Judicial Resistance to Sentencing Accountability

Abstract

A social-psychological interpretation of judicial resistance to sentencing accountability is presented against a background of or ganizational theory and institutional change. The provision of documented reasons in sentencing is related to a predictable in crease in appellate review and reversal, heightened criticism by the press and the public, and consequent diminution of the judiciary's role. The reaction by judges to reform of their sentencing function is viewed as entirely rational: they desire to preserve their advan tageous position in the criminal justice system. Efforts to avoid infringement upon their most valued discretionary domain are de termined by the innovation's incentives and impediments per ceived and felt by the judges. The court's response to sentencing accountability is compared with the police response to the now- defunct civilian review boards. The relinquishment of discretion, especially that exercised by high echelon administrators, does not yield easily to the transparent rhetoric of the criminal justice re formers and intellectuals attempting to convince the functionaries involved that guided, controlled, benevolently monitored "innova tion" applied to operational power and authority will be painless, worth the sacrifice, or fully justified by the contribution to "im provement of the system." Those who have the most have the most to lose from the prospect and implementation of social change. Ac cordingly, the targets of the change agents are highly inventive and effective in guarding their possessions and in maintaining their social status and the bureaucratic status quo. Nonetheless, the case for sentencing accountability is compelling, and, as a result of pro cesses and forces largely external to the court itself, we may be wit nessing the beginning of the criminal law revolution coming home to roost.