Varying Binding Effects of Guidelines -- the Mandatory-to-Advisory Continuum

March 25, 2015
  • Some guidelines are mandatory unless there are grounds for departure.
  • Some guidelines are only advisory, although judges are required to at least consider them.
  • Each of these system types has variations, yielding a continuum not a dichotomy.

An important structural variation across guidelines systems has to do with whether recommended sentences are mandatory, purely advisory, or something in between these polar opposites.1 Although some guidelines are considered mandatory, it is important to stress that no guidelines rules are truly mandatory in the way that mandatory or mandatory-minimum statutes are (i.e., requiring the judge to impose a particular sentence or minimum sentence, with no power to disregard the rule). One of the distinctive features of so-called mandatory guidelines is that the recommended sentences provided for each group of cases are only presumed to be correct, based on the characteristics of typical cases of that type, and the presumption may be rebutted -- judges may depart from the recommended sentence if the case is sufficiently atypical to meet that system’s standard for departure, and the judge states reasons that are consistent with general guidelines policies. Rather than define one pole of this continuum as “mandatory,” it is better to ask whether a given system’s typical-case recommendations and departure standards are legally binding on judges, and are enforced by active appellate review with occasional reversal of sentences for violation of guidelines rules or policies.

Legally-binding guidelines systems with active appellate review, generating a large body of appellate case law, are found in Kansas, Minnesota, Oregon, and Washington.  Again, however, the guidelines recommendations in these states are only presumptive, not mandatory. Trial courts retain considerable discretion as to both the type and the severity of sanctions, and appellate review does not appear to have unduly limited trial court discretion.2

At the other end of the continuum are systems in which the guidelines recommendations and departure standards are purely advisory, allowing judges to ignore the recommendations and impose any sentence up to the statutory maximum for that offense (and at or above the statutory minimum, if any).  Examples of jurisdictions following this model are Arkansas, Delaware, the District of Columbia, Maryland, Massachusetts, Utah, and Virginia; the guidelines in these systems are expressly described as “voluntary” and departures are not subject to appeal. Between these polar extremes there are numerous variations. Some purely-advisory guidelines systems have particular features that encourage judges to follow the guidelines; conversely, some legally-binding guidelines leave judges with very broad or even complete discretion in certain respects, thus functioning, in those contexts, more like an advisory system.

Degrees of “advisory” force. In most advisory guidelines systems judges are required to give reasons for departure from the guidelines;3 this encourages judges to at least consider guidelines policies, articulate rationales justifying departure, and make factual findings to support departure. From there, the degree to which departures can be reviewed on appeal can move the guidelines further along the “advisory” to “mandatory” continuum. Even if there is no appellate review of the substantive validity of the reasons for departure, failure to state any reasons can sometimes lead to appellate reversal for procedural error.4  Moreover, appellate review and reversal on substantive grounds does occur in some of these systems; Pennsylvania, Tennessee, and the federal courts view their guidelines as “advisory,” yet some or all sentences are subject to appellate review and may be reversed if found “unreasonable.”5 Finally, even in the absence of any appellate review, compliance rates in some advisory-guidelines jurisdictions are quite high,6 which suggests that in these systems peer pressure from fellow judges or other informal processes may at least partially substitute for appellate review.7

Degrees of “mandatory” force. There are also important differences among the states with legally-binding guidelines, in terms of their mandatory nature.  Some of these systems permit appellate review of all sentences, whereas others only permit review of departures, thus leaving judges with complete discretion to refuse to depart even where there might be grounds to do so.  There are also major differences in the standard of review and degree of deference to the trial court where appeal is allowed.  For example, in North Carolina the standard of appellate review of departures is so deferential that the typical-case presumptive-sentence range is, as a practical matter, only advisory; sentences in the “aggravated” or “mitigated” ranges are rarely reversed on appeal.8 And in some systems the recommended sentencing ranges are so wide  that few sentences will qualify as departures and will therefore not attract closer scrutiny on appeal.9

To summarize: although each guidelines system can be classified as belonging to one of two categories, mandatory or advisory, the systems within each of these categories are quite varied, and the degree of binding force of guidelines rules is best seen as a continuum rather than a simple, mandatory-advisory dichotomy.

1 One state – Alabama – has purely advisory guidelines for some crimes, and mandatory guidelines for other crimes.
2 See Kevin R. Reitz, Sentencing Guidelines Systems and Sentence Appeals: A Comparison of Federal and State Experiences, 91 Northwestern University Law Review 1441, 1458-71 (1997) (discussing appellate review in Minnesota, Pennsylvania, the federal system).
3 See Jon Wool & Don Stemen, Aggravated Sentencing: Blakely v. Washington. Practical Implications for State Sentencing Systems (Vera Inst. of Justice Aug. 2004, http://www.vera.org/publications/publications_5.asp?publication_id=242), p. 5 (identifying Arkansas, Delaware, Maryland, Utah, and Virginia as voluntary guidelines states requiring judges to state reasons for departure); D.C. Sentencing & Criminal Code Revision Comm’n, Voluntary Sentencing Guidelines Manual 2014, scdc.dc.gov, at 1 (2014).
4 See, e.g., Gall v. United States, 552 U.S. 38, 51 (2007) (reversible procedural error includes failing to adequately explain deviation from the recommended guidelines sentence).
5 Pa. Cons. Stat. § 9781; State v. Bise, 380 S.W. 3rd 682 (Tenn. 2012); United States v. Booker, 543 U.S. 220 (2005).
6 See, e.g., Rachel E. Barkow, Administering Crime, 52 UCLA L. Rev. 715, 795 n354 (2005) (citing 79% compliance rate in Virginia in 2003).
7 In Washington, judicial compliance with guidelines recommendations is encouraged by publishing judge-specific data on departure rates. See David Boerner & Roxanne Lieb, Sentencing Reform in the Other Washington, 28 Crime and Justice: A Review of Research 71, 107 (Michael Tonry, ed.) (2001) (noting that since 1996 Washington state has published judge-specific sentencing data). Compliance with guidelines policy can also be enforced by making some sentencing options illegal (see discussion of North Carolina rules, note 9 infra).
8 Ronald F. Wright, Counting the Cost of Sentencing in North Carolina, 1980-2000, 29 Crime and Justice: A Review of Research 39, 94 (2002).   However, this state’s guidelines should still be classified as “mandatory” because they prohibit extreme durational departures (sentences above or below the aggravating and mitigating sentencing ranges); they also prohibit upward dispositional departures (e.g., imposition of a prison sentence rather than the recommended probation), while providing very narrow grounds for downward dispositional departure.  See Wright, supra, at 79 (noting that judges may not impose a custody sentence above the aggravated range or below the mitigated range); Richard S. Frase, Just Sentencing: Principles and Procedures for a Workable System (2013), p. 160 (noting that upward dispositional departures are prohibited, and that mitigated dispositional departures are allowed but seem to rarely occur).
9 For example, in Florida sentencing ranges extend all the way up to the statutory maximum, so there is no such thing as an upward durational departure.  Fla. Dep’t of Corr. & The Office of the State Courts Adm’r, Florida Criminal Punishment Code Scoresheet Preparation Manual, dc.state.fl.us at 13 (Oct. 1, 2014), http://www.dc.state.fl.us/pub/sen_cpcm/cpc_manual.pdf.

Authors

Richard Frase
Co-Director, Robina Institute of Criminal Law and Criminal Justice