Sentencing: Guidelines

Sentencing commissions and guidelines are still at an early stage in their institutional history. (Indeterminate sentencing, in contrast, has roots that reach back more than a full century.) Twenty years of experience with sentencing guidelines have not yielded a single model of reform, nor have guidelines yet replaced the indeterminate sentencing structures that remain at work in a bare majority of the American states. In the coming decades, there will almost certainly be continued experimentation and diversification in approach among existing guideline jurisdictions, as among the additional states that will come "on line" with new guidelines in the early twenty-first century.

It is likely that the proven ability of sentencing guidelines (plus computer projections) to manage the growth of correctional populations will induce a steadily increasing number of jurisdictions to invest in some version of guideline reform. But the future of guidelines will also depend heavily upon demonstrable improvements in existing guideline technology along a number of dimensions: system designers will have to solve the problem of finding the right balance between the legal enforceability of guidelines and the role for judicial discretion in sentencing determinations. Guideline drafters must also continue their experiments with incorporating consequential purposes of punishment into sentencing systems, if the policy community is to become convinced that guidelines can do more than instantiate a "one-note" just deserts program. Guideline designers will also continue to be faced with the unsolved riddle of addressing the array of intermediate punishments with guideline prescriptions—building upon a small store of promising initiatives from the late 1990s. Sentencing commissions will also be crucial forums for the ongoing struggle to combat racial disproportionalities in criminal punishment—although these efforts are likely to reinforce our understanding that the sentencing process is only one part of a much larger problem. Finally, the next generation of guideline evolution will depend on far better assessment research than has yet been performed, so that we may better approach such conundrums as the dynamics of charging and plea bargaining within guideline systems, the degree to which guidelines provide room for values of both uniformity and discretion, and the successes or failures of guidelines in furthering their underlying policy objectives. All of these issues, and others, will play out in numerous jurisdictions and in varying permutations in the coming years. Those interested in sentencing guidelines, their established viability, and their potential, must of necessity become "comparativists"–with curiosity and knowledge extending outward across multiple systems.