Sentencing Guidelines in American Courts: A Forty-Year Retrospective

Abstract

This article updates the author’s previous survey of guidelines systems, published in this journal in 1999, and reviews what these reforms have and have not accomplished. Sentencing guidelines developed by an independent sentencing commission are currently being used in 17 states, the federal courts, and the District of Columbia. The majority of these systems have also replaced parole release discretion with defined good-time reductions for compliance with prison disciplinary rules and assigned prison programming, and this combination of sentencing and parole reform has been endorsed by the American Bar Association and the American Law Institute. The article summarizes and critiques the many variations among guidelines systems. Some relate to scope -- which crimes and sentencing issues are regulated; others concern design details – how the system actually works. The article identifies five central features of a well-designed guidelines system: a permanent, balanced, independent, and adequately funded sentencing commission; typical-case presumptive sentences and departure criteria; a hybrid sentencing theory that recognizes and harmonizes retributive and crime control purposes; balance between the competing benefits of rules and discretion; and sentence recommendations informed by resource and demographic impact assessments. Balance is also needed in terms of commission composition, and between the influence of the commission, the legislature, and case-level actors. But even if all of these features cannot be adopted, some form of structured sentencing is essential; completely discretionary sentencing is unacceptable. And in the past four decades, no competing structured sentencing model of comparable scope has been adopted or even seriously proposed.