Sentencing: Guidelines

Most sentencing guideline systems in America in the late twentieth century used the format of a two-dimensional "grid" or "matrix." Figure 2 provides an illustration of the popular grid approach, taken from the Minnesota Guidelines (see Minnesota Sentencing Guidelines Commission, 1997, p. 43). Along one axis of the grid, such guidelines rank offense severity on a hierarchical scale. On the other axis, a similar scale reflects the seriousness of the offender's prior criminal history. The guideline sentence in a particular case is derived by moving across the row designated for the offense to be punished, and down the column that corresponds to the offender's past record. Thus, for example, the guideline sentence under Minnesota's current grid for a conviction of residential burglary ("severity level V") by someone with a "criminal history score" of 4 (calculated by the number of prior felony sentences and their severity levels) is thirtysix to forty months of incarceration in a state prison.

The tightness or looseness of such "sentencing ranges" has differed greatly among American guideline jurisdictions, from a bandwidth of several months to as much as several years. For instance, the Pennsylvania guidelines in the early 1990s recommended penalty ranges as expansive as three to ten years for third degree murder and twenty-seven months to five years for rape and robbery with serious injury. (See Commonwealth of Pennsylvania Commission on Sentencing, Sentencing Guideline Implementation Manual, 3d ed., 9 August 1991, p. 12(a).) Thus, when comparing different systems, we may speak in terms of fine-toothed or broad-gauged sentencing guidelines, depending on the specificity with which the sentencing commission has articulated its punishment ranges.

Most guideline grids differentiate explicitly between sentences to incarceration and to non-prison sanctions. In Figure 2, the heavy black line that runs diagonally though the Minnesota grid is called the "in-out" line. For cases above the in-out line, the "presumptive" sentences in Minnesota are all prison terms. Offenders who fall within the guideline cells below the in-out line are subject to a "presumptive stayed sentence," which can include probation or any available intermediate sanction (although, in the Minnesota system, a "stayed" sentence may also include up to a year in jail at the discretion of the sentencing judge). For such cases, the number Figure 1 Figure 2 appearing in the grid cell is the presumptive duration of a stayed sentence. The Minnesota guidelines, it should be noted, do nothing to communicate to the judge which among the array of nonprison sanctions are appropriate in individual cases. Thus, no guidance is given to courts concerning the selection among such options as regular probation, intensive probation, in-patient or out-patient treatment programs, halfway houses, home confinement, community service, fines, victim restitution, and so forth. Such choices below the in-out line remain discretionary with the sentencing judge in Minnesota's structure.