Sentencing

C. Sentencing Guidelines

Perhaps the most significant development in determinate sentencing has been the widespread implementation of sentencing guidelines, which have become a popular vehicle for enacting large-scale sentencing reform. Like other determinate sentencing reforms, sentencing guidelines constrain judicial sentencing discretion, but unlike other reforms, the creation of sentencing guidelines is typically delegated to a sentencing commission, or a specialized administrative body of judges, lawyers, politicians, and other legal specialists. Sentencing guidelines were first proposed by Judge Frankel (1973) as part of his eloquent diatribe against indeterminate sentencing in the 1970s. He argued that unlike the state legislature, an administrative commission of sentencing experts would be able to develop special competency regarding appropriate punishments while remaining isolated from short-term political pressures. He also argued that a standardized system of sentencing recommendations, or “guidelines,” were needed to provide uniform benchmarks for judges at sentencing in order to increase equality in punishment. Most sentencing guidelines today are set up as two-dimensional grids that include a measure of the seriousness of the current offense on one axis, and a measure of the prior criminal record of the offender on the other. Sentencing decisions are determined by the intersection of these two core sentencing criteria. More serious crimes and longer criminal histories result in more severe recommended punishments.

Although all sentencing guidelines are founded on similar core ideas, the way in which they have been implemented in different jurisdictions is extremely varied. Guideline systems differ in their complexity, in their sentencing ranges, in the amount of discretion they afford judges, in whether or not they retain discretionary parole release, in the types of crimes and sentencing options they cover as well as the philosophies of punishment they emphasize, and in the extent to which they deviate from past sentencing practices (Frase, 2005). Some guidelines, such as Minnesota’s, only govern prison sentences for felony offenses, whereas others, like Pennsylvania’s, cover a broad range of sentencing options, including jail, prison, and various intermediate sanctions, for both felony and misdemeanor offenses. A few states, like Delaware and Ohio, have created narrative rather than grid-based guidelines, and other states like Maryland have developed separate sentencing matrices for different crime categories. There has been some discussion of creating three-dimensional guidelines that incorporate other factors like offender culpability or amenability to treatment, but no state has yet taken this approach.

Although there are a number of subtle differences in the types of guidelines currently in use, guidelines systems can be broadly categorized on a continuum between “presumptive guidelines” and “voluntary guidelines.” Presumptive guidelines legally mandate judges to sentence within prescribed sentence ranges that are presumed to be appropriate unless there are unusual circumstances in the case. Judges can still sentence offenders outside of presumptive ranges, but these “departure” sentences require explicit justification, and they are subject to appellate review by a higher court. Voluntary guidelines, on the other hand, provide sentencing recommendations that are not legally binding. Judges are encouraged to consult the guidelines, but they are not required to follow them. Presumptive guidelines place a higher level of control over judicial sentencing discretion than voluntary guidelines. Similarly, different guidelines systems can also be categorized on a continuum between “descriptive guidelines” and “prescriptive guidelines.” Descriptive guidelines are based on past sentencing practices. They are meant to codify and define existing sentencing behaviors, whereas prescriptive guidelines “prescribe” new sentencing patterns that differ from past practices in substantively important ways. The first presumptive sentencing guidelines were implemented in Minnesota in 1980, followed by Pennsylvania in 1982, and today, about half the states either currently have or have experimented with some form of sentencing guidelines.

The bulk of the research evidence on the performance of sentencing guidelines indicates that they are effective in altering the preexisting punishment patterns of sentencing judges. There is also evidence that guidelines have helped reduce unwarranted sentencing disparities associated with offender characteristics like race, class, and gender, although they have not eliminated these differences altogether. Some scholars maintain that they have been successful in creating greater proportionality in punishment. In some states, sentencing commissions have also been able to utilize guideline systems to achieve systemic goals, like effective management of growing correctional populations. Many states now routinely conduct computer projections on prison populations in order to evaluate the influence of potential changes to their sentencing guidelines or to better gauge the impact of other punishment policies such as the implementation of proposed mandatory minimums. These projection estimates can provide useful information on future offender populations that can be utilized to alter sentencing practices in necessary ways. In some cases, resource management concerns have been the primary motivating factor behind the establishment of sentencing guidelines. Overall, then, commission-based regulation of sentencing guidelines has largely proven to be an effective mechanism for altering punishment patterns and implementing other policy initiatives such as correctional management goals.

For these reasons, state sentencing commissions and their guidelines have been a popular sentencing innovation. Although judges initially responded unfavorably to the curtailing of their sentencing discretion, many of them now openly embrace the idea of sentencing guidelines. In part, the relative success of guidelines stems from their broad appeal across multiple constituencies. Legal advocates, civil libertarians, and liberal scholars laud guidelines for encouraging greater consistency and uniformity in sentencing; crime control politicians, law enforcement agents, and conservative scholars support them for the certainty and severity of punishment they provide. Practitioners, including correctional officials, prosecutors, and even judges, often support sentencing guidelines because they reduce uncertainty in sentencing, increase predictability in corrections, and allow for improved resource management. Given the current breadth of their political support, the continued dissemination of state sentencing guidelines in the United States shows little sign of abating at this time, although this process is far from complete.

