 398, 240 A.2d 98 (1968).Google Scholar

55 State v. Chvirko, 23 Conn. Supp. 355, 183 A.2d 629 (1962).Google Scholar

56 State v. Lytwyn, 27 Conn. Supp. 78, 230 A.2d 40 (1967).CrossRefGoogle Scholar

57 State v. Wallick, 27 Conn. Supp. 387, 239 Aid 544 (1968).Google Scholar

58 State v. Malolepszy, 24 Conn. Supp. 304, 190 A.2d 231 (1963).CrossRefGoogle Scholar

59 State v. Daley, 27 Conn. Supp. 232, 234 A.2d 451 (1967).Google Scholar

60 None of the Massachusetts cases in sections XI and XII are cited by name. The descriptions of the cases include information on criminal history, and the Massachusetts Criminal History Systems Board does not permit such information to be made public.Google Scholar

61 We are indebted to John Fiske, the executive secretary of the Massachusetts Superior Court and to John O'Connor of the Suffolk County Probation Department for their help, and to Kathy O'Connell who located these seven cases in the Suffolk County file.Google Scholar

62 State v. Davis, 21 Conn. Supp. 480, 158 A.2d 601 (1959).Google Scholar

63 Unpublished opinion (1958); State v. Langley, 22 Conn. Supp. 492, 174 A.2d 689 (1961); State v. Levac, 25 Conn. Supp. 68, 196 A.2d 603 (1963); State v. Rodgers, 23 Conn. Supp. 83, 176 A.2d 600 (1961); State v. Kohlfuss, 22 Conn. Supp. 278, 169 A.2d 659 (1961).Google Scholar

64 Kohlfuss v. Warden, 149 Conn. Supp. 692, 183 A.2d 626 (1962).Google Scholar

65 U.S. ex rel. Kohlfuss v. Reincke, 254 F. Supp. 440 (D. Conn. 1965).Google Scholar

66 State v. Heyward, unpublished opinion (1958).Google Scholar

67 State v. Heyward, 152 Conn. Supp. 426, 207 A.2d 730 (1965).CrossRefGoogle Scholar

68 Gavin v. Commonwealth, 327 N.E.2d 707 (1975), aff'd sub nom. Gavin v. Chernoff, 546 F.2d 457 (1st Cir. 1976). Information on these cases was obtained from Justice Kaplan, who wrote the opinion for the Supreme Judicial Court of Massachusetts denying the offenders' right to redress of their sentence increases.Google Scholar

69 395 U.S. 711 (1969).Google Scholar

70 Gavin v. Commonwealth, 327 N.E.2d 707, 710 (1975), aff'd sub nom. Gavin v. Chernoff, 546 F.2d 457 (1st Cir. 1976).Google Scholar

71 See id. at 712-13.Google Scholar

72 See text at table 18.Google Scholar

73 Unpublished decision (1974).Google Scholar

74 Gavin v. Commonwealth, 327 N.E.2d 707, 713 (1975), aff'd sub nom. Gavin v. Chernoff, 546 F.2d 457 (1st Cir. 1976).Google Scholar

75 Gregg v. Georgia, 428 U.S. 153, 206.Google Scholar

76 The Austrian Minister of Justice, Dr. Christian Broda, has commissioned a study of the Austrian sentence appellate system which gives broad appellate rights to both the defendant and the prosecutor. It will be instructive to see the results of that study.Google Scholar

77 David A. Thomas, Principles of Sentencing: The Sentencing Policy of the Court of Appeal Criminal Division (London: Heinemann Educational Books, Ltd., 1970).Google Scholar

78 Here ends our review of the sentencing review procedures in Massachusetts and Connecticut. Our findings are not complete. We have as yet no measure of the sentence disparity in these courts. We would like to know how disparity changes over time, especially whether service on the review board tends to reduce disparity when these judges impose sentence in the trial courts. We would also like to know more about the board's own view of its role and how it goes about making its decisions.Google Scholar

79 See note 4 supra.Google Scholar

80 Leslie T. Wilkins et al., Sentencing Guidelines: Structuring Judicial Discretion (mimeo-graphed 1976); Leslie T. Wilkins, Perspectives on Court Decision-making, in Don M. Gottfredson, ed., for National Institute of Mental Health, Center for Studies of Crime and Delinquency, Decision-making in the Criminal Justice System: Reviews and Essays 59 (Washington: Government Printing Office, 1975).Google Scholar

81 S. 1437, 94th Gong., 2d Sess. (1976).Google Scholar

82 We are bypassing the important issue as to whether a record of arrests only should be at all distinguished from no record.Google Scholar

83 From the record of such entries we could learn more precisely what case characteristics judges use in their sentencing decicions.Google Scholar

84 From time to time the judges might care to see even more specifically how their own sentencing pattern compares with those of their colleagues.Google Scholar