lent to less than one-third of the term imposed, or at any time at the discretion of the parole board. In many sentencing situations these provisions have proved unsatisfactory. If the sentencing judge believes that an offender should serve five years in prison, then, to achieve that result, he must sentence him to fifteen years; thus the actual sentence imposed is misleading in that it does not on its face reflect the trial court's real determination as to what a particular offender deserves. 3. Provisions of S. 1, as Reported

Under the terms of section 2301 (a), all individual offenders, regardless of the type of offense committed, may be sentenced to a term of imprisonment. This differs slightly from the approach taken by the National Commission in that its sentencing provisions did not provide for imprisoning persons committing the lowest class of offenses. The Committee is of the belief that a very short term (five days) of imprisonment is appropriate for some offenders who are found to have committed infractions since, inter alia, the shock value of a brief period in prison may have significant rehabilitative and special deterrent effects. In addition, as a practical matter imprisonment may be the only available punishment for indigents.5

Subsection (b) sets forth nine classes of offenses. There are five felony classes with authorized terms of imprisonment ranging from life imprisonment to three years; three misdemeanor classes with maximum terms ranging from one year to thirty days; and the aforementioned infraction category carrying a maximum of five days. This categorization of offenses accords fairly closely with the range and number of categories adopted in several recent state codifications, and, except for the addition of a three-year felony and a six-month misdemeanor, accords closely with the recommendation of the National Commission." The maximum authorized terms set forth in subsection (b), as applied to individual offenses, comport rather closely to those authorized under current law. Nevertheless, it has been suggested that such sentences are too lengthy. It must be remembered, however, that the terms set forth are the maximum periods for which a judge is authorized to sentence an offender in each such category-it represents the Committee's judgment as to the greatest period the Congress should allow a judge to impose for an offense committed under the most egregious of circumstances. It is expected, for example, that the ordinary sentence imposed for a Class C felony will be considerably less than the fifteen years authorized. This subsection is designed simply to provide a maximum limit on the broad range within which a judge is

4 Final Report § 3201.

5 Tate v. Short, 401 U.S. 395 (1971). See the recommendation by the Committee on Reform of the Federal Criminal Laws of the American Bar Association, Hearings; pp. 5815, 5817.

6 The National Commission in its Final Report proposed a supergrade category of felony permitting life imprisonment (§ 3601); three classes of other felonies, entailing imprisonment for thirty, fifteen and seven years (§§ 3002 (1); 3201(1)); two categories of misdemeanors, carrying one-year imprisonment and thirty days' imprisonment (§§ 3002 (2); 3201 (1)); and one infraction category (§ 3002 (3)). Under the Commission's proposed formulation, with the lowest felony carrying a maximum of seven years, many offenses presently carrying a two to five years' maximum would either have to be upgraded to a seven-year felony or reduced to a one-year misdemeanor. To avoid a seven-fold jump in potential penalty between one offense category and the next higher category, the Committee felt it appropriate to include a three-year felony as recommended by the cognizant committee of the American Bar Association (Hearings, p. 5816). Similar considerations dictated the inclusion of a six-month misdemeanor.

7 They also comport fairly closely to those authorized under the recent recodification in the State of New York. See McKinney's Rev. Penal Law. §§ 70.00, 70.15.

* See Hearings, p. — (statement on behalf of the National Legal Aid and Defenders' Association).

permitted to exercise his informed discretion. The subsection is no more intended to indicate the actual sentence a judge is expected to impose in each case than are the analogous provisions of current federal statutes that also customarily set forth only the maximum limit on the judge's discretion.

Moreover, the Committee believes that when the maximum authorized sentences are compared with their actual applicability to the substantive offenses in the Code the limited availability of the longer term sentences will become apparent. For instance, Class B felonies carry the high maximum penalty of thirty years. But the Class B penalties are available for only eight offenses, all of a patently serious nature. Even if an offender committed one of these offenses under such serious circumstances that he was sentenced by the court to the maximum authorized term of imprisonment and was subjected to a term of parole ineligibility, he would still be eligible for parole in a maximum of seven and one-half years. In addition, in any such case in which sentence imposed was more than six years, the defendant would have a right to appellate judicial review of the sentence.10

Subsection (c) establishes the limits of extended term sentences. This provision, which is similar in substance to the current provisions dealing with special offenders, contains a built-in proportionality factor that the present provisions do not. The subsection authorizes extended terms of up to twice the term otherwise authorized for the offense, but in no event more than twenty-five years.11 Thus, extended term sentencing would be redundant with regard to Class A and B felonies, and would be of limited utility with regard to Class C felonies. Criteria for imposition of extended term sentences are found in section 2302, special procedural requirements are included in Rule 32.1 of the Federal Rules of Criminal Procedure, and special appellate review factors are set forth in section 3725,

Subsection (d) deals with terms of parole ineligibility for felonies. The subsection provides that the maximum period of parole ineligibility that the court may impose is one-fourth the term of imprisonment otherwise authorized, or ten years, whichever is less. The approach differs significantly from current law.

