Sentencing: Allocation of Authority

The Delaware guidelines system, as it has been in operation since 1990, is illustrated in Figure 6. The Delaware system utilizes the same basic array of institutions as those at work in the federal system (legislature, commission, guidelines, courtroom actors, correctional officials, the abolition of parole release), but to very different effect. A comparison of Delaware with the federal structure is a vivid way to contrast the allocations of discretion that are possible in different guidelines systems.

The greatest distinction between Delaware's guidelines and those in federal law is that, while the federal guidelines are tightly binding on federal judges, Delaware's guidelines are merely "voluntary"–to be used, or not used, by trial judges as they wish. To indicate the weak legal force of the Delaware guidelines, both the legislature and sentencing commission are pictured in Figure 6 as diminutive discretionary players. When these systemic actors speak through guidelines, they utter no more than advisory statements concerning what punishments should be.

At the case-specific level, the current Delaware approach to back-end decision makers is quite similar to federal law. As of 1990, parole release was abolished in Delaware and the release authority of corrections officials was placed under new limitations. Also like the federal system, the sharp confinement of discretion at the back end of the system tends to shift authority toward actors at the adjudication stage.

Among the litigation players, however, the Delaware structure could hardly be more different from the federal arrangement. Because guidelines are only advisory, trial courts may impose any punishment authorized in the criminal code—and Delaware's statutory penalties are expressed in broad statutory ranges left over from the days of indeterminate sentencing. Also like indeterminate schemes, the appellate courts in Delaware exercise virtually no review of the sentencing decisions of trial judges. The result of advisory guidelines and the near absence of sentence review, however, is the creation of far more sentencing discretion in Delaware's trial courts than that possessed by trial judges in indeterminate systems. This is because, under indeterminacy, the trial court's discretion is diluted by the later-in-time discretions of corrections officials and parole authorities. (Compare Figure 6 with Figure 2.) In the Delaware system, however, the trial judge is the last decision-maker to hold meaningful power over punishment outcomes.

It is especially interesting to compare the discretionary power of trial courts under the Delaware guidelines with that in the federal structure. Although both jurisdictions purport to be "sentencing guidelines" jurisdictions, and both systems operate with a similar cast of institutional players, the legal structure of the federal system brings all pressure to bear on choking off the sentencing discretion of trial judges, while Delaware has oriented its system to removing all checks upon the sentencing authority of its trial bench. The comparison of Delaware and the federal system illustrates the following point: As the sentencing discretion of the legislature or sentencing commission is inflated (as in federal law), the sentencing discretion belonging to trial courts tends to deflate—and vice versa. In Delaware, the weak and advisory powers exercised by systemic decision-makers are important complements to the very appreciable powers held by trial judges.

There have been no formal studies of prosecutorial discretion or plea bargaining practices under the Delaware guidelines, but it is clear that the case resolution presented by the parties cannot "tie the judge's hands" to the same extent as in the federal system. Significantly in Delaware, one does not hear the complaints so often voiced Figure 6 in the federal system that prosecutors have gained huge reservoirs of sentencing discretion under guidelines. It is difficult structurally to have a powerful trial bench and, at the same time, a system in which prosecutors hold determinative authority over sentencing outcomes. In Delaware, if the guideline sentence attending a plea agreement is not to a trial judge's satisfaction, the judge may depart from the voluntary guidelines at will.

Given the realities of courtroom operations, it is probable that plea agreements in Delaware are honored in spirit by trial courts much of the time. (Otherwise the courts, along with everyone else, would have to bear the costs of more frequent trials.) Therefore, the parties surely have substantial impact on sentencing decisions in Delaware, just as the recommendations of trusted probation officers may influence some judicial decisions. But the overall structure of Delaware law places the greatest and most definitive sentencing discretion directly in the trial judges. The discretionary allocations under Delaware's guidelines are so different from those under the federal guidelines, that the Delaware system might be described as the federal system "insideout."