Sentencing: Allocation of Authority

Minnesota, the oldest of all guideline systems in the United states, has taken a middle course between the polar discretionary arrangements illustrated in the federal system and the Delaware system. Where the federal system attempts to concentrate most sentencing discretion at the systemic level, and where the Delaware system attempts to collect very little authority at the systemic level, the approach in Minnesota has been to balance the discretion exercised at the systemic level (by legislature and commission) with discretion discharged at the case-specific level (by the judiciary). Figure 7 attempts to capture this equilibrium in the apportionment of discretion with shapes of similar size for the major discretionary players at both levels.

Less concerned with enforced uniformity than the architects of the federal system, the designers in Minnesota saw the case-specific discretion of trial judges as a desirable feature in the overall system. The original set of guidelines promulgated by the Minnesota Sentencing Commission purported to govern only "ordinary" or "typical" cases. The theory was that trial judges would follow the guidelines prescriptions in the majority of cases, but would retain discretion to depart from the guidelines in cases that were sufficiently atypical. Such a departure decision, however, would have to be explained on the record, Figure 7 and the trial judge's reasoning made subject to appellate review.

As in the federal system, the actual operation of the Minnesota guidelines has been greatly dependent upon the behavior of the state's appellate courts. If Minnesota's appellate judiciary had chosen to enforce the guidelines to their strict letter, as the federal appeals bench often has done, then trial judges in Minnesota might have become marginal discretionary players in the new system. Instead, however, the Minnesota Supreme Court and Court of Appeals have taken a measured approach to guideline enforcement. Soon after guidelines were enacted, the appellate courts declared that the guidelines were legally binding on trial judges (not merely voluntary, as in Delaware), yet the appellate courts said they would allow sentencing judges to select non-guideline punishments in cases where "substantial and compelling reasons" could be set forth on the record. In practice, trial court sentences below the guideline range have almost always been upheld on appeal in Minnesota and sentences somewhat above the range are usually affirmed as well, but sentences greatly above the range are hard-pressed to survive on appeal in the absence of compelling justification. One study of sentencing appeals rendered in 1995 found that, overall, a sentence handed down by a trial judge in Minnesota had only one-tenth the chances of being reversed on appeal as in the federal system.

The appellate bench in Minnesota has enforced a kind of give-and-take arrangement between the sentencing commission and trial judges. The commission's guidelines are expected to govern most of the time, but a sentencing court sufficiently moved by the circumstances of an individual case can work around the guidelines, subject to review. As among Minnesota's sentencing commission, the trial bench, and the appellate bench, it would be hard to say which has been the dominant player within the sentencing structure since guidelines were enacted in 1980. Indeed, the three institutions are constantly jostling within a framework of shared powers.

To fill out the description of discretionary relationships shown on Figure 7, it should be noted that the Minnesota legislature has not played a consistently powerful role in the determination of punishment outcomes. When the Minnesota Sentencing Commission was first created in the 1970s, the legislature gave it few specific instructions about what its mission should be. Thus, the initial shape of Minnesota's guidelines was more the result of commission discretion than legislative directive. Over time, however, state legislators have learned that they can exert immediate influence over sentencing policy by instructing the commission to amend its guidelines in specific ways. Such legislative interventions have not been an annual event in Minnesota, but they testify to the power of systemic governance available to the legislature should the legislature choose to use it.

On the case-specific level, Minnesota, like many other guidelines jurisdictions, chose to eliminate parole release when sentencing guidelines went into operation, and also cut back on the early release authority of corrections officials. As we have seen in both the federal system and in Delaware, such changes shift discretion toward the litigation players at the case-specific level. Indeed, one selling point among Minnesota's trial judges, when the state's guidelines were first proposed, was that judicial sentencing authority would actually be increased in comparison with the prior system of indeterminate sentencing. While trial judges are more constrained than formerly by authorities at the systemic level, new controls on the back-end release of prisoners ensure that judicially pronounced punishments bear predictable relationship to sentences actually served.

The full-sized shape on Figure 7 for "the parties" represents the continued importance of plea bargaining within the Minnesota system. Richard Frase, in a 1993 study, found that the pre-guidelines practices of plea negotiation seemed alive and well in Minnesota's guideline structure, but there is no reason to believe that there has been an unintended exacerbation of the importance of charging decisions and plea bargains, as many perceive to have occurred in federal law. The experience of Minnesota, like Delaware, disproves any notion that guidelines structures inevitably enlarge the sentencing discretion of prosecutors. The track record of both states, in comparison with the federal structure, suggests that the best remedy for an undue bulging of discretion in the prosecutor is a system that preserves meaningful sentencing authority in the hands of trial judges. Where trial courts are marginalized, as in the federal system pictured in Figure 5, or as under mandatory penalties as pictured in Figure 4, charging and plea bargaining discretions tend to gain enormous importance.