Presumptive Sentencing Guidelines
In the 1980s, state legislatures and Congress, responding to criticism that wide judicial discretion resulted in great sentence disparities, adopted sentencing guidelines drafted by legislatively-established commissions (for example, the Pennsylvania Commission on Sentencing.) These commissions proposed sentencing formulas based on a variety of factors, but the two most important factors in any sentencing guideline scheme are (1) the nature of the offense, and (2) the offenders’ criminal history. As the guidelines model gained in popularity roughly 40 years ago, some states enacted advisory sentencing guidelines that gave suggestions to judges statewide of what was considered an appropriate sentence, and which should be followed in most cases. By contrast, some states enacted mandatory sentencing guidelines that required judges to impose presumptive sentences – the length or type of sentence that was presumed appropriate, unless mitigating factors or aggravating factors were identified on the record (more below).
Sentencing guidelines generally differentiate between presumptive prison sentences and presumptive probation sentences. Judges who depart from presumptive sentencing guideline may do so in two ways. On the one hand, they may select a wholly different type of sentence in a dispositional departure, imposing prison when probation was the presumptive sentence (or probation when prison was the presumptive sentence). Judges may also do a durational departure, in which they sentence the offender to a term length different than the presumptive term length (for example, giving an 18-month sentence, rather than the 26-month presumptive sentence).
Guideline sentencing allows for judicial discretion, while limiting such discretion at the same time. Judges must generally make findings when sentencing the offender to a term of incarceration that is different from the presumptive sentence. Specifically, the judge must indicate which aggravating factors (factors indicating the offender or offense is worse than other similar offenders or offenses) or mitigating factors (factors indicating the offender or offense is less serious than other similar offenders or offenses). The Sentencing Reform Act of 1984 (18 U.S. C.A. §§ 3551 et. seq. 28 U.S.C.A. §§991-998) first established federal sentencing guidelines. The Act applied to all crimes committed after November 1, 1987, and its purpose was “to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes.” This law simultaneously created the United States Sentencing Guideline Commission, giving it the authority to create the guidelines. In its issued guidelines, the Commission dramatically reduced the discretion of federal judges. Not only did the federal Sentencing Guidelines establish much narrower sentencing ranges, but they also required judges who departed from the ranges state in writing their reason for doing so. In fact, the Sentencing Reform Act also established an appellate review of federal sentences, while abolishing the U.S. Parole Commission.
Most states have adopted some version of sentencing guidelines, from the very simple to the very complex, with many states restricting their guidelines to felonies. Although limiting judicial discretion, state sentencing guidelines all allow some wiggle room if the judge finds that an individual case differs from the “run of the mill.” At the same time, many sentencing guidelines have come under legal attack, with the U.S. Supreme Court invalidating or requiring modifications to many state – and the federal – guidelines in 2005. Specifically, the Court decided that sentencing guidelines that do not require a jury to make findings of aggravating factors (which in turn suggest a harshest sentence) violate the defendant’s right to a jury trial (See, Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Booker-United States v. Fanfan, 543 U.S. 220 (2005); Blakeley v. Washington, 542 U.S. 296 (2004)).
While sentencing guidelines remain widely used, in combination with determinate sentencing, they have hardly proven to be a “silver bullet” for sentencing reform. “There is still considerable uncertainty about the efficacy of sentencing guidelines. There is evidence that they have reduced sentencing disparities but they clearly have not eliminated this problem altogether. There is also concern that sentencing guidelines have promoted higher incarceration rates and have thus contributed to the problem of prison overcrowding. It is fair to say that to be successful, sentencing guidelines must be accompanied by policies designed to effectively manage prison populations.” 
The U.S. Sentencing Guidelines: A User Manual
As noted above, federal sentencing ranges are calculated by judges using two “variables”: the seriousness of the offense, and the offender’s criminal history. While the latter may be defined at six levels – from no prior arrests to serious criminal records, there are 43 levels (!) of offense seriousness.
Yet sentencing is not as easy as simply plotting the intersection of these two coordinates – judges must also consider whether “specific offense characteristics” change the “base level” of the offense, while additionally making “adjustments” that may increase or decrease the final offense seriousness.
Still want to be a judge? Learn more about the different offense levels, characteristics and adjustments here.
- Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 683). Belmont, CA: Cengage. ↵