Why Have U.S. State and Federal Jurisdictions Enacted Sentencing Guidelines?

March 25, 2015
The primary goals of the earliest sentencing guidelines reforms were two-fold:1
  • Reducing sentencing disparities by limiting and structuring the discretion of judges and parole boards when they make sentencing and prison-release decisions.
  • Promoting more rational and informed sentencing policy by creating a specialized agency, the sentencing commission, to develop policy and monitor implementation.
Over time several other reform goals were recognized or given increased importance:2
  • Better management of limited and expensive correctional resources.
  • Encouraging more frequent, effective, and consistent use of intermediate sanctions that are less restrictive than prison but more restrictive than traditional probation.
  • Promoting transparency and “truth in sentencing” by reducing the difference between the prison term imposed and the actual amount of time the offender spends in prison.
This article will examine what these goals mean, and how sentencing guidelines have helped to achieve each goal.

Disparity reduction. This goal might seem self-evident – who could be in favor of disparity? But the meaning of this term changed in the late 20th Century, and the change made more sentences appear unacceptably disparate. The concept of disparity requires a normative framework for evaluating and comparing cases – what sentencing purposes and other criteria make two cases “similar,” such that they should receive similar penalties, or sufficiently different that the penalties should be different? Sentences given to any two offenders can be disparate relative to one set of sentencing criteria, but not relative to other criteria. And although some criteria may tend to produce more inconsistency in their application, that kind of disparity may be tolerated, by those strongly favoring such criteria, as an unfortunate but necessary byproduct.

Prior to adoption of the first sentencing guidelines in the late 1970s, the dominant purposes of punishment were rehabilitation (seeking to change the underlying causes of the defendant’s criminal behavior) and incapacitation (preventing crime by confining dangerous offenders).3 To achieve these goals, judges and parole boards were given extremely broad discretion to assess the rehabilitation potential and dangerousness of each offender.  Under this "indeterminate” sentencing system, judges could impose any sentence from probation to the maximum prison term authorized by law.  Most systems required offenders to serve some fraction of their prison term before becoming eligible for parole; but after that point the parole board had unreviewable discretion to decide how much of the remaining sentence would have to be served.4 Parole boards were expected to base release decisions on the offender’s progress toward rehabilitation and current degree of dangerousness. Since the highly individualized decisions made by judges and parole boards required broad discretion, a certain amount of disparity in the treatment of identical cases was inevitable, and was deemed acceptable.

However, in the 1970s and 1980s indeterminate sentencing came under widespread attack, and in a number of states a bi-partisan consensus emerged that discretion in sentencing and prison release decisions should be substantially reduced.5 According to this reassessment, unregulated discretion fails to provide sufficiently certain and severe punishment to deter crime and incapacitate dangerous offenders, and it also produces substantial and unjustifiable differences in the treatment of similar cases.  Studies were done which showed that when a sentencing file was given to a group of judges they proposed very different sentences; it wasn’t just that “each case is unique.”6 These differences were all the more troubling because of their potential to contribute to racial disparities in sentencing. Many people also came to believe that individualized assessments by judges of each offender's treatment needs and recidivism risk are too unreliable to justify the sentencing disparities they produce, and that most prison treatment programs cannot be shown to be effective.7

Broad parole discretion also came under attack because it likewise leads to very different treatment of offenders who have committed the same crime.8 Moreover, such discretion leaves crime victims, the public, prisoners, and their families with no idea how long imprisonment will last.  And it relies on individualized assessments of treatment progress and current dangerousness that are of questionable reliability when based on behavior in an artificial prison environment, by inmates whose primary goal is often not true reform but rather giving the appearance of reform.9

In the 1970s there was also a resurgence of support for the sentencing goal of retribution or “just deserts.”10 Proponents of this theory argued that, instead of basing the sentence on each defendant’s needs for rehabilitation and incapacitation, the offender should be punished in proportion to his or her culpability and the seriousness of the conviction offense.  Increasing the uniformity and proportionality of sentences relative to crime seriousness can also promote two other resurgent sentencing goals: deterrence (discouraging offenders and would-be offenders from committing crimes by instilling fear of punishment), and standard-setting (reinforcement of important social norms of acceptable behavior).11 To achieve these goals more serious crimes should consistently receive more severe penalties.

