Sentencing: Guidelines

Perhaps the most important design feature of existing guideline systems has been the degree of binding legal authority assigned to the sentencing ranges laid out in the guidelines. On one extreme, seven states presently operate with guidelines that are "voluntary," or merely "advisory," to the sentencing judge. In such systems, the court is free to consult or disregard the relevant guideline, and is permitted to impose any penalty authorized by the statute(s) of conviction. For example, a given case may be subject to a guideline range of forty-two to fifty months, yet otherwise be subject to a statutory maximum sentence of fifteen years (180 months). The full incarceration range available in the criminal code could be as wide as zero to 180 months—with the terms and conditions of any nonincarcerative penalty often left to the discretion of the judge, as well. In voluntary guideline systems, the specific guideline range of forty-two to fifty months is merely a recommendation within the much broader range of statutory options freely available to the judge.

There is one variation on this voluntary-guideline approach that exerts light pressure upon trial courts to stay within the guideline ranges: A number of states with voluntary guidelines require sentencing courts to produce a written explanation whenever they opt not to employ the suggested guideline penalty. This supplies at least a mild incentive for courts to abide by guideline provisions, since no similar burden of explanation attends a guideline-compliant decision. The required explanations also provide data to the sentencing commission, allowing the commission to identify frequently cited reasons for judicial noncompliance.

In a bare majority of current guideline structures (nine of sixteen jurisdictions in 1999, including the federal system), the stated guideline range carries a degree of enforceable legal authority. Under the Minnesota scheme, which has been emulated in a number of other states (including Washington, Oregon, Kansas, and the pending proposal in Massachusetts), trial courts are instructed that they must use the presumptive sentences in the guideline grid in "ordinary" cases—which in theory include the majority of all sentencing decisions. However, the trial judge retains discretion to "depart" from the guidelines in a case the judge finds to be atypical in some important respect. In the Minnesota model, the formal legal standard for a guideline departure is that the sentencing judge must find, and set forth on the record, "substantial and compelling reasons" why the presumptive guideline sentence would be too high or too low in a given case. Provided an adequate justification exists, the trial court is potentially freed from the guidelines and may choose a penalty from the broader range of options authorized by the statute(s) of conviction. A judge's departure sentence, however, may be appealed by the defendant (where there has been an "aggravated" departure) or by the government (following a "mitigated" departure). Ultimately, the appellate courts review whether the trial court has given sufficient reasons for a departure, and whether the degree of departure is consistent with those reasons. In almost all jurisdictions with legally enforceable guidelines, however, a sentence that conforms to the guidelines requires no explanation by the sentencing court and may not be appealed. Thus, in such systems, trial judges have a dual procedural incentive to honor the guidelines: when they do so, they need not justify their action with a statement of reasons, and there is no prospect of reversal by a higher court.

Two jurisdictions have built sentencing structures in which the guidelines are more tightly legally confining upon trial judges than in the Minnesota model. The federal guideline system bears surface similarity to the Minnesota approach, except that the "departure power" retained by trial courts is more strictly limited under federal law than in Minnesota and most other states. By federal statute, district court judges may impose a departure sentence only when "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described" (emphasis added). The same statute further provides that, "In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission" (18 U.S.C. § 3553(b)). As interpreted by the federal courts of appeals, this departure standard has been used regularly and often to reverse district court sentences outside the guidelines. A 1997 study found that the chances of a trial court's sentence being reversed on appeal were ten times greater in the federal system than in Minnesota, and fifty times greater than in Pennsylvania (Reitz, 1997). Thus, the federal guidelines are probably the most restrictive of judicial discretion of any yet created in the United States—because of their narrow ranges, the number of fine grading distinctions they draw among cases, and their unusually high degree of legal enforceability.

The only state guidelines to rival the federal system in legal authority are the North Carolina guidelines. Alone among guideline systems so far invented, there is no departure power in North Carolina. By statute, the trial court must impose a guideline sentence in every case. In effect, the guidelines have replaced the former maximum and minimum penalties that used to exist as a matter of statutory law.

Offsetting the forceful legal punch of the North Carolina guidelines, the sentencing ranges available to judges are generally broad in comparison with the federal system and the guidelines in many other states. A judge in North Carolina may select a sentence in the "presumptive range" as depicted in the "Felony Punishment Chart" (Figure 3), but the judge has unreviewable discretion to elect a sentence from the "aggravated" or "mitigated" ranges that are also set out on the chart. Thus, for example, in box E(I) on the North Carolina chart, the judge could impose an "active" (prison) sentence of any length between fifteen and thirty-one months, or the judge could substitute one or more "intermediate punishments." No appellate court may second-guess the trial judge across this continuum of possibilities. Appellate review exists only for "unlawful" sentences that reach beyond the aggravated or mitigated ranges.

The North Carolina model is unique among existing guideline structures. In the run-of-the-mill cases, North Carolina trial judges have more discretion (because of the breadth of available sentencing ranges) than judges in other jurisdictions where guidelines are legally binding. However, the North Carolina law cuts off sentencing options at the extreme high and low ends that remain available to judges in other jurisdictions, at least in sufficiently unusual cases, through the vehicle of the departure power.

In summary, the degree of real authority exerted by a set of guidelines upon trial judges depends upon a combination of factors: whether the guidelines are characterized by the legislature as legally binding or as advisory to the courts; whether the stated sentencing ranges are fine-toothed or broad-gauged; how many grading distinctions are built into the guidelines; whether the "departure power" retained by judges is defined in a broad or stingy fashion—if it exists at all; and whether the appellate courts are vigilant or lax in their guideline-enforcement function. Even a quick review of established sentencing guideline structures reveals a full spectrum of possibilities on all of these dimensions: Some guidelines are wholly advisory, some exert an exceedingly light touch on judicial authority, some are legally enforceable yet flexible when a sentencing judge feels strongly about a case (and can provide a reasoned basis for the feeling), and some guidelines are tightly restrictive—even mandatory—in their effects on sentencing outcomes. As noted earlier, all guidelines are not created equal.