review the government PSI. but commission the preparation of a defense PSI to document any mitigating factors. While this may not pose a problem to the well-healed offender. it smacks of potential discrimination against the indigent offender who cannot afford such a luxury. The question then becomes one of whether the government would be obliged to provide the indigent defendant with the means to obtain a defense
PSI. Many have recognized the useless waste of taxpayer dollars being spent to keep non-dangerous offenders behind bars. but the proposed guidelines do not address the issue of alternatives to incarceration. I have been making such proposals to the federal courts in appropriate cases since 1979. While not all of the alternative sentences I have proposed have been accepted. I can state without reservation that the alternative sentences that have been imposed in my cases have been absolutely effective. Alternative sentences are good for the criminal justice system and we must give the court some broad discretion to use them in appropriate cases. As the guidelines now stand. a first-time offender of a non-violent offense rated above 14 sanction units would go to jail. and time sentenced is time served under the new guidelines. There is no parole. This becomes even more distressing when one realizes that the guidelines also lack any provisions for lessening the severity of a sentence based on the youthfulness of the offender. Finally. I am deeply concerned with the guideline provisions which use cooperation as a mitigating factor in sentencing. This considers only those people who literally admit to a crime despite their right to a fair trial. That is. plead guilty. cooperate and in tum a few points will be shaved from your offense Sanction Unit score. As it stands. the cooperation provisions threaten the basic foundation of the constitutional right to trial by jury. While unconstitutional. the possibility that an accused will be punished for exercising his right to trial by jury always exists. However. under the sentencing guidelines as proposed by the Commission. the possibility. in my D opinion. becomes reality.
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October 1987/Arkansas Lawyer/127