Finally, proponents of just deserts, deterrence, standard setting, and incapacitation also agreed on another key element of sentencing: offenders with more extensive prior conviction records should consistently receive more severe penalties.12 Such enhancements were justified on various grounds – that such offenders deserve more punishment; that they and other repeat offenders will be deterred by more severe penalties; and that the extent of an offender’s prior record provides a more reliable indicator of his risk of future recidivism (and thus, his need for closer supervision, or incapacitation in prison) than individualized risk assessments.

These changing views of sentencing goals thus combined to redefine the meaning of “disparity,” the perceived frequency and acceptability of disparities, and the best way to reduce them.  Under the new meaning, disparity exists when offenders with similar current offenses and prior records do not receive similar penalties, and when offenders committing more serious current offenses, and/or with more serious prior conviction records, do not receive more severe penalties. To reduce such disparities, sentencing rules needed to be simplified to emphasize these two primary criteria. Thus was born the two-dimensional matrix (sentencing “grid”) that most guidelines systems employ. Even in guidelines systems that do not employ any grids, recommended sentences are based primarily on the same two factors – the seriousness of the current conviction offense(s), and the extent of the offender’s prior conviction record.

To reduce judicial sentencing discretion the guidelines provide, for each combination of current offense and prior record, a set of recommended sentencing options and/or a range of recommended prison terms that is more limited than judges are given under indeterminate sentencing regimes.  Judges may still, when confronted with atypical case facts, make use of more options or a wider range of prison terms, provided they comply with applicable standards for “departure” from the guidelines recommendations.  And within the guidelines ranges or by departure, judges in most systems may still examine particular case facts and consider all of the traditional purposes of punishment. Thus, judicial discretion is retained, but within narrower limits defined by current offense seriousness and prior record.  Some guidelines commissions described this new model as “modified just deserts,”13 and academic writers have called it “limiting retributivism” – the seriousness of the offender’s current and prior offending sets outer limits on sentencing severity, within which case-specific, non-desert criteria are applied.14

Similarly, many guidelines systems chose to reduce discretion in the granting of release from prison by abolishing parole release discretion (however, a period of post-prison supervision was usually retained).15 Under these revised systems of “real time” sentencing, prison terms are often shorter, at least for non-violent crimes, but offenders are required to serve the entire prison term imposed, with reduction only for good conduct rather than based on a subjective determination that the person has made progress toward rehabilitation and reduced dangerousness.  In these systems, current offense and prior record thus determine not only the decision to impose prison but also, to a large extent, the time to be served.

More rational sentencing policy. This goal has two facets.16 First, the use of an independent, appointed commission to develop and monitor guidelines serves to partially insulate sentencing policy decisions from short-term political pressures to appear “tough on crime,” particularly in reaction to a few high-profile crimes.  Second, the commission, like other administrative agencies, is directed to collect data and develop expertise which will contribute to more informed, evidence-based sentencing policy.  The commission’s database and expertise (and in many states, its mandate to avoid prison overcrowding, discussed below) also promotes a more comprehensive, long-term, and fiscally responsible perspective.  Sentencing policy is determined on a state-wide basis for all crimes (or all felonies), thus avoiding piecemeal reforms in response to the news media’s “crime of the week,” and helping to more effectively set priorities for the use of limited correctional resources.

