Just Sentencing # 4: Existing sentencing structures – Which are the best?

Richard Frase, guest-blogging on Just Sentencing: Principles and Procedures for a Workable System (Oxford 2012):

In my last two guest-blog posts I discussed existing sentencing theories, the need for a new (or restated) hybrid model (here), and the punishment principles embodied in my book’s sentencing reform model (here).  In this post I’ll examine existing sentencing structures and the need for a new model that builds on the best of them; the next post will summarize the specific procedural features of my proposed model.

Today American sentencing is fragmented; state and federal systems have adopted widely divergent structural models.  About half of the states retain traditional indeterminate sentencing systems emphasizing judicial and parole discretion; the remaining states and the federal system have shifted to some form of sentencing guidelines (with or without parole discretion) or a statutory determinate (“presumptive”) sentencing regime.  In addition, every American sentencing system, determinate or indeterminate, has at least some hyper-determinate, mandatory-sentence laws.

Guidelines and statutory determinate systems vary widely, and this diversity of approaches gives legislators a variety of options.  I argue, based on decades of experience in multiple jurisdictions, that the best option is the kind of presumptive guidelines system adopted in Minnesota and several other states.  This structural model has proven workable in practice, and has been endorsed by the American Bar Association and in the American Law Institute’s revised Model Penal Code sentencing provisions.  Presumptive guidelines also provide the best vehicle for implementing the limiting-retributive and other principles identified in my previous post (#3).  In the remainder of this post I will survey the major current types of sentencing structure in the U.S., and the advantages and disadvantages of each.

Indeterminate sentencing regimes.  In these systems, unless a mandatory-sentence law applies judges have discretion to sentence within a broad range – from unsupervised probation with minimal conditions, to an executed prison term of the statutory-maximum duration.  For offenders sent to prison, the parole board likewise has discretion to determine how much of the imposed prison term the offender will actually have to serve.  These broad discretionary powers have been justified by a belief that the primary purposes of sentencing are rehabilitation and protection of the public from higher-risk offenders.  But in the 1970s this model began to fall out of favor, for three reasons: (1) such offender-based sentencing ignores competing sentencing goals that require greater uniformity and proportionality to the offender’s crime (retribution, general deterrence, expressive goals); (2) it seems doubtful that highly-individualized assessments of offender risk, treatment needs, and treatment progress can be made accurately and consistently, particularly when based on in-prison behavior; and (3) such unfettered judicial and parole discretion is inconsistent with the rule of law — indeed, is there any other domain in which American officials make decisions of such immense consequence with so little guidance or restraint?  Other defects of indeterminate sentencing include: the difficulty of accurately predicting resource needs and setting front-end priorities in the use of prison resources; the dramatic differences between prison terms imposed and the much shorter terms actually served by most offenders; and the effective dominance of sentencing by administrative officials rather than judges.

Mandatory-sentence laws.  These laws go too far in the other direction, eliminating any discretion to mitigate punishment.  If fully enforced, such laws guarantee that some and perhaps many offenders subject to the law will receive punishment in excess of their desert, and/or in excess of what is needed and cost-effective to achieve adequate crime control.  Studies have repeatedly shown, however, that these laws are not fully enforced; often they serve primarily to coerce offenders to plead guilty in return for dismissal of the mandatory-penalty charge.  But the result is to turn effective sentencing power over to case-level prosecutors (while also burdening constitutionally-protected trial rights and excessively punishing the few offenders who go to trial).   If unjustified leniency by judges and parole boards is deemed to be a problem (despite the fact that most of these officials are elected or politically appointed), the answer is to apply legally-binding sentencing guidelines, requiring reasons for mitigated sentences and giving prosecutors the power to appeal.   Such presumptive-sentence laws avoid the injustices of mandatory-sentence laws, and strike a much better balance between rule and discretion, and between judicial, executive, and legislative power.

Statutory presumptive sentencing systems.  In the late 1970s California and several other states adopted a form of statutory guidelines, narrowing judicial discretion and, in most of these states, replacing broad parole-release discretion with good-time credits and a fixed period of post-prison supervision.  A half dozen states still have such systems in place.  But the fact that no new system of this type has been adopted for several decades casts considerable doubt on the viability of this reform option.  One of its most important defects is the lack of a sentencing commission to perform the functions further discussed below.

Advisory guidelines.  About a dozen states have advisory sentencing guidelines developed and monitored by a permanent sentencing commission. This approach has several advantages over purely statutory guidelines (or a system like that in the several states which disbanded their commissions but kept their guidelines in effect).  Like other specialized administrative agencies, such a commission can conduct research, develop and apply expertise, and take a comprehensive (all crimes), long-term, evidence-based view of complex sentencing issues.  It is easier to address such issues with a degree of insulation from short-term political pressures, although the legislature of course retains ultimate override authority.  But because advisory guidelines are not even presumptively binding, substantial sentencing disparities are likely to persist, and it remains difficult to accurately predict resource needs, set system-wide priorities, and control prison overcrowding.  These problems are made worse in the several states that retain parole release discretion.  In addition, the absence of even modest appellate review prevents courts from clarifying and developing sentencing law through the common law process.

Presumptive (legally binding) guidelines.  Five states — Minnesota, Washington, Oregon, Kansas, and North Carolina — have, for periods of 18 to 32 years, employed presumptive, parole-abolition sentencing guidelines systems that avoid the problems addressed above.  Prior to Booker, presumptive guidelines were also found in the federal system.  But as explained in my book, that system was not nearly as well designed; the current advisory regime is better (but also better than an indeterminate system).

That’s all for now.  My next post (#5) will show how key features found in these five state guidelines systems, along with a few new or improved procedures, are incorporated in my book’s proposed model.

Prior posts in series so far:

• Overview
• Existing sentencing theories are inadequate
• A restated and expanded limiting retributive model