Guided Discretion Statutes

Guided discretion statutes restrict the otherwise unbounded discretion of judges and juries during noncapital and capital sentencing, respectively. Such statutes come in two forms. First, in determinate sentencing systems such statutes provide a sentencing range within which the sentencing judge is to sentence unless unusual factors are present. Such statutes also outline individualized factors that should guide departures from the prescribed range. The goals of such statutes are to decrease judicial discretion and the resulting disparity and create a more rational sentencing policy. Guided discretion statutes have accomplished these goals, albeit with varying success.

Judicial resistance to guided discretion statutes was most pronounced in the federal system, but declined once the Supreme Court declared the federal sentencing guidelines constitutional. Nevertheless, federal judges continue to resist the complexity of the federal sentencing regime and their limited discretion. Even though guided discretion statutes limit judicial sentencing discretion, disparity continues throughout the system because prosecutorial charging and plea bargaining decisions remain largely unpoliced.

Second, in Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court declared the death penalty, as administered, unconstitutional because of its ‘‘wanton[] and . . . freakish[]’’ imposition. Under the statutes then existing, juries lacked any guidance in deciding whether death should be imposed.

Following the decision, some states enacted guided discretion statutes that mandated the separation of the guilt and punishment phase, required appellate review, and set out specific aggravating and mitigating factors. In Gregg v. Georgia, 428 U.S. 153 (1976), and subsequent cases, the Supreme Court upheld different versions of such statutes.

Today virtually all of the states authorizing the death penalty have guided discretion statutes. While such statutes have made the sentencing process fairer and less arbitrary, they have not succeeded in eliminating the impact of extrajudicial factors on sentencing.

NORA V. DEMLEITNER

References and Further Reading

  • Bowers, William J., The Capital Jury Project: Rationale, Design, and Preview of Early Findings, Indiana Law Journal 70 (1995): 1043.
  • Parent, Dale. Structuring Criminal Sentencing: The Evolution of Minnesota’s Sentencing Guidelines. London: Butterworth Legal Publishers, 1988.
  • Reitz, Kevin. ‘‘Modeling Discretion in American Sentencing Systems.’’ Law and Policy 20 (1998): 289.

Cases and Statutes Cited

  • Furman v. Georgia, 408 U.S. 238 (1972)
  • Gregg v. Georgia, 428 U.S. 153 (1976)

See also Capital Punishment; Capital Punishment and the Equal Protection Clause Cases; Capital Punishment: Due Process Limits; Capital Punishment: Eighth Amendment Limits; Capital Punishment: History and Politics; Sentencing Guidelines

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