Better management of correctional resources. Because sentencing under guidelines is more uniform and predictable than indeterminate sentencing, and guidelines commissions can collect data on past and current sentences imposed, the implementation of guidelines has allowed states to forecast the impact that particular recommended sentences will have on future inmate and supervision populations.  This in turn allows these jurisdictions to manage their use of prison and other limited and expensive correctional resources deliberately and “on the front end” of the sentencing process, rather than having to react to problems of overcrowding or misallocation of resources after they have occurred.17

Minnesota pioneered this approach based on a statutory directive that the guidelines commission, in drafting its proposed sentences, should take prison capacity and other correctional resources into “substantial consideration.” The commission implemented this mandate by developing a computer model to predict future prison populations, and by adopting a goal of not exceeding 95 percent of that capacity.18 Using this model, the commission has been able to set priorities on prison use – using limited prison beds for the inmates who most need to be there.  During the first decade of guidelines sentencing, prison populations rose steadily, but only in proportion to rising felony caseloads.19 In later decades inmate populations rose faster than caseloads due to increased penalties, but the state was always able to expand its prison capacity in time to avoid the serious overcrowding problems, court intervention, and emergency release of prisoners that occurred in many other states.20

As other states began to adopt sentencing guidelines systems in the 1980s and 1990s, improved resource management became a more and more important reform goal.21 Almost all guidelines systems now recognize this goal, although they implement it in very different ways. Some systems use resource-impact assessments to stay within or close to existing capacity by trimming and/or prioritizing sentence enhancements; other systems set recommended sentences without regard to capacity and then tell the legislature what additional capacity will be needed.22

More frequent, effective, and consistent use of intermediate sanctions. Prior to sentencing guidelines, judges often faced a binary choice: send the offender to prison, or place him on probation with few conditions other than to remain law abiding.23 But to achieve cost-effective management of correctional resources and avoid prison overcrowding, while holding offenders accountable for their crimes and protecting public safety, judges need sentencing options – “intermediate sanctions” -- less severe than prison but more restrictive than loosely-supervised probation.  And since most offenders, with or without guidelines, will not be sent to prison initially, but could be sent later if they violate probation terms, judges need guidance in the setting and enforcement of probation conditions.

Decisions about the imposition and enforcement of intermediate sanctions are inherently more dependent on case-specific factors, and thus they are not as easily regulated as are decisions about imposition and duration of prison terms.24 Nevertheless, guidelines systems have increasingly sought to encourage and structure the use of intermediate sanctions, and to structure the enforcement of release conditions and discourage excessive use of the sanction of revocation and imprisonment.25 For example, each cell on the Oregon guidelines grid that carries a recommended non-prison sentence specifies the maximum number of jail days and the maximum number of total “sanction units” (including both custodial and non-custodial sanctions) that may be imposed without departure as a conditions of probation; the Oregon guidelines also specify the maximum number of jail days that may be imposed to sanction release violations without revocation, and further specify that in case of revocation without a new conviction the offender may be sent to prison for no more than six months.26

A major impediment to broader use of intermediate sanctions is that they take time and resources to set up.  Even though they cost less than prison, and can help to avoid unnecessary incarceration, in the short term it is all too easy for local judges and prosecutors to simply ship the offender off to state prison rather than try to manage the offender in community-based programs that are under-funded and usually paid for by the city or county.  But sentencing commissions can facilitate the kinds of state-wide planning and state-local coordination that can create and fund local programs to better match offenders’ needs and available programs.27

Promotion of greater transparency and truth in sentencing. As noted above, a major critique of indeterminate sentencing is that broad parole-release discretion produces great uncertainty about how long an offender will remain in prison. In the 1990s this concern resurfaced with a focus on the expectations of crime victims and their families. The reality in most parole-retention jurisdictions was that offenders were usually released not long after their date of first eligibility for release; for example, an offender might be sentenced to ten years in prison and released after one or two years.28 Victims and their advocates were sometimes shocked to see the offender back on the street so soon, and began to insist on “truth in sentencing” -- the sentence imposed in court should bear a close relationship to the time actually served in prison.29 Most of this pressure was directed at states and guidelines systems that retained parole-release discretion, but in guidelines and other states that had already abolished such discretion there was pressure to lower the proportion of prison terms that could be reduced by good-conduct credits.30

