Sentencing Guidelines: Reflections on the Futrure

1 About This SeriesIt is by now a commonplace that the number of people under criminal justice supervision in this country has reached a record high. As a result, the Sentencing policies driving thatnumber, and the field of corrections, where the consequences are felt, have acquired anunprecedented salience. It is a salience definedmore by issues of magnitude, complexity, andexpense than by any consensus about futuredirections. Are Sentencing policies, as implemented throughcorrectional programs and practices, achievingtheir intended purposes? As expressed in themovement to eliminate indeterminate senten-cing and limit judicial discretion, on the onehand, and to radically restructure our retribu-tive system of justice, on the other, the purpos-es seem contradictory, rooted in conflictingvalues.

2 The lack of consensus on where sen-tencing and corrections should be headed isthus no surprise. Because Sentencing and corrections policieshave such major consequences for the allocation of government resources and, morefundamentally and profoundly, for the quality of justice in this country and the safety of its citizens the National Institute of Justice and theCorrections Program Office (CPO) of the Officeof Justice Programs felt it opportune to explorethem in depth. Through a series of ExecutiveSessions on Sentencing and Corrections, begunResearch in Department of JusticeOffice of Justice ProgramsNational Institute of JusticeJune 2001 Papers From the Executive Sessions on Sentencing and CorrectionsNo.

3 10 Sentencing Guidelines: Reflections on the Futureby Robin L. Lubitz and Thomas W. Department of JusticeOffice of Justice ProgramsNational Institute of s experiment with sentencingguidelines has now lasted more than aquarter of a century. Guidelines startedlocally and expanded to the State and Federallevels; evolved in numerous ways; adapted tochanging philosophical currents and politi-cal realities; and have been both praisedand vilified by politicians, criminal justicepractitioners, and academics. One theme haspersisted: Guidelines have proven to bemorethan a fad; they have left a lasting imprint onsentencing policy, practice, and thought in theUnited their name suggests, guidelines were con-ceived as a way to guide judicial discretion inaccomplishing particular Sentencing and cor-rectional objectives.

4 Generally, two criteria seriousness of the crime and criminal historyof the defendant are used to prescribe pun-ishment. By introducing more uniformity andconsistency into the Sentencing process, guide-lines also make it easier to predict sentencingoutcomes and correctional the elements they hold in common,guidelines vary widely. They reflect no singlephilosophy of Sentencing whether justdeserts or any other. They are simply a toolfor carrying out Sentencing policies, howevervaried those policies may be. The bipartisansupport that guidelines have attracted attests totheir neutrality. In some States, the impetusto adopt them was spearheaded primarily byRepublicans; elsewhere it was initiated prima-rily by Democrats.

5 In most States, guidelineseventually won the support of both politicalparties. The ideological neutrality of guidelinesconstitutes their strength and staying record of accomplishment of guidelinesis mixed. Most observers feel sentencingdisparity has been reduced but certainly noteliminated. In some States, guidelines havesuccessfully established truth in Sentencing ,and in some States they have been somewhatsuccessful in controlling prison populationgrowth. Success or failure can be judged,however, only in light of the goals a jurisdic-tion has set for its guidelines, and these toovary the question is whether the sentencingguidelines movement will grow stronger orThis project was cofunded by NIJ andthe Corrections Program as the millennium begins and in-evitably brings further changes in criminaljustice policy.

6 Several new issues have alreadyarisen, among them whether the core prin-ciples on which guidelines are based arecompatible with such recent concepts asrestorative justice. Another of these issuesis the get-tough crime policies adopted bymany States and incorporated into sentencingguidelines. In the long term, these policies,which include the release of large numbersof serious, violent offenders, will need to beaddressed. These issues are a challenge tothe adaptability that has been a hallmark ofguidelines over the n nGuidelines vary with Sentencing policyInitially, guidelines were established as a wayto address concerns about unfettered judi-cial discretion and lack of uniform and equaltreatment of similarly situated , they were championed as a way tohelp ensure predictability in Sentencing andthus to project the amount of correctionalresources needed.

7 (Accordingly, in manyStates a major benefit has been the develop-ment of computer-based population simula-tion models that project the amount of dollarsneeded to achieve the State s Sentencing policygoals.) In some States, this use of guidelinesled in turn to the realization that they couldbe used to shape Sentencing policy to fitresource levels that had already been of the predictive power of guidelines alsodovetailed neatly with efforts to achieve greatercertainty in Sentencing through truth in sen-tencing. Prison overcrowding caused guide-lines to evolve, in some jurisdictions , into atool for allocating andprioritizing scarceresources.

8 Thus, guide-lines were recognizedas a way to channelnon-prison-boundoffenders into anarray of intermediate and range widelyBy the end of 1999, 18 States had developedand implemented some form of goals included the following or various combinations of thefollowing:nReduce judicial disparity in more uniform and the amount of correctionalresources and allocate correctional punishments for certain categoriesof offenders and punishment for certain categoriesof offenders and truth in the Sentencing process more openand the use of particular sanctionsfor particular categories of increased use of nonincarcer-ation sanctions (intermediate and com-munity based).

9 NReduce prison a rational basis for judicial & Correctionsin 1998 and continuing through the year 2000,practitioners and scholars foremost in theirfield, representing a broad cross-section ofpoints of view, were brought together to findout if there is a better way to think about thepurposes, functions, and interdependence ofsentencing and corrections policies. We are fortunate in having secured the assistanceof Michael Tonry, Sonosky Professor of Law andPublic Policy at the University of Minnesota LawSchool, and Director, Institute of Criminology,University of Cambridge, as project director. One product of the sessions is this series ofpapers, commissioned by NIJ and the CPO asthe basis for the discussions.

10 Drawing on theresearch and experience of the session partici-pants, the papers are intended to distill theirjudgments about the strengths and weaknessesof current practices and about the most prom-ising ideas for future developments. The sessions were modeled on the executivesessions on policing held in the 1980s and1990s under the sponsorship of NIJ and Har-vard s Kennedy School of Government. Thosesessions played a role in conceptualizingcommunity policing and spreading it. Whetherthe current sessions and the papers based onthem will be instrumental in developing a newparadigm for Sentencing and corrections, oreven whether they will generate broad-basedsupport for a particular model or strategy forchange, remains to be seen.