Uniformity and Discretion: Lessons on Reform from a Failed Sentencing Guidelines Effort

Abstract

ABSTRACT This study employed qualitative interviews with judges from a failed sentencing guidelines state to investigate the dynamics of the structured sentencing effort and leading causes of its failure. The findings point to concerns over losing judicial discretion and skepticism over efforts to replace a system of substantive justice with one of formal rationality. In addition, the lack of success of the federal guidelines cast a shadow over the state efforts. The results also suggest that stakeholders may not have appreciated key features of sentencing guidelines, including the binding degree of guidelines along the advisory-presumptive continuum, and the key mechanism of departures. Drawing on the study’s findings and the recent work of the American Law Institute’s Model Penal Code: Sentencing, the paper proposes that renewed guideline efforts should make the retention of departure discretion a central narrative of the reform discussion. New efforts could allay some of the historical concerns over guidelines by carefully contrasting the federal experience from successful state systems, and by stressing the balance between imparting uniformity and retaining judicial discretion.