In praise of advisory guidelines

A few months ago, I received for possible publication in the Federal Sentencing Reporter a terrific article about advisory guidelines by Kim Hunt, executive director of the DC Sentencing Commission, and Michael Connelly, executive director of the Wisconsin Sentencing Commission.  At the time, we no longer had space in our final FSR Blakely issue, but I suggested to the authors that the piece could run in a subsequent issue. 

With Booker now making advisory guidelines a reality in the federal system, this article on "Advisory Guidelines in the Post-Blakely Era" could not possibly be more timely.  The authors have done a post-Booker update of the article, which is available for downloading below, and here is the opening paragraph:

With its rulings in Booker and Fanfan, the Supreme Court has redirected attention to the application of advisory sentencing guidelines.  Advisory guidelines, operating in ten states, are sentencing guidelines that do not require a judge to impose a recommended sentence, but may require the judge to provide justification for imposing a different sentence.  Although some commentators have questioned the efficacy of advisory systems in addressing sentencing disparity and predictability, this article will show that, properly constituted and overseen, these systems have produced results in many ways comparable to those of prescriptive sentencing  systems, which themselves have not always achieved or sustained the ambitious goals they have set.  The article concludes that, if done with an eye to the successes of states with advisory systems and the conditions necessary for those successes, the sentencing world of Booker and Fanfan can, in fact, accomplish the original objectives of the federal structured sentencing system.

In addition, the article ends with an important call for continued data-driven study and analysis of all sentencing systems:

It should be clear by this point that the authors view the paucity of reliable scientific evidence regarding the performance of all sentencing systems as a major obstacle to informed choice.  It is incumbent on all sentencing commissions, legislatures, and independent researchers to address this problem through joint efforts at data sharing, analysis, and performance monitoring.

Download fsr_advisory_guidelines_draft.doc