Sentencing: Guidelines

Marvin Frankel hoped that the rationalizing process of commission-based sentencing reform would ultimately lead to what he viewed as more humane sentencing outcomes overall: a reduced reliance on incarceration and increased creativity in the use of intermediate punishments. Writing in the early 1970s, Frankel could hardly have predicted that prison and jail confinement rates in America would in fact increase by more than a factor of four in the next twenty-five years, with most of the confinement explosion occurring after 1980. We must ask how much of the incarceration boom has been attributable to the advent of sentencing guidelines.

Some of it clearly has been. In the federal system, where our knowledge base is deepest, U.S. District Court judges complain regularly that the guidelines (or Congress's mandatory minimums, or both) force them to impose heavier sentences than they would otherwise have chosen. These claims are consistent with the original legislative and commission intents in promulgating the federal guidelines, as outlined in a 1998 book by Stith and Cabranes: there was widespread political sentiment during the Reagan administration that federal judges had been meting out sentences of undue leniency for many crimes, and the federal guideline reform was directed in large part to preventing that from happening by curtailing the judges' discretion.

Raw statistics suggest that the designers of the federal system got what they wanted. In the first ten years under the new federal guidelines, from 1987 to 1997, the federal imprisonment rate increased by 119 percent. This growth surge was 25 percent greater than the average increase in imprisonment rates for the nation as a whole during the same period (Bureau of Justice Statistics, 1998, p. 491, table 6.36). In contrast, in the decade prior to the advent of the guidelines, the federal prison system had been expanding at a much slower pace (23 percent growth in imprisonment rates from 1977 to 1987), far below the national average (77 percent). There is good reason to conclude that the federal sentencing guidelines, in combination with congressional mandatory penalties, ushered in an era of deliberately engineered increases in punitive severity, and shifted gears in federal imprisonment from a slow-growth pace to a fast-growth pace virtually overnight.

At the state level, the relationship between guideline reform and sentencing severity has been mixed, but more consistent with Frankel's original vision than the federal experience. A number of state legislatures and commissions have created guideline structures with the express purpose of containing prison growth. Minnesota was the first jurisdiction to attempt this, beginning in 1980, by crafting its guidelines with the aid of a computer simulation model to forecast future sentencing patterns. Over the first ten years under the state's guidelines, imprisonment rates in Minnesota did incline upward, but only by 47 percent—in a period when the nationwide imprisonment rate more than doubled (plus 110 percent). This pattern of some incarceration growth, but slower than the national average, was also seen during the first ten years of the Washington and Oregon guidelines, respectively. Washington's imprisonment rates increased by 29 percent from 1984 to 1994, while national rates increased by 107 percent. Oregon's imprisonment rates rose by only 11 percent from 1989 to 1998, while national rates went up 70 percent over the same period. In a 1995 study of sentencing commissions operative in the 1980s, Thomas Marvell identified six state commissions that were instructed to consider prison capacity when promulgating guidelines. In all six jurisdictions, Marvell found "comparatively slow prison population growth," prompting him to write that "These findings are a refreshing departure from the usual negative results when evaluating criminal justice reforms" (p. 707).

In the 1990s, newer commissions in Virginia and North Carolina have also had notable success in restraining the incarceration explosion. Virginia's guidelines, for example, were created early in the administration of a new governor who had promised to crack down on violent crime and abolish parole. While allowing the governor to keep his campaign commitments, the new Virginia guidelines have coincided with a 3 percent decrease in the state's imprisonment rate from 1995 to 1998 (a period in which national rates climbed by 12 percent).

In North Carolina, the state's imprisonment rate (inmates with sentences over one year, per 100,000 state residents) grew at a fast (19 percent) pace during the first year of the new guidelines, from year-end 1994 to year-end 1995. This can largely be attributed to sentences still being handed down under pre-guidelines law, however, and the temporary growth surge was predicted by the state's sentencing commission. In the three successive calendar years of 1996 through 1998, as guideline cases have entered the system in greater numbers, North Carolina's imprisonment rates have fallen every year. Perhaps just as significantly, the state's guidelines have ushered in deliberate changes in the proportionate share of convicted felons sent to prison and those routed to intermediate punishments. In the first three years under guidelines, the total confinement rate for felony offenders fell from 48 to 34 percent, reflecting the state's policy judgment that an increased share of nonviolent felons should be sentenced to intermediate punishments. In order to accommodate this change, the commission successfully lobbied the state legislature to provide increased funding for intermediate-punishment programming. At the same time, however, North Carolina's guidelines have substantially increased the use of prison bed space for violent offenders. In the state's political arena, the North Carolina commission has won widespread support for its tripartite agenda of severe punishment for violent criminals, the expanded use of intermediate punishments for less serious offenses, and the introduction of planned "resource management" of prison growth.

Slow-growth policy has not been the whole story under state guidelines, however. Like the federal commission, the Pennsylvania sentencing commission was instructed by its legislature to write guidelines that would toughen prison sentences as compared with prior judicial practice—and Pennsylvania's prisons have grown steadily under the guidelines regime. In sixteen years under guidelines, between 1982 and 1998, Pennsylvania's imprisonment rate has increased by 244 percent, while the national rate increased by "only" 171 percent. Even in the pioneering states of Minnesota, Washington, and Oregon, the state legislatures (and sometimes the voters, through the initiative process), have acted to toughen sentencing guidelines and other sentencing provisions. In the late 1980s, the Minnesota legislature ordered the state sentencing commission to retool its guidelines to provide harsher sentences for violent crimes, beginning a period of planned prison growth. Accordingly, during the 1990s, Minnesota's prisons have grown slightly faster than the national average. Washington and Oregon steered similar courses in the late 1980s and the early 1990s.

Two conclusions on guidelines and prison growth emerge from two decades of experience. First, guidelines and computer projections have proven to be surprisingly effective technologies for the deliberate resource management of incarcerated populations—but they are tools that may be used with equal facility to push aggregate sentencing severity up or down. As Michael Tonry noted in 1993, virtually all sentencing guideline systems have been "successful" on this score, if we measure success against what the commission and legislature were trying to achieve. Second, the overall experience of guidelines to date has been that they have sometimes been used to retard prison growth (measured against national trends) and they have sometimes been used to parallel or even exceed the course of prison expansion observable in non-guideline jurisdictions. It is thus difficult to attribute independent causal significance to guidelines as a driving force of the prison boom in the past quarter century. In a number of instances, and whenever called upon to do so, guidelines have been an effective force in the opposite direction.