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April 30, 2024
"A World Without Federal Sentencing Guidelines"
The title of this post is the title of this notable new article authored by Sam Merchant and now available via SSRN. Here is its abstract:
Most participants and observers of the criminal-justice system perceive the Federal Sentencing Guidelines as excessively harsh. A foundational question has persisted since the creation of the Guidelines: is a guideline-based regime actually preferable, or should we embrace complete judicial discretion in sentencing? For decades, analysts have resorted to hypothetical cases to explore this issue. But a little-known world exists in which real federal sentences are imposed without any reference to sentencing guidelines: U.S. Sentencing Guideline §2X5.1. This Article is the first to compare actual sentences imposed with and without guidelines for the same offenses and same types of offenders.
The analysis reveals that judges tend to impose harsher sentences in the world without sentencing guidelines. Variability is also more pronounced in sentences without guidelines: after a conviction for child endangerment, some parents received two years in prison and others received fifteen (even after adjusting for severity). Two Black men convicted of a fourth and fifth non-accident DUI received ten years in prison while other offenders received probation (the median sentence is around twelve months’ imprisonment). Recent Supreme Court cases affecting tribal jurisdiction, and the January 6, 2021, “Capitol Breach” cases, have led to an explosion in the number of these cases in many districts.
This Article argues that sentencing within a guideline framework, or within a data-based framework when guidelines are inapplicable, provides more certainty and minimizes unwarranted disparities. The conclusions offer critical insights to states or other systems that do not currently have sentencing guidelines or do not meaningfully collect sentencing data. Finally, this Article offers recommendations to courts, the United States Probation Office, and the Sentencing Commission to help advance a more just and efficient sentencing system.
April 30, 2024 at 03:48 PM | Permalink
Comments
https://redstate.com/streiff/2024/04/30/arizona-rancher-will-not-face-retrial-on-murder-of-illegal-immigrant-n2173570
Might be interesting to readers.
Posted by: federalist | Apr 30, 2024 8:17:46 PM
The ultimate issue is how wide of a range of punishment do we want?
Opponents of guidelines/mandatory minimums tend to have little problem with capping the top of the range to avoid excessively harsh sentences, but do not seem to have a big problem with excessively lenient sentences.
There will always be exceptional cases that can be used to justify a higher maximum or a lower minimum. I can see a credible argument that a serial rapist who tortures (but does not kill) his victim deserves the death penalty. But is that offender such an outlier that we should not consider him in determining the range of punishment for rape? Likewise, you can imagine a young accomplice with no criminal history who had only the smallest imaginable role in a murder (e.g., giving a friend who wants to commit robbery a gun to use). Would we want to lower the minimum sentence for felony murder to account for the possibility of such an offender?
I am comfortable having a sentencing range that is appropriate for 99% of the cases. If the potential sentence seems to harsh, we can always find a lesser charge. And I can live with an imperfect world in which there is not a charge that has a harsh enough sentence to be appropriate. Taking the serial rapist noted above, I might not be able to get a death sentence, but I can stack him with enough consecutive sentences that he will not ever get released.
Posted by: tmm | May 1, 2024 11:12:23 AM
I look forward to reading. Personally, I would be very hesitant to draw any conclusion from federal tribal cases to other offenses.
Posted by: whatever | May 1, 2024 2:14:45 PM
I think advisory guidelines, along the lines of what we have today, are likely less bad than the alternatives. The guidelines are attempting to be fair, and to give judges a starting point of what is likely to be seen as about right for this offense or that. But the guidelines obviously can't encompass all of the complexity we see in the real world. Therefore, having them be advisory, rather than mandatory, is also a good call.
Lastly, the systematic nature of the approach allows room for research, data, and opinion to lead to changes such as the recent one-level reduction for a lot of cases where the defendant has no criminal history. Or, in the other direction, the less-recent increase in the severity of terrorism enhancements. Both were probably good changes. And in the absence of guidelines, neither would have been possible.
Posted by: William Jockusch | May 2, 2024 4:06:24 PM
there are a few extremely harsh judges in oklahoma, who are clearly out of step with the judiciary as a whole, but are probably restrained by the guidelines. the presence of these outlier judges, i suspect, also raises sentences in the district as a whole because they are pretty small districts, and they re-set the normal sentence at a higher level. i would be cautious about drawing conclusions from this sample.
Posted by: random afpd | May 6, 2024 11:40:47 AM
