Sentencing: Guidelines

There is little question that sentencing guidelines have succeeded in injecting systemwide policy judgments about the goals of punishment into case-by-case decision-making. How one assesses this achievement turns in part upon whether one agrees with the goals that have been effectuated. For example, the earliest guideline innovations of the 1980s (such as those in Minnesota, Washington, and Oregon) all built their systems on a "just deserts" rationale, scaling punishment severity to the blameworthiness of offenders as measured by current crimes and past convictions. Some observers, like Andrew von Hirsch (an influential proponent of the just deserts theory), would rate such guidelines as enlightened reforms. Others, like Albert Alschuler and Michael Tonry, have charged that the just deserts model is an intolerably one-dimensional approach to punishment decisions.

Moving forward into the 1990s, several states have broadened the menu of underlying purposes that can be written into guidelines. For example, the current Virginia guidelines incorporate the criminological research of criminal careers in pursuit of a policy of selective incapacitation of the most dangerous offenders. Pennsylvania's guidelines, as revised in the mid-1990s, are driven by changing policies through five "levels" of the sentencing matrix. At Level 5 (the most serious cases), retribution and public safety are dominant concerns. Moving downward through the other levels, priorities of victim restitution, community service, and offender treatment become increasingly prominent. And in a recent study, Richard Frase has argued that the Minnesota guidelines, as modified by appellate court decisions and system actors, have come to exemplify the theory of "limiting retributivism" propounded by Norval Morris in which an offender's blameworthiness sets loose boundaries on available penalties, but consequential concerns such as the prospects for rehabilitation may be used to select a punishment within those boundaries (Frase, 1997). Even the federal guidelines, which claim to be agnostic as to sentencing purposes, can be said to embody a "philosophical" position that most criminal sentences under guidelines should be harsher than those imposed before the guidelines were created.

Data concerning big-picture sentencing patterns reinforce the gathering impression that sentencing commissions have had impact upon jurisdiction-wide punishment policy. Many state guideline systems since the 1980s have reported that, since guidelines were implemented, penalties for violent crimes have been deliberately increased, often at the same time that penalties for nonviolent offenses have been deliberately reduced. Because nonviolent offenses are so much more numerous than nonviolent crimes, even small cutbacks in punishment at the low end of the seriousness scale can free up many prison beds for the more serious criminals. Such results might be applauded on grounds of just deserts, deterrence, or incapacitation. Moreover, the fact that a number of states have had success in manipulating sentencing patterns in this way is one indicator that the policies subsumed in guidelines can have appreciable effects upon sentencing outcomes across the system.