Not all sentencing guidelines have enjoyed unqualified success. Some states, like Wisconsin, have created sentencing commissions only to see them subsequently repealed, and other states have been unsuccessful in their attempts to promulgate guidelines altogether. The most controversial system of sentencing guidelines, though, is undoubtedly those created for the federal justice system. One prominent scholar has referred to them as the “most controversial and disliked sentencing reform initiative in U.S. history” (Tonry, 1996, p. 72). The federal guidelines have been repeatedly criticized for being overly rigid, harsh, and constraining, as well as too complex and mechanical in their application (Stith & Cabranes, 1998). Whereas most state guidelines systems have about 15 levels of offense severity, the federal guidelines have 43 levels. Moreover, their application involves the calculation of myriad offense-specific sentencing adjustments that complicate the calculation of guidelines sentences. For instance, in the federal system, offenders can receive a two- or three-level discount in the severity of their offense for “acceptance of responsibility,” which means that they show remorse or take responsibility for their criminal behavior. In practice, this discount is routinely provided as a reward for pleading guilty. Some critics also maintain that the federal guidelines are routinely circumvented by court actors in attempts to achieve more just sentencing outcomes. Although the architects of the federal guidelines attempted to create a sentencing system that would account for all relevant contingencies in sentencing, judges retain the power to sentence offenders outside of the recommended guideline ranges; however, they are only allowed to do so when there are extreme sentencing considerations not adequately accounted for by the commission. These are rare because the U.S. Sentencing Commission mandated that common mitigating factors like employment, mental health, and family consideration are “not ordinarily relevant” at sentencing. Unlike state systems, though, the federal guidelines also provide for departure sentences for “substantial assistance,” which means that an offender can receive a sentence below the guidelines recommendation for providing assistance in the prosecution of another federal criminal case. Research on federal departures shows that their use varies dramatically across federal districts and that the relative definition of what qualifies as “substantial assistance” is far from uniform (Johnson, Ulmer, & Kramer, 2008).

Since their inception in 1987, the federal sentencing guidelines have faced a number of important legal challenges. The guidelines were first criticized on grounds that they violated the “separation of powers” clause in the U.S. Constitution. The U.S. Sentencing Commission is lodged within the judicial branch of government, and critics maintained that because it was a bureaucratic administrative agency with the power to create laws, it was in fact performing legislative duties. In 1989, the Supreme Court ruled that the U.S. Sentencing Commission did not violate the separation of powers clause and that the federal guidelines were legally upheld (Mistretta v. United States). However, in a landmark case in 2005, the constitutionality of the federal guidelines was once again challenged, as described below.

One unique feature of the federal sentencing guidelines is that they are based on what is called “real-offense sentencing.” Rather than sentencing offenders based solely on the charges for which they are convicted, under the federal guidelines, offenders can be punished based on additional facts in the case. These elements can involve such things as magnitude of harm, motivation for the crime, and value of lost goods. The goal of real-offense sentencing is to limit the shift of sentencing discretion from the judge to the prosecutor, so that prosecutors could not determine the exact sentence by their choice of final charges of conviction. In particular, the federal guidelines provide for judicial consideration of “relevant conduct,” which means that the sentencing judge is required to factor any additional criminal behavior related to the offense into the final sentencing decision, including behaviors not formally charged or even those acquitted at trial. Importantly, the standard of evidence for determining relevant conduct of the offender is lower than it is for determining guilt at conviction. Offenders must be ruled guilty “beyond a reasonable doubt,” but a judge only needs a “preponderance of the evidence” (i.e., the judge only has to believe that the weight of the evidence supports the behavior) in order to apply relevant conduct enhancements at sentencing. In practice, what this means is that judges can enhance punishments for behaviors that are not subjected to the same standards of proof or the same constitutional right to have a jury decide the outcome. For these reasons, the Supreme Court in 2005 ruled 5 to 4 that the federal sentencing guidelines are in fact unconstitutional (United States v. Booker). At the same time, though, the Court determined that the guidelines could remain in effect, as long as they were converted to “advisory” guidelines rather than presumptive guidelines.

The full impact of this landmark decision on federal sentencing has yet to be realized, but preliminary evidence suggests that federal sentencing has not been dramatically altered, although judges have begun to sentence offenders outside the sentencing guidelines with increasing frequency (Hofer, 2007). The experience of the federal sentencing guidelines is unique, but it highlights some of the potential pitfalls in guidelines implementation. Although the future path of sentencing guidelines in the United States remains unclear, for the most part they have been popularly received in policy arenas and political circles. The extent to which sentencing guidelines and other recent innovations have successfully achieved the goals of increased uniformity and equality in punishment, though, remains the fervent topic of considerable scholarly research.

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