The principal change from current law lies in the fact that the term of parole ineligibility is changed from a fraction of the term of imprisonment imposed by the judge to a fraction of the term of imprisonment authorized for the offense. The change is dictated by the Committee's perception of the appropriate purposes to be served by a term of parole ineligibility and by the fact that those purposes often mandate a more lengthy confinement than would otherwise be assured. Those purposes, which are set forth in section 2302 (c) as criteria to be evaluated in imposing a term of parole ineligibility, might appropriately be discussed at this point since their recognition is necessary to an understanding of the change incorporated in subsection (d).

Sections 1101 (Treason): 1111 (Sabotage); 1121 (Espionage); 1631 (Aircraft Hijacking); 1801 (Operating a Racketeering Syndicate); 1802 (Racketeering); 1811 (Trafficking in an Opiate); and 1812 (Tracfficking in Drugs, where the offender is a recidivist). 10 See section 3725.

11 In a case involving the commission of a Class D felony, for example, a defendant, who is not found by the court to be a dangerous special offender can be sentenced to imprisonment for any period from zero to seven years, while a defendant who is found to be a dangerous special offender can be sentenced to imprisonment for eight, nine, ten, or any greater number of years-up to a maximum of fourteen-that the court finds to be warranted.

The Committee is of the view that only the punitive and deterrent purposes of sentencing are appropriate bases for a sentence of parole ineligibility. The incapacitative and rehabilitative purposes of sentencing may be served by the court's imposition of an adequate sentence within the range authorized by subsection (b), by the Parole Commission's continual evaluation of the defendant's readiness for parole pursuant to the provisions of subchapter D of Chapter 38, and by the Parole Commission's eventual release of the defendant upon a finding that continued incapacitation or institutional rehabilatory training are no longer required. It is with regard to these two purposes of sentencing that the indeterminate sentence has an acknowledged potential benefit and a logical theoretical function. It is with regard to these two purposes of sentencing that the medical analogy is appropriate. But the imposition of the particular maximum indeterminate term that it is appropriate to impose in any particular case bears no necessary relationship to whatever sentence may be necessary for purposes of just punishment or deterrence. The sentence necessary to assure just punishment and adequate deterrence may be less than, equal to, or greater than required for purposes of incapacitation or rehabilitation in a particular case. Yet it is only for such punative or deterrent purposes that a term of parole ineligibility is of any real value.

Under the system proposed by the Code, as under the current system, the reason for permitting the Parole Commission to determine when a defendant is ready for release is precisely because the Parole Commission at that later time is in a far better position to make an intelligent determination of that readiness than is the judge at the time of sentencing. Consequently, when a sentence is imposed solely for purposes of incapacitation or rehabilitation no arbitrary time limitation should restrict the Parole Commission's authority to release a prisoner once he is no longer a danger to society and no longer in need of further rehabilitative efforts, and there is no reason to construct an arbitrary relationship between a set term that may be imposed for purposes of just punishment or deterrence and an indeterminate term that may be imposed for purposes of incapacitation or rehabilitation. It is for this reason, therefore, that the set term of parole ineligibility that a court is authorized to impose has been designated by the Committee as a fraction of the maximum term authorized rather than the maximum term imposed.

It will be observed that this approach is also more forthright. Under the Code, if a court determines that an embezzler of public funds who is convicted of theft at a Class D level may warrant three years incarceration for purely deterrent purposes, it could sentence the embezzler to three years imprisonment with a three year term of parole ineligibility. Under the provisions of current law, to insure that the embezzler would remain incarcerated for the three-vear period felt necessary by the court, the court would have to go through the disingenuous procedure of imposing an artificially long, nine-year term of imprisonment.12 The system set forth in the Code is therefore believed by the Committee not only to be more logical but to be more honest.13

12 See 18 U.S.C. 4202.

13 The system proposed by the Code also eliminates the possibility under the present system whereby the embezzler sentenced to nine years in order to insure incarceration for three may in fact he kept in imprisonment by the parole authorities for a period substantially longer than the judge originally felt to be warranted.

It should be noted that the terms of parole ineligibility are not available for misdemeanors or infractions.

SECTION 2302. IMPOSITION OF SENTENCE OF IMPRISONMENT

1. In General

This section establishes the criteria for courts to use in imposing a term of imprisonment, imposing an extended term of imprisonment, and imposing a term of parole ineligibility.

2. Present Federal Law

14

At present there are no federal provisions stating criteria for imposing a term of imprisonment or a term of parole ineligibility. There are, however, detailed criteria governing the imposition of extended

terms.

