Sentencing guidelines and penal aims in Minnesota

Abstract

Richard Frase's essay (in this volume)(1) on Minnesota's guidelines raises the question of how the aims of a sentencing guidelines system can be assessed. In earlier writings, I have described the Minnesota guidelines as influenced principally by notions of desert.(2) Professor Frase, looking at the same standards, sees them as reflecting (at least in part) a more strongly utilitarian rationale. How can a single set of standards draw such different interpretations? It is because guideline systems reflect, inevitably, compromises among different ideologies and practical concerns. In some respects, Minnesota's guidelines rely on the gravity of the current crime; in other respects, they rely on ulterior factors. Given these mixed features, it is not possible to point to any given rationale and assert straightforwardly that it isthe aim of the system; but possible only to point out which features of the guidelines seem consistent with a given rationale, and which do not. A sentencing rationale, moreover, has dynamic functions: to provide a basis for criticizing particular aspects of the guidelines, and to point the direction in which the guidelines should develop in future. Espousing one or another rationale will alter how much the guidelines are seen as needing reform, and what those reforms should be. Identifying the rationale, therefore, is in important part a normative matter. I shall, in this essay, examine how the Minneosota guidelines may be assessed from the two perspectives: that of a desert (or modified-desert(3) rationale; and that of the retributivism which in Professor Frase's view explains many of the guidelines' important aspects. The latter view (or at least the version of it to which Frase refers) treats desert as defining only the upper limits on permissible punishments, below which preventive considerations may be used to determine the actual penalty.(4) Judged from the perspective of desert, the original 1980 guidelines contained much to be commended--except with respect to the treatment of defendants with long criminal records. However, several subsequent changes in the guidelines seem more problematic--particularly, the marked increase in presumptive durations of imprisonment, and the toughened treatment of drug offenses. As time has elapsed, therefore, a desert perspective would elicit a more critical stance on the guidelines. Some of the changes that have occurred appear to be more readily reconcilable with a philosophy of limiting retributivism. If, for example, desert places only upper limits on the permissible sentence, nothing would seem wrong with allowing downward departures on grounds of amenability to probation as Minnesota's courts have been doing. However, I shall suggest that this perspective suffers from the obverse problem, of being too permissive. The rationale fails to account for a number of significant restrictions on the permissible sentence that remain in the guidelines; and also does not seem particularly helpful as a guide to future reforms. Minnesota's sentencing grids, both in their original 1980 and their post-1989 versions, are set forth later in this article (in somewhat modified format).(5) The offense score--the vertical axis--grades the gravity of the current conviction offense (with representative offenses noted in the margin). The criminal history score reflects the number and seriousness of prior convictions. Across each grid is a line, dividing presumptive sentences to state prison from lesser sanctions. The numbers above the dispositional line represent normally-prescribed ranges of state prison terms. Below the line, the cells are marked NP (that is, No Prison), to indicate a presumption favoring a sanction other than state imprisonment. Neither grid prescribes specifically, however, what those other sanctions should be. Departures from the grid's presumptions are permitted on account of aggravating or mitigating circumstances. …