A 1994 federal statute strongly encouraged truth in sentencing goals by providing substantial funds for prison construction to states that required inmates convicted of serious crimes to serve at least 85 percent of their sentences.31 Although that program has ended, the desire to achieve truth in sentencing continues to motivate guidelines states that have not yet abolished parole release discretion to do so,32 and this goal also remains a reason to limit the size of good-conduct credits (which states might otherwise want to increase, in order to lower prison populations and expense). Truth in sentencing goals may also encourage some states to consider adopting guidelines for judges. As noted above, in many parole-retention states prisoners serve a very low proportion of their sentences (sometimes less than twenty percent). If such a state wishes to substantially raise that percent without incurring massive increases in prison populations, judges will have to be persuaded to lower their sentence lengths, and guidelines are the best way to do that.
1 See Andrew von Hirsch, The Sentencing Commission’s Functions, in:Andrew von Hirsch, Kay A. Knapp, and Michael Tonry, The Sentencing Commission and Its Guidelines (1987).
2 See Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Fed. Sentencing Reporter 69 (1999); id., State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues, 105 Columbia L. Rev. 1190 (2005).
3 See, e.g., Research on Sentencing: The Search for Reform 1-4 (Alfred Blumstein et al., eds. 1983).
4 Id; Michael Tonry, Sentencing Matters 6 (1996).
5 Blumstein et al., supra note 3; Kevin R. Reitz, The Disassembly and Reassembly of U.S. Sentencing Practices, in: Sentencing and Sanctions in Western Countries (Michael Tonry and Richard S. Frase, eds, 2001), at 223-224.
6 See, e.g., Shari Diamond and Hans Zeisel, Sentencing Councils: A Study of Sentencing Disparity and its Reduction, 43 U. Chi. L. Rev. 109 (1976).
7 Tonry, supra note 4, at 9; Reitz, supra note 5, at 223.
8 See. e.g., Norval Morris, The Future of Imprisonment 12-27 (1974).
9 Id. at 16-17.
10 See, e.g., Andrew von Hirsch, Doing Justice: The Choice of Punishments (1976).
11 Richard S. Frase, Punishment Purposes, 58 Stanf. L. Rev. 67, 74-75 (2005).
12 Norval Morris, Madness and the Criminal Law 162-63 (1982). See generally,  Previous Convictions at Sentencing (Julian V. Roberts and Andrew von Hirsch, eds., 2010).
13 Minn. Sentencing Guidelines Commission, Report to the Legislature 9 (1980).
14 Morris, supra note 8, at 73-76; Morris, supra note 12, at 182-183; Richard S. Frase, Just Sentencing: Principles and Procedures for a Workable System 24-31, 82-85 (2013).
15 See generally Frase, supra note 14, chapter 3 (describing variations in the features of state and federal guidelines reforms).
16 Tonry, supra note 4, at 9-10, 59-64.
17 Richard S. Frase, State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues, 105 Colum. L. Rev. 1190, 1196, 1198, 1216-19 (2005).
18 Minn. Sentencing Guidelines Commission, supra note 13, at 13-14.
19 Richard S. Frase, Sentencing Guidelines in Minnesota, 1978-2003, 32 Crime & Justice: A Review of Research 131, 196-98 (2005), Frase, supra note 14, at 121, 124-25.
20 Id.
21 Frase, supra note 14, at 121, 124-25; Frase, supra note 17, at 1196, 1198.
22 Frase, supra note 17, at 1216.
23 Norval Morris and Michael Tonry, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System (1990).
24 Frase, supra note 17, at 1224.
25 See, e.g., Frase, supra note 14, chapter 3, describing efforts in several guidelines states to encourage and structure the use of intermediate sanctions, while also structuring the imposition of sanctions for violations of release conditions.
26 Id. at 149.
27 Frase, supra note 14, at 57-62, 65-67.
28 Frase, supra note 17, at 1222.
29 See, e.g., Frase, supra note 14, at 157, noting North Carolina’s adoption of truth in sentencing as a reform goal.
30 See, e.g., Frase, supra note 14, at 156 (noting that Kansas lowered its good-time credit allocation from 20 to 15 percent, although that change was subsequently reversed for certain offenders.
31 Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, Sept. 13, 1994.
32 In Alabama, for example, the legislature has adopted a long-range goal of abolishing parole release discretion, and has requested the sentencing commission to submit a plan by October 2020 to govern the duration of prison sentences after abolition occurs.

Authors

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