Sentencing: Allocation of Authority

The three guideline systems highlighted above are sufficiently different from one another that they give the reader a fair sense of the diverse permutations of sentencing discretion that are possible under guidelines—depending on how the overall guidelines system is designed. The discussion above has not been comprehensive, however, for the sixteen guidelines systems currently up and running in America are all different from one another, and the new guidelines proposals on the table in several additional states promise still more experimentation.

Seven of the existing guidelines states, for example, have not abrogated the release authority of the parole board. Pennsylvania, which adopted guidelines in 1982, is one such jurisdiction. Much like Delaware, Pennsylvania's guidelines are advisory and are not enforced by the state appellate courts, so sentencing discretion at the systemic level does not have many teeth. At the case-specific level, the release authority of the corrections department has been abolished in Pennsylvania, but the parole board still has discretion to release prisoners after a minimum of one-half of their sentence has been served (Pennsylvania Consolidated Statutes, § 9756). Thus, trial judges and representatives of the sentencing commission in Pennsylvania claim that the most important ultimate decision-maker, for prison cases, is the parole board. Certainly, when significant back-end release discretion exists to modify trial-court prison sentences, the power of trial judges is diminished. Although Pennsylvania's structure is in many ways similar to the Delaware system shown in Figure 6, the major differences between Delaware and Pennsylvania occur in the relative powers of the parole board and the trial judiciary. An overview of these discretionary effects in Pennsylvania is presented in Figure 8.