Sentencing guidelines and sentencing policies

I’m still on the road, so I haven’t had a chance to read the controlling and dissenting opinions in the sentencing guideline cases.

If I understand the issues correctly, though, the majority held that a criminal sentence couldn’t depend on a finding of fact not made by a jury. That makes sense at first blush, but it seems to lead to a somewhat absurd result.

The Court held, in effect, that old-fashioned discretionary sentencing, under which the judge imposes a sentence between extremely wide limits set by the legislature (e.g., “not less than one year, nor more than twenty years”) is fine, but that guideline sentencing, under which the judge makes findings of fact and then, based on them, imposes a sentence between very narrow limits set by a sentencing commission, isn’t.

The role of the jury is no smaller under guidelines than under discretionary sentencing; what guideline sentencing really does is to move discretion from the judge to the prosecutor.

Proponents of guidelines were surely right to say that it was absurd to have equally culpable offenders do grossly discordant amounts of prison time based on the luck of the judicial draw. If it were really possible to institute guideline systems to reduce random horizontal inequity, that would have to count as progress. But given the virtually unchecked discretion among prosecutors over what cases to bring, what offenses to charge, and what “actual conduct” to put before the judge for sentencing purposes, it’s not at all clear that guidelines have done what they were intended to do.

From a crime-control perspective, as bad as judicial discretion was at the problem of picking out the minority of persistent high-rate serious offenders whom it’s actually worth while to put away for long periods of time from the mass of convicted offenders, there is no published evidence that the guidelines have been any better.

At the federal level, the biggest impact of the guidelines has been to require an absurd severity in drug trafficking cases. (The Sentencing Commission decided that the guideline sentences for drug offenses ought to be made to fit smoothly with the insanely high minimum mandatory sentences created by the Congress for specific amounts of various drugs.) But the state-level guidelines, which are much more important because the states have nine-tenths of the prisoners, have been much less problematic on that dimension.

The Court signally failed to answer the “What next?” question, and no one seems to know what’s going to happen now. Having the jury make all the findings of fact requisite to sentencing by guideline seems as it if it would be unspeakably cumbersome. Returning to unfettered judicial discretion looks like a step backward. But it’s not clear that there’s a third option.

What ought to happen? As between guidelines and discretionary sentencing, I’m not sure it matters much. What I’d like to see is somewhat reduced severity overall: increasing incarceration from its trough around 1976 was a sensible response to the Great Crime Wave of the previous decade, but quadrupling incarceration to the point where we now have 2 million people behind bars at any given time took us well past the point of diminishing returns. Whether going back to discretion would contribute to reducing severity isn’t clear to me.

The state and federal budget crunches, combined with the reduced salience of crime as a political issue in the wake of the crime decrease of the 1990s, may pull the system toward lessened severity, especially if it can be achieved without forcing legislators to vote for shorter sentences. Money isn’t the best reason to shrink our prison population — in my view, it’s not worth imposing the suffering unless it’s easily worth the $25,000 per year it costs to keep someone behind bars — but budgetary cost may be the most potent force politically for getting incarceration back in proportion.