Sentencing: Guidelines

First, it is probably fair to say that "uniformity in sentencing" has proven to be a more elusive commodity than sentencing reformers foresaw in the 1970s. For one thing, the past few decades have not yielded a consensus on what counts as uniformity. Nearly all guideline systems report that, in the great majority of cases, trial judges follow the applicable guidelines when imposing sentences. Surprisingly, high rates of guideline compliance are reported by a number of commissions with voluntary guidelines (including Delaware, Pennsylvania, and Virginia), as well as in jurisdictions with legally enforceable guidelines. Many people accept such reports as evidence of marginal improvements in sentencing uniformity when comparing guidelines with traditional indeterminate sentencing systems.

Critics, of the federal guidelines in particular, argue that high rates of guideline compliance show nothing more than false uniformity in sentencing. Such claims, in part, go to the very definition of uniformity: If one believes that federal guidelines mandate lock-step punishments that exclude consideration of important offender characteristics, then the federal guidelines will appear to demand rigidly disparate sentences (e.g., the person who committed crime x for reasons of economic deprivation gets the same sentence as the person who committed crime x out of pure avarice). On the other hand, if one believes that most personal characteristics of defendants should be removed from the sentencing calculus, and that punishment should be matched closely to criminal conduct, then current federal sentences tend to look both more appropriate and more uniform in application. Uniformity (as against what baseline) tends to be in the eye of the beholder.

Aside from such fundamental disagreements, which do not promise to dissipate any time soon, evaluators of existing guideline systems have discovered, or strongly suspected, that the plea bargaining process can work to undermine the goal of sentencing uniformity. A sophisticated study by Nagel and Schulhofer in 1992 of the federal guidelines in three cities found that the parties were "circumventing" the guidelines as often as 35 percent of the time through plea negotiations. Richard Frase's 1993 assessment concluded that plea bargaining remained a major force in sentencing outcomes after Minnesota's guidelines were implemented, as well—although perhaps no more so than before the guidelines. Again, there are different ways to assess the meager evidence in hand: It seems likely that plea negotiations are channeled by the parties' expectations of what the ultimate sentences in their cases would be under guidelines, and that negotiated resolutions thus treat the guidelines as a meaningful point of departure. However, the empirical evidence is far too slight to permit anyone to prove it, so the controversy will remain pending additional research.