Sentencing: Guidelines

Another central design feature of a sentencing guideline system is the number of severity (or grading) distinctions that the system attempts to capture within the guidelines themselves—as opposed to allowing trial judges discretion to sort among shadings of offense gravity. As Albert Alschuler noted in a classic 1978 article, there is something ridiculous about having 132 grades of robbery—but how far should guidelines go in such a direction? The number of formal classifications written into guideline grids has differed greatly across jurisdictions, but most guidelines have been modest in their attempts at grading precision. The grids in state jurisdictions have generally incorporated nine to fifteen levels of offense severity, and four to nine categories for offenders' prior records. The Minnesota grid in Figure 2 is representative: Its ten-by-seven format contains a total of seventy guideline "cells" or "boxes." The North Carolina chart in Figure 3, also representative, features a total of fifty-four cells.

The current federal sentencing guidelines system, inaugurated in 1987, opted for a much more intricate matrix than those used by the states, reflecting a philosophy that the U.S. Sentencing Commission can and should make precise distinctions among cases in advance of adjudication in the courts. The federal grid incorporates forty-three levels of crime seriousness and six categories for prior criminal history, yielding a total of 258 guideline cells. If anything, however, the visual complexity of the federal grid understates the degree to which the federal system attempts to draw fine distinctions among specific cases. Unlike all state guideline systems, offense severity under federal law is not fixed by the crime(s) of conviction. The conviction offense is merely one factor among many fed into a multistep calculation, including "relevant conduct" (other related crimes the defendant probably committed, but for which convictions were not obtained), a point-scale scoring of the "base offense level" (which can go up or down depending on such things as the weight of the drugs involved in a narcotics offense or the amount of money lost in a fraud case), and further point "adjustments" for surrounding circumstances (for example, two points off for "acceptance of responsibility," or two points added for "more than minimal planning"). In these and other respects (mentioned below), the federal guidelines are the most "fine-toothed" and rigid of any guideline system now in operation across the country. For all of its size and complexity, however, the federal grid does nothing to assist sentencing judges in the selection among intermediate punishments.