Sentencing: Allocation of Authority - Definition Of Sentencing Discretion, A Discretion Diagram, Indeterminate Sentencing Systems, Statutory Determinate Sentencing, Mandatory Penalties
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In the United States there are now a wide range of legal approaches to the sentencing of criminal offenders. These include indeterminate sentencing systems in many states, statutory determinate systems in a few others, and a growing number of sentencing guideline systems among the states and in federal law. The diversity in legal structure for punishment decisions has brought with it a great deal of experimentation concerning which decision-makers hold meaningful authority—or discretion—over sentencing outcomes. Allocations of sentencing discretion
can be remarkably different as one moves from one American jurisdiction to another.
Additional Topics
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.…
A pictorial discretion diagram can be used to visualize many of the important relationships that exist in real-world sentencing systems. Figure 1, "A Discretion Diagram for Sentencing Systems," is a generic diagram that is not tailored to any up-and-running system. It introduces a cast of characters who may or may not possess meaningful sentencing authority in a given punishment stru…
For most of the twentieth century, the indeterminate sentencing system was the dominant legal structure for punishment decisions in the United States. Through the 1940s, 1950s, and 1960s it was virtually the universal approach in this country, and remains (with adjustments here and there) the basic system followed by nearly half of the American states. The original philosophy of indeterminate sent…
In the 1970s, a handful of states including Arizona, California, Colorado, Illinois, Indiana, and North Carolina modified their former indeterminate sentencing schemes to provide for greater specificity and certainty in authorized punishments as a mailer of statutory command. (Colorado reverted back to indeterminacy in the 1980s, while North Carolina went on to adopt sentencing guidelines in the 1…
An important variation on the theme of statutory determinate sentencing occurs when legislatures fix exact penalties, or exact minimum penalties, for particular crimes. For example, some states have laws stating that the sentence for first-degree murder must be a life term in prison without the possibility of parole. This is an instance of a mandatory penalty. In other states,
Figure 3
th…
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…
The current federal guidelines system, in effect since 1987, attempts to concentrate sentencing discretion at the systemic level and constrain such discretion at the case-specific level. In both respects, the federal system differs sharply from most guideline structures that have been adopted at the state level. Although there is a great deal of variation across the country in the operation of the…
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…
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 app…
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 runnin…
There are a number of decision-makers who, in some cases, and in some jurisdictions, hold and exercise discretion to influence punishment outcomes, but who are not represented on the discretion diagrams featured above. A number of these decision-makers will be noted in this section. First, victims of offenses in the 1980s and 1990s have increasingly become a part of the formal criminal process, in…
American Bar Association. Standards for Criminal Justice: Sentencing, 3d ed. Chicago: ABA Press, 1994. Bureau of Justice Assistance. National Assessment of Structured Sentencing. Washington, D.C.: Office of Justice Programs, 1996. ——. National Survey of State Sentencing Structures. Washington, D.C.: Office of Justice Programs, 1998. ——. "Sentencing Guidelines in …
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