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September 3, 2018

"Giving Guidance to the Guidelines"

The title of this post is the title of this paper by Jelani Jefferson Exum recently posted to SSRN. Here is its abstract:

Throughout the country, we are seeing sentencing reform efforts reshape the way resources are being used to control crime and punish offenders.  Fueled mostly by the practical challenges of overcrowded prisons and mounting costs, lawmakers have been willing to amend existing law in order to reduce incarceration for low-level, nonviolent offenders. This same effort at being “smart on crime” has been embraced by the federal government as well.  While most of these changes are in the form of changes to mandatory minimum laws, the use of evidence-based sentencing practices, and a focus on diversion and re-entry programs, the role that the actual sentencers -- the judges -- play in the process should not be ignored. Any reform of federal sentencing necessarily requires reforming the U.S. Sentencing Guidelines to incorporate those changes.  However, now that the sentencing guidelines are advisory, judges can follow their own policy rationales in deciding what sentences are reasonable for each offender before them.  Therefore, though Congress may have made certain changes to sentencing law, and the Attorney General may have shifted law enforcement and punishment priorities, when it comes to individual sentencing decisions, judges are free to follow their own vision of sentencing reform.

While judicial sentencing discretion has its benefits when it comes to individualizing sentences, unfortunately, judges often do not have enough relevant information to adequately determine what amount and type of punishment is appropriate to achieve punishment goals.  However, my interviews with federal district judges indicate that many judges are very open to receiving such information.  Thus, federal sentencing reform efforts should include the development of a way to effectively deliver information about sentencing goals and purposes to district judges.  The Guidelines could be used to accomplish this task, but that would require allowing the needs of judges to give guidance to the Guidelines.

September 3, 2018 at 01:53 PM | Permalink

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