The Limits of Federal Criminal Sentencing Policy; or, Confessions of Two Reformed Reformers

Abstract

Sixteen years after the passage of the Sentencing Reform Act, how is federal sentencing reform faring? Certainly, the Commission has done its first job of promulgating determinate sentencing guidelines to replace the previous sentencing system. Those guidelines have generated a formidable body of federal sentencing law, including thousands of judicial decisions. The reviews of that body of law are mixed, causing consternation to some and satisfaction to others. On a more fundamental policy level, there is evidence that the guidelines have advanced one of the initial objectives of sentencing reform, which was to reduce the amount of unarticulated variation in federal sentencing outcomes. But what has been learned about the sentencing process and about the efficacy of punishment, and what do those lessons imply for the future potential of sentencing reform and the continuing work of the Commission? The purpose of this Article, written by two participants in the early phases of the federal sentencing reform, is to pose those questions. We also suggest some tentative answers, based upon our experience in and subsequent observation of the progression of sentencing reform.