Sentencing: Guidelines - Origins Of Sentencing Commissions And Guidelines, Design Features Of Guideline Structures, Guideline Grids, Guidelines For Intermediate Punishments
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"Sentencing guidelines" are rules or recommendations created by judges or an expert administrative agency, usually called a "sentencing commission," which are intended to influence, channel, or even dictate the punishment decisions made by trial courts in individual cases. Since the early 1970s, commission-based guideline structures have emerged as the principal alternative to traditional practices of "indeterminate sentencing," under which judges and parole boards hold unguided and unreviewable discretion within broad ranges of statutorily authorized penalties. Sentencing guidelines in operation have varied widely in their form, content, legal authority, and even in their nomenclature. (Not all guidelines are called guidelines.) It is thus treacherous to assume that "all guidelines are created equal."
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The idea of a "commission on sentencing" can be traced to Marvin Frankel's influential writings of the early 1970s, most notably his 1973 book Criminal Sentences: Law Without Order. Frankel wanted to replace what he saw as the "lawless" processes of indeterminate sentencing with an alternative model that would promote legal regularity. His chosen vehicles were ch…
Most sentencing guideline systems in America in the late twentieth century used the format of a two-dimensional "grid" or "matrix." Figure 2 provides an illustration of the popular grid approach, taken from the Minnesota Guidelines (see Minnesota Sentencing Guidelines Commission, 1997, p. 43). Along one axis of the grid, such guidelines rank offense severity on a hierar…
Some sentencing guidelines do provide at least limited direction to courts concerning the selection among intermediate punishment options. This is still an experimental undertaking, however, and one that has been attempted with ambition in only two or three states. The current North Carolina "Felony Punishment Chart," reproduced as Figure 3, illustrates one promising innovation in op…
Another central design feature of a sentencing guideline system is the number of severity (or grading) distinctions that the system attempts to capture within the guidelines themselves—as opposed to allowing trial judges discretion to sort among shadings of offense gravity. As Albert Alschuler noted in a classic 1978 article, there is something ridiculous about having 132 grades of robbery&…
In two U.S. jurisdictions (Delaware and Ohio), the sentencing commissions have eschewed the grid apparatus and have elected to communicate their guidelines in narrative form—expressing punishments though verbal
exposition rather than a numerical table. For example, in Delaware, the "presumptive" sentence for first-degree burglary by a first-time offender is written out in a…
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 workings of any set of sentencing guidelines are interrelated with the sentencing authority held by other institutional actors in the punishment system. The impact of sentencing guidelines on prison terms can be greatly affected by the presence or absence of a parole board with authority to set release dates for incarcerated offenders. Marvin Frankel argued in the early 1970s that parole relea…
All guideline jurisdictions have found it necessary to create rules that identify the factual issues at sentencing that must be resolved under the guidelines, those that are potentially relevant to a sentencing decision, and those viewed as forbidden considerations that may not be taken into account by sentencing courts. One heated controversy, addressed differently across jurisdictions, is whethe…
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 s…
On the issue of racial disproportionalities in sentencing, observers of guideline reforms have so far rendered a mixed verdict. For the nation as a whole, racial disparities in incarceration have become more pronounced since the early 1980s, when guidelines were first introduced. Forceful charges have been leveled that the federal guidelines, particularly for drug offenses, and in conjunction with…
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 fa…
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…
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 majori…
——. "The Failure of Sentencing Guidelines: A Plea for Less Aggregation." University of Chicago Law Review 58 (1993): 901–951. American Bar Association. Standards for Criminal Justice: Sentencing, 3d ed. Chicago: ABA Press, 1994. Bureau of Justice Assistance. National Assessment of Structured Sentencing. Washington, D.C.: U.S. Government Printing Office, 1996. Bur…
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