Sentencing: Guidelines

The idea of a "commission on sentencing" can be traced to Marvin Frankel's influential writings of the early 1970s, most notably his 1973 book Criminal Sentences: Law Without Order. Frankel wanted to replace what he saw as the "lawless" processes of indeterminate sentencing with an alternative model that would promote legal regularity. His chosen vehicles were chiefly procedural innovations, and it is possible to identify three fundamental procedural goals in Frankel's plan: (1) The creation of a permanent, expert commission on sentencing in every jurisdiction, with both research and rulemaking capacities; (2) the articulation of broad policies and more specific regulations (later called guidelines) by legislatures and sentencing commissions, to have binding legal authority on case-by-case sentencing decisions made by trial judges; and (3) institution of meaningful appellate review of the appropriateness of individual sentences, so that a jurisprudence of sentencing could develop through the accumulation of case decisions.

Along with these procedural elements, Frankel advocated for two major substantive goals: (1) Greater uniformity in punishments imposed upon similarly situated offenders, with a concomitant reduction in inexplicable disparities, including racial disparities in punishment and widely varying sentences based simply on the predilections of individual judges; and (2) a substantial reduction in the overall severity of punishments as imposed by courts throughout the United States, including a general shortening of terms of incarceration, and the expanded use of intermediate punishments.

Frankel's suggestions that U.S. jurisdictions should create permanent sentencing commissions, which in turn should author sentencing guidelines, have been enormously productive of institutional changes. In the early 1970s, commissions and guidelines were wholly new ideas, and existed nowhere. By midyear 1999, as summarized in Figure 1, sixteen American jurisdictions were operating with some form of sentencing guidelines (including fifteen states and the federal system). In four additional states, fully developed guideline proposals are under consideration by the state legislatures, and at least three more jurisdictions were in the early stages of deliberations that may eventually lead to commission-based sentencing reform. In nearly thirty years since Frankel's seminal writings, this is a remarkable record indeed, unrivaled by nearly any other work of criminal-law-related scholarship over the same period.