1. The situation is somewhat different on the European continent, where the penal code itself enumerates the mitigating and aggravating circumstances the judge must consider. See, however, note 11 infra.

2. In ten states, all in the South, the sentences in all criminal cases are determined by the jury within the range set by the penal code; in another three states the jury determines the sentence only for certain specified offenses. See H. Kalven, H. Zeisel, The American Jury, ch. 20 (1966).

3. See L. Hall, Reduction of Criminal Sentences on Appeal, 37 Colum. L. Rev. 521, 762 (1937); and Penalty Penology of Appeal: Appellate Review of Legal But Excessive Sentences, Note 15 Vand. L. Rev. 67 (1962). Again, the situation on the European continent differs. There the sentence may be, and often is, appealed by either prosecutor or defendant, even when the finding of guilty is accepted.

4. Cellmates in prison, who view their respective crimes as being of comparable gravity, often find their sentences differ so widely as to raise serious questions of justice. To avoid such anomalies, the courts have recently begun to develop informal, internal guidelines for judges of the same jurisdiction, that implement the discretion within the sentencing range set by the law.

5. Examples of such studies are: G. W. Baab & W. R. Furgeson, Jr., Texas Sentencing Practice: A Statistical Study, 45 Tex. L. Rev. 47 (1967); and E. Green, Judicial Attitudes in Sentencing (1961).

6. See H. Zeisel, Say It With Figures chs. 10 & 11 (5th rev. ed. 1968).

7. U. S. Department of Justice, The Attorney General's Survey of Release Procedures ch. 11 (1939).

8. Executive Clemency in Capital Cases, 39 N.Y.U.L. Rev. 136 (1964); Royal Commission on Capital Punishment, Minutes of Evidence 1 (1949). See also Kalven & Zeisel, supra note 2, at ch. 36.

9. The practice has been severely criticized by Professor Rupert Cross in his inaugural lecture at the University of Oxford, Paradoxes in Prison Sentences, 81 L.Q. Rev. 205 (1965). Here again, the European practice is different: the penal code lists the circumstances that can alleviate or aggravate the sentence, and the court must say which ones pertained in the particular case. The Vera Institute of Justice, through what it calls the Bronx Sentencing Project, has made an interesting effort in this direction. It has analyzed actual sentences, given by fifty-seven judges of New York City's criminal court, and related them to the gravity of the offense and other factors that emerged from the presentencing report in each case. It thereby developed an empirical point system that served as a basis for sentence recommendation—and prediction.

10. See p. 623 above.

11. Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study, 69 Yale L.J. 1453-78 (1960).

12. For instance: Maximum Sentences by State, National Prisoner Statistics, Prisoners Released from State and Federal Institutions in 1960, Table 55 (1963).

13. A fine example of this approach is R. Hood, Sentencing in Magistrate's Courts, A Study in Variations of Policy (London, 1962).

14. See H. Zeisel, supra note 6, at ch. 7.

15. Everson, The Human Element in Justice, 10 J. Crim. L. & C. 90 (1919). Later studies by F. J. Gaudet, Individual Differences in the Sentencing Tendencies of Judges, 32 Archives of Psychology (1938) confirmed this idiosyncratic bias of judges. E. Green, Judicial Attitudes in Sentencing (1961), based on data from the Criminal Court in Philadelphia, is the only study that claims to have found no such differences, but its statistical analysis is open to criticism.

16. Forcible rape is still a capital crime in eleven Southern states, and the study covered those states. The results of the study have been presented for cases in Alabama, Arkansas, Florida, Georgia, Louisiana and South Carolina, and this paper focuses on the Arkansas part of the study. That facet is discussed and evaluated by the District Court at 257 F. Supp. 710 (E.D. Ark. 1966) and by the Court of Appeals at 398 F.2d 138 — U.S. —, cert. set down for reargument, October, 1969 Term (No. 622) (8th Cir. July 11, 1968) in the case of Maxwell v. Bishop. On December 16, 1968, the Supreme Court granted certiorari in that case, but limited the questions it would consider so as to exclude considerations of the issues directly related to the study (37 U.S.L.W. 3214). The study is more briefly described in Matter of Sims and Abrams, 389 F.2d 148 (5th Cir. 1967), involving the Georgia facet, and in Moorer v. South Carolina, 368 F.2d 458 (4th Cir. 1966), involving the South Carolina facet.

17. See H. Zeisel, The Law, in The Uses of Sociology (P. Lazarsfeld ed. 1968).

18. A. Rankin, The Effect of Pretrial Detention, N.Y.U.L. Rev. 941-55 (1965). Curiously enough, the analyst failed to perceive that an experiment designed to test the effect of variable a on variable b, is also an experiment testing the effect of a on any other factor.

19. I should like to add a digression here. Miss Rankin's study shows that being in jail at the time of trial not only increases the sentence in case of conviction, but also increases the chances of being convicted. I have seldom seen a more disconcerting result of an empirical legal study; yet it caused not so much as a ripple in the law world. This is a melancholy comment on the powers of social research to change the real world.

20. See, for instance, L. Goodman, The Analysis of Cross-Classified Data: Independence, Quasi-Independence, and Interactions in Contingency Tables With or Without Missing Entries. J. Am. Statist. Ass'n, Dec. 1968.

21. Finally, I should like to report here still another, hybrid approach to the problem. It was developed by Rupert Cross (supra note 9), and rests on asking judges what sentence they would give in cases submitted to them in a thumbnail sketch containing all the relevant features of the case. However, the point of the experiment, unknown to the judges, was the occasional addition of a potentially prejudicial circumstance, clearly irrelevant to the severity of the crime. Thus, one group of the judges would receive a case of negligent automobile homicide, while another group of judges would receive the very same case with one innocent addition, such as that the guilty driver “a married man, had his mistress in the automobile.” It is my understanding that the adulterers were “punished” more severely.

22. See note 6, supra.

23. See Kalvan and Zeisel, The American Jury, 1966, A Somber Postscript: Decisions on the Death Penalty.

24. A Study of the California Penalty Jury in First-Degree Murder Cases, 21 Stanford Law R. 1297 (1969).