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Sentencing Guidelines: Fair Or Unfair

Sentencing guideline systems for determining criminal sentences have dramatically changed the way punishment is meted out in U.S. courtrooms. Twenty-two states and the federal government use sentencing guidelines, which require a judge to calculate a criminal sentence using a mathematical formula. Points are assigned based on the defendant's offenses, prior criminal record, and other factors. A total is calculated, and the sentence is computed. A judge has very little room to depart from the sentence mandated by the guidelines.

There has been controversy over the fairness and the legitimacy of using sentencing guidelines, with the most criticism directed at the U.S. Sentencing Guidelines. The criticism comes mostly from defense attorneys and judges, who argue that the guidelines give prosecutors too much power in the criminal justice system and give too little discretion to judges to shape a sentence to fit the individual defendant. Defenders of sentencing guidelines contend that they are a vast improvement over the way sentencing has traditionally been done, eliminating "judge shopping" and the ARBITRARY and disparate sentencing practices that come with unbridled judicial discretion.

Congress authorized the U.S. Sentencing Guidelines in 1984. The U.S. Sentencing Guidelines Commission, a seven-member panel appointed by the president and confirmed by the Senate, issued the first set of guidelines in 1987. The guidelines have been constantly changed, mostly by the commission, but also by congressional legislation. In addition, Congress has exercised its VETO power over amendments proposed by the commission. By 1996 the federal guidelines had grown to an 850-page manual, containing complex formulas for computing different types of sentences.

Proponents of federal sentencing guidelines believe that they reduce sentencing disparity and guarantee harsher punishment for federal felons, many of whom are convicted for selling illegal narcotics. Before the guidelines were created, the proponents argue, defendants tried to avoid judges who handed out tough sentences and to find one who would be lenient. Thus, in one court a bank robber would get an eighteen-year sentence, while in another a robber convicted of the same crime would receive only five years in prison. In addition, there was evidence to suggest that minorities received the harshest treatment. Sentencing guidelines have, therefore, reduced the arbitrary dispensation of punishment.

Proponents also contend that because the guidelines provide predictable sentences, they serve as a deterrent to crime. Criminals know the formula of past conviction plus new conviction equals a certain criminal sentence. Criminals no longer can play the angles in the criminal justice system to their advantage but must face a definite punishment.

Defenders of the guidelines also believe that the reduction of judicial discretion reduces the stress suffered by federal trial judges. No longer do judges have to wrestle with their emotions in devising an appropriate sentence. The guidelines provide an efficient means of delivering a criminal sentence that conforms to public policy goals set out by Congress and the guidelines commission.

Critics of the federal guidelines contend that while the idea of uniform criminal sentences may seem attractive, in practice the guidelines have created another arbitrary system of sentencing. A major criticism is the shift in power from the judge to the federal prosecutor. Because the criminal charge will trigger, upon conviction, a particular sentence in the guidelines, a prosecutor's charging decision is the most important one in the case. A prosecutor can determine whether a defendant's time in prison is short or long by manipulating the charges and a case's extenuating circumstances.

Critics argue that prosecutorial discretion has replaced judicial discretion, allowing defendants who hire defense counsel knowledgeable in the workings of the guidelines to negotiate plea agreements that reduce the charges and accompanying jail time. Defendants with less EFFECTIVE COUNSEL receive longer sentences. Critics point to the disparate sentences received by defendants involved in the same crime. Therefore, it is clear that prosecutors can manipulate the charges, with judges powerless to change the sentencing outcome.

Critics, especially federal judges, decry the loss of discretion to shape a criminal sentence that is appropriate to the individual. The federal guidelines impose mathematical formulas, reducing a human being to the number of points on a sentencing grid worksheet. Judges are forced to ignore the particular circumstances of the case and the individual and hand out the sentence dictated by the guidelines. Those judges who depart from the guidelines and give more lenient or more severe sentences invariably invite appellate review of their decisions.

Another criticism is that the guidelines reflect political concerns more than penological ones. Critics charge that Congress, in its zeal to be regarded as tough on crime, has imposed severe penalties that are out of proportion to the nature of some of the offenses. In addition, Congress has vetoed some sentencing commission revisions to the guidelines that it has regarded as politically unacceptable.

Critics also object to the growing complexity of the guidelines, analogizing the various provisions to the INTERNAL REVENUE CODE. The sentencing commission's continuous revisions, contend critics, have undermined the stability of the guidelines and lessened the goals of predictability and uniformity.

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