Sentencing: Allocation of Authority

Sentencing discretion, as the term is used in this entry, exists whenever a participant in the design or operation of the criminal justice system can exercise choice in a way that dictates, places limits upon, or contributes to the sentencing outcome of a particular criminal case or whole categories of cases.

This is a broad definition that stretches familiar usages of the word "discretion." For one thing the definition of sentencing discretion embraces both public and private actors who take part in the processes leading up to final punishment outcomes. For another, the definition of sentencing discretion extends to acts of rulemaking by legislatures, sentencing commissions, and appellate courts, just as the definition extends to individualized decisions that affect only one defendant at a time. The expansive definition is necessary, however, to capture the complex and multilayered accumulation of human choices that eventuate, ultimately, in sentencing outcomes.

The term sentencing outcome also bears definition: As used here, it refers to the total of all sanctions as experienced by a criminal offender up until the moment that the legal system relinquishes jurisdiction over the offender.

Most sentencing outcomes build up over time and are the products of cumulative decisions by multiple actors. The sentencing process is "not over until it's over." For example, in most jurisdictions, a trial judge's pronouncement of a five-year sentence on a convicted offender would hardly qualify as a sentencing outcome. At the day of sentencing, we may still be at a relatively early point in the chronology of discretionary decisions affecting the punishment to be experienced by the offender. A parole board, together with officials in the department of corrections, might still hold enormous authority to fix the offender's actual release date from incarceration. (In some states, early release is possible after a small fraction of the judge's pronounced sentence has been served.) In many systems, we cannot guess the sentencing outcome in a prison case until the offender finally has been released on parole, perhaps years after the judge's decision in the courtroom—and additional years may elapse before the offender has successfully completed any term of supervised post-prison release. When this moment finally comes, we can look back and say what the total sentencing outcome has been.