Sentencing: Allocation of Authority

Since the 1980s, the most popular form of "sentencing reform," among jurisdictions that have wished to move away from the traditional approach of indeterminate sentencing, has been the creation of a sentencing commission empowered to promulgate sentencing guidelines. The first sentencing commissions were chartered in Minnesota and Pennsylvania in the late 1970s; their guidelines went into effect in the early 1980s. Today, there are more than twenty sentencing commissions across the United States, and sixteen jurisdictions with some form of sentencing guidelines in operation. Most of the remaining commissions are at work formulating guideline proposals that have not yet been adopted by their state legislatures.

The amount of sentencing discretion held by sentencing commissions varies widely across American guideline jurisdictions. In some jurisdictions, such as Washington and North Carolina, the guidelines and guideline amendments authored by the commission do not take effect unless affirmatively enacted into law by the state legislature. This might be called a "legislative adoption" model. In other jurisdictions, such as Minnesota and in the federal system, the commission's guidelines and amendments automatically become effective within a specified time period after their promulgation by the commission—unless the legislature acts affirmatively to disapprove the commission's proposals. This might be called a "legislative veto" model. All other things being equal, the share of discretion held by a sentencing commission vis-à-vis the legislature is greater in the legislative-veto model than in the legislative-adoption scheme.

In addition to the commission's relationship to the legislature, the discretionary interrelationships of all actors within guidelines systems have differed dramatically from jurisdiction to jurisdiction since guidelines were first created in 1980. Some sentencing commissions are very powerful players when compared with trial judges in their systems and, in some other places, trial court discretion eclipses the authority of the commission. In a handful of U.S. guideline jurisdictions, the appellate bench exerts meaningful discretion in the realm of sentencing decisions, but in the majority of guidelines states, the appellate courts remain marginal discretionary players. Most guideline jurisdictions have abolished the release authority of the parole board and have limited the release discretion of corrections officials, but in some guideline systems these "back-end" release discretions remain fully intact.

Discretion diagrams can be useful tools to capture these and other permutations of decision-making authority across guideline jurisdictions. The diagrams allow the major discretionary features of different systems to be summarized visually, so that policy makers may compare the advantages and disadvantages of alternative structures.