The criteria for extended term sentencing are found in the two special offender sections to which reference has previously been made. The two sets of criteria are virtually identical. Both state three situations in which a convicted felon may be classified as a special offender. The chief distinction is that the provisions of 18 U.S.C. 3575 apply to any felon while those of 21 U.S.C. 849 apply only to drug offenders. The classifications of special offenders include (1) an offender who has been convicted previously for two or more separate felonies and actually imprisoned for one or more of these felonies, if one of the felonies took place within the past five years or if the offender has been released from prison for one of those felonies within the past five years; (2) an offender who committed the charged felony as part of a pattern of criminal conduct which generated a substantial source of his income and in which he manifested special skill or expertise; or (3) an offender who committed the charged felony as a part of, or in furtherance of, a conspiracy involving three or more persons in which the offender played, or had agreed to play, a leadership role, or in which he used bribery or force. The defendant's susceptability to such special offender classification must be established by a preponderance of the evidence. In addition to the defendant's being found a special offender under the above criteria, it must also be found that he is dangerous, which is defined to mean those whose prolonged confinement is required for the protection of the public.

3. Provisions of S. 1, as Reported

For the first time in the Federal criminal law, section 2302 (a) would require a court to consider specified criteria prior to the imposition of a sentence of imprisonment.15 In addition to considering the nature and circumstances of the offense and the history and characteristics of the defendant, the court must also consider the need for the sentence imposed to provide just punishment, a deterrent effect, incapacitation, and an opportunity for rehabilitation. While these factors are today

14 Indeed, a set term of parole ineligibility is automatically imposed upon the imposition of a sentence to imprisonment (see 18 U.S.C. 4202) unless the sentencing court affirmatively acts to impose a lesser term of parole ineligibility or to avoid imposition of any such term (18 U.S.C. 4208 (a)).

15 The criteria are required to be considered not only in determining whether a term of imprisonment should be imposed, but also in determining the appropriate length of any such term. The criteria should similarly be considered by the court in assessing whether to recommend to the Bureau of Prisons that the defendant be assigned to serve the sentence in a particular kind of prison facility. See section 3821 (b). See also proposed section 572 of title 28, appearing in section 725 of S. 1, as reported.

taken into consideration by judges in the course of assessing the desirability and the appropriate length of a sentence to imprisonment, the listing of criteria serves to focus attention on the specific purposes of the sentencing process and to assure that adequate emphasis is given each. Again, it should be noted that there will be cases in which incarceration would be appropriate to serve only one or two of the four listed needs of sentencing; nevertheless, if imprisonment is found to be justified for any one of the four purposes its imposition is authorized under this section.

Imposition of an extended term is permitted under subsection (b) only after a hearing in accordance with Rule 32.1 of the Federal Rules of Criminal Procedure and after a finding (1) that the offender is a dangerous special offender, and (2) that, considering the offender and the offense, an extended period of incapacitation is warranted for the protection of the public.16

As in current law, there are three separate categories of persons falling within the definition of a dangerous special offender.

The first category covers recidivists. It includes those who have two or more prior felony convictions, one of which resulted in imprisonment 17 and one of which either occurred within ten years of the current offense or resulted in his being in a state of imprisonment, probation, or parole within ten years of the date of the current offense.18 Previous felonies which are given penal recognition through an increase in grading for the current offense are not included. The result is a scheme similar to that in current law with the basic change being the substitution of a ten-year limit for the current five-year limit on the application of a previous felony, imprisonment, or release from imprisonment-a change the Committee believes to be warranted since the indication of the offender's status as a recidivist is the fact of the most recent offense rather than its temporal proximity to the last previous offense, and since such proximity will be taken into consideration by the court in evaluating the need to imprison the defendant for the protection of the public.

The second category covers professional criminals. The criteria require that the current felony be a part of a pattern of criminal conduct and either that the offender have derived a substantial portion of his income from such pattern of activities or have shown special skill or ability in such conduct. The demonstrated skill might be. for example, that of a safe cracker, that of a forger, that of a "fence" for stolen goods, that of a thief manipulating computerized financial records, or that of a loanshark's collector. No prior conviction need be established.

The third category covers organized crime conspirators. It requires that the offense involve a conspiracy with three or more other persons to engage in a pattern of criminal conduct; that the current felony not be one of certain designated racketeering offenses that themselves punish patterns of organized criminal activity; 19 and either that the

16 By their omission from this subsection, the sentencing goals of just punishment, deterrence and rehabilitation will not support the imposition of an extended term.

17 This aspect of the criterion is designed to limit the reach of the category to those who had an opportunity to learn through prior exposure to the penal process.

18 This factor is intended to eliminate from consideration those whose past connection with crime or the criminal process is too remote to warrant their cnsideration as habitual criminals.

19 Sections 1801-1803.