Discretionary v. formulaic sentencing

Do sentencing guidelines and other checks on judicial sentencing discretion really improve uniformity, or do they merely shift discretion to the prosecutors?

A fellow academic analyst of criminal justice policy academic world asks an interesting question, one that goes to the heart of the heated debates about mandatory sentences and sentencing guidelines:

In general, how much discretion do you think judges should be given in sentencing drug offenders? In principle, discretion allows judges to tailor sentences to individual circumstances with much greater subtlety than a formula could, but there are a lot of bad judges, and I assume that discretion tends to make sentencing more arbitrary by increasing inconsistency across judges.

Prosecutor friends have also noted that relatively rigid formulas tend to increase their negotiating leverage.

My sense is that I’d pick good formula sentencing over judicial discretion but judicial discretion over a bad formula.

What do you think?

My response:

If it were a choice between discretionary and formulaic sentencing, I tend to agree that a good formula, or even a mediocre formula, would be better than leaving it to the lottery of which judge is assigned to a case. I’d want sentencing guidelines rather than mandatory sentences, to avoid egregious injustices.

But there’s a serious problem in the way offenses are defined. As long as the laws of conspiracy and aiding & abetting make the driver who drives someone to a dope deal equally guilty with the dealer, no formula will get the right result.

However, I think the question may be mis-stated. In practical terms, as your prosecutor friends note, sentencing formulas don’t really replace discretion with uniformity; they replace the discretion of judges with the discretion of prosecutors, who can decide what crime to charge and what facts to allege at sentencing. Is that really an improvement?

Given the very long sentences imposed under the drug laws (among others), formula sentencing plus prosecutorial discretion gives prosecutors extraordinary powers to extort guilty pleas and testimony against co-defendants, not all of it accurate. Many of the defendants in the Tulia cases pleaded guilty, even though we now know they were completely innocent.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com