Sentencing Guidelines

Sentencing guidelines are bodies of law that encourage judges to select sentences in normal cases from a narrow range of preferred sentences, while still allowing judges in unusual cases to choose from a broader range authorized by statute. The impact of Sentencing guidelines on civil liberties varies from place to place. They sometimes combine the virtues of reasonably uniform outcomes with the ability to individualize each sentence. In many states, guidelines have become valuable methods for linking punishment policies to available resources, thus limiting the severity of punishments. On the other hand, in some jurisdictions (most prominently, the federal criminal justice system), guideline sentences have contributed to falling trial rates and increasingly severe punishments.

The concept of uniform guidance for Sentencing judges originated in the middle of the twentieth century. An early proposal for Sentencing guidelines carrying the force of law appeared in a short, but powerful, book published in 1973 by Judge Marvin Frankel, Criminal Sentences: Law without Order. Frankel condemned as ‘‘lawless’’ the discretionary Sentencing system that gave judges no legal standards for making choices with the most profound effects on liberty. In place of this system, Frankel suggested that a ‘‘Commission on Sentencing’’ enact rules to govern the judicial selection of sentences.

Sentencing guidelines first took effect in a few state systems, including Minnesota and Pennsylvania. In the federal system, the Sentencing Reform Act of 1984 established the U.S. Sentencing Commission and empowered it to create guidelines for federal judges. Now roughly half the states have enacted some form of Sentencing guidelines.

The reach of these Sentencing guidelines varies. The guidelines all cover felonies, while a few also guide judges in misdemeanor cases, despite the challenges of importing new legal structures into the highvolume world of petty crimes. Guidelines in a few states designate the nonprison punishments for judges to impose. Most guideline states abolish parole and embrace the concept of ‘‘truth in Sentencing,’’ which means that the sentence announced publicly in court corresponds closely to the sentence that the offender ultimately serves. In a few states, like Pennsylvania, Sentencing guidelines coexist with a continued parole authority to set the maximum prison term.

The binding power of Sentencing guidelines also varies. Some are known as ‘‘voluntary’’ guidelines, leaving judges free to sentence an offender outside the recommended range while staying within the broader statutory maximum and minimum. In contrast to these voluntary guidelines, some jurisdictions use ‘‘presumptive’’ guidelines. The judge who chooses a sentence within the presumptive range faces no appellate review and no obligation to explain the sentence, but a judge who ‘‘departs’’ from the guidelines to impose a higher or lower sentence triggers appellate review of that sentence and must offer a legally sufficient explanation for the departure.

Sentencing guidelines typically originate from an expert Sentencing commission. They might take the form of statutes that the commission recommends to the legislature or administrative regulations that the commission creates on its own. The commission also monitors the operation of guidelines over time and amends them to reflect changing conditions or priorities.

Commissions that draft ‘‘prescriptive’’ guidelines, which attempt to change some aspect of preguideline sentences, must develop the political skills to convince judges, prosecutors, and probation officers to support the guidelines. Determined opposition from courtroom actors can lead to inconsistent and ineffective application of Sentencing guidelines.

The U.S. Sentencing Commission has not been notably successful in winning the support of judges, defense attorneys, or line prosecutors. The federal guidelines create an elaborate structure to compel judges to consider all of the defendant’s conduct relevant to the ‘‘real offense’’ rather than limiting the relevant wrongdoing to the elements of the charged offense. This structure pushes some of the most important factual issues relevant to punishment out of the trial and into the procedurally informal Sentencing hearing. The federal Sentencing guidelines are also blamed for major prison population growth in the system, although the heavy use of mandatory minimum sentences contributes heavily to this problem.

The effects of Sentencing guidelines in many states have been more positive. They have promoted more transparent connections between Sentencing rules and actual Sentencing practices, along with clearer explanations for many routine Sentencing decisions. On balance, they have probably helped constrain the growth of prisons and have promoted more consistent use of criminal punishments, perhaps even removing some of the racial disparities that plague discretionary Sentencing.

RONALD F. WRIGHT

References and Further Reading

• Barkow, Rachel, Administering Crime, UCLA Law Review 52 (2005): 3: 715–814.
• Bowman, Frank, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, Columbia Law Review 105 (2005): 4: 1315–1350.
• Frankel, Marvin. Criminal Sentences: Law without Order. New York: Hill and Wantg, 1973.
• Frase, Richard, State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues, Columbia Law Review 105 (2005): 4: 1190–1232.
• Miller, Marc, True Grid: Revealing Sentencing Policy, U.C. Davis Law Review 25 (1992): 3: 587–610.
• Stith, Kate, and Jose´ A. Cabranes. Fear of Judging: Sentencing Guidelines in the Federal Courts. Chicago: University of Chicago Press, 1998.
• Tonry, Michael. Sentencing Matters. New York: Oxford University Press, 1996.

Cases and Statutes Cited

• Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1873

See also Mandatory Minimum Sentences; Prison Population Growth; Three Strikes/Proportionality