The sentencing of those convicted is probably the most important element of the criminal justice process. The criminal justice system serves a variety of purposes, including deterrence, rehabilitation, isolation, and perhaps retribution. It is at the point of sentencing that these aims must be balanced against one another in reaching a decision as to what should be done with a particular individual.

It is often said that the imposition of sentences is one of the more important means through which society attempts to achieve its social goals. The difficulty arises from the fact that there is little agreement as to what those social goals are or should be. Some argue that the rehabilitation of convicted offenders is the best method of preventing crime. There are others who believe that it is the deterrent effect of criminal penalties that offers the greatest protection. Still others maintain that the detention of dangerous or anti-social offenders is the only guarantee that they will not commit further crime. Finally, there are those who feel that criminal penalties are justified through a moral right and duty given to the courts to inflict punishment as an expression of society's disapproval of crime. It is left to the judge (and less often, the jury) to balance these goals with each approach having its advocates. There is little evidence that anyone of the principles is more correct than another in halting the rise of crime.

Legal standards in sentencing are far less developed than those in many other areas of the criminal process. At various other stages of the process the legal rights of the parties are defined fairly clearly and enforced by many guarantees. But perhaps because of the complexity of the sentencing process, fewer rules have been developed to insure regular procedures, rationality of decisions, and fairness in sentencing.

Great discretionary power is given to the courts without guidance as to how that power is to be exercised. High maximum penalties are provided by the legislatures, but it is left to the courts to decide what penalties should be imposed and for what purpose. With the lack of legislative guidelines and the controversy over the purposes of sentencing, it is not surprising that there is disparity among sentences.

Attempting to predict the impact of a sentence on an offender, or on potential offenders, is a most difficult task. It is hard to decide whether an offender before the court is likely to pose the risk of further crime and even more difficult to know whether that risk can be altered by choosing one form of sentence over another. Still more difficult is estimating whether the imposition of a deterrent penalty is likely to stop potential offenders from committing crime. There is also the problem of deciding to what extent it is morally right to punish individuals for crimes they have not committed.

The major problems in sentencing seem to come from disagreement as to the social purposes that sentencing should serve, the lack of evidence as to the effectiveness of penal measures to achieve these ends, and the lack of legal guidelines and standards for courts. (*1)

Such deficiencies lead to disparity in sentencing. Disparity exists when there is variance in sentences for the same statutory offense and that variance is unrelated to the consideration of aggravating and mitigating circumstances. A lack of uniformity is, in some cases, justifiable. Judges are given discretion in sentencing in order that they may sentence according to individual needs. Disparity may result from statutory definitions of crimes including a broad range of conduct having varying degrees of seriousness. Also, a lack of uniformity may reflect differences in the priorities of various communities.

Unjustified disparity may detract from the objectives of the criminal justice system by promoting disrespect for law and by lowering public confidence in the ability of the courts to deal justly with those who come before them. Such disparity affects correctional administration. Prisoners compare their sentences and if they become convinced that they have been dealt with unfairly, they may become hostile and resist treatment and discipline.
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(*1) 1. Hogarth, John, "Sentencing as a Human Process," University of Toronto Press, 1971.