The defendant is in a group of 12 percent of the population when you take the Type A blood and the PGM 1 plus 1 plus that could be responsible for the semen on that patrol car seat, and he is in 5 percent of that 12 percent that have the antisperm antibodies, and those are independent variables, as you learned.
[T]he reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo. Thus the import of the evaluation has been that if the prosecutor's remarks were “invited,” and did no more than respond substantially in order to “right the scale,” such comments would not warrant reversing the conviction.
Whenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law.
Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and the best interest of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may be released on parole at such time as the Commissioner may determine.
Another provision of the Act, § 4205(b), grants the district courts the discretion to determine, at the time of sentencing, when a prisoner imprisoned for more than a year shall become eligible for parole. Section 4205(b) permits the district courts to set that time at any point during the first third of the prison sentence. If the district court does not exercise that power, the prisoner will become eligible for parole, pursuant to § 4205(a), after service of one-third of his prison sentence.
The purpose of the principal Senate amendment (sec. 3) is to provide the court with optional procedures which will enable it to impose sentences indeterminate in nature. This will permit the court, at its discretion, to share with the executive branch responsibility for determining how long a period a prisoner should actually serve. The court will be authorized to impose a term of imprisonment either under the existing definite sentencing system [in which a prisoner would be eligible for parole only after serving one-third of his sentence], or fix the maximum term of the sentence and (1) direct that the prisoner shall be eligible for parole at any time up to one-third this maximum, as now provided by law, or (2) specify that the Board of Parole shall decide when the prisoner will be considered for parole. In other words, if the court is so disposed, it may give the Parole Board greater latitude in a particular case or, if it is not so inclined, may follow the present sentencing system.
I think one of the most important features is the section which provides that a prisoner has served a certain length of time, one-third of the sentence in the *1392 usual case, ten years in the case of an exceptionally long sentence, he shall be given a parole hearing. That does not mean that he will necessarily be released.
The decision as to when a lawfully sentenced defendant shall actually be released has been committed by Congress, with certain limitations, to the discretion of the Parole Commission. Whether wisely or not, Congress has decided that the Commission is in the best position to determine when release is appropriate, and in doing so, to moderate the disparities in the sentencing practices of individual judges. The authority of sentencing judges to select precise release dates is, by contrast, narrowly limited: the judge may select an early parole eligibility date, but that guarantees only that the defendant will be considered at that time by the Parole Commission.
As I see it, therefore, the sentencing choice is either a life sentence under 4205(a), in which case the defendant would be eligible for parole in 10 years and the decision about how long he should serve would be vested in the Parole Commission 10 years from now, or a *1393 sentence of a specified maximum and minimum term of years under 4105(b)(1), in which case it is up to me to designate at this time how long the defendant shall serve. I believe that it is incumbent upon me to make that decision in this case. Normally it is appropriate to sentence flexibly, leaving discretion to the Parole Commission, because release from prison is in part a function of how the prisoner progresses. However, in the case of Mr. Gwaltney, rehabilitation is not a factor. Moreover, there is no reason to suspect that in prison he will not behave in a proper fashion. There is thus, in my view, nothing to be anticipated over the course of the next 10 years which could inform the Parole Commission's discretion other than what is now known to me.
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