Equality Versus Discretion in Sentencing (From United States Sentencing Commission Reprint Series, V I, June 1992, P 211-236 - - See NCJ-140271)

• NCJ Number: 140277
• Author(s): I H Nagel; S Breyer; T MacCarthy
• Date Published: 1992
• Length: 26 pages
• Sale Source: US Sentencing Cmssn
• Publication Type: Legislation/Policy Description
• Language: English
• Country: United States of America
• Note: Reprinted from American Criminal Law Review 26(4):1813-1838 (1989).

Annotation

Two members of the U.S. Sentencing Commission discuss how the Federal sentencing guidelines aim at structuring sentencing uniformity by controlling discretion, and a defense attorney argues that the mechanical rules of the Federal sentencing guidelines and their suppression of judicial discretion undermine individualized sentencing based on complex sets of sentencing factors.

Abstract

The first panelist, a member of the U.S. Sentencing Commission, notes that the commission opted for a sentencing guidelines system somewhere between the continuation of unfettered judicial sentencing discretion and a system of excessive rigidity that would give only the appearance of equality. The system selected by the commission involves mandatory sentencing guidelines that are binding on the court but from which the court can depart for unusual, atypical, extraordinary cases. The first panelist outlines the 10 principles the commission used in drafting the guidelines. The second panelist, also a member of the U.S. Sentencing Commission, describes the two primary purposes of the sentencing guidelines and the seven primary steps for their implementation, followed by several questions and answers important for understanding the sentencing guidelines. One primary purpose of the guidelines is to ensure honesty in sentencing, which means that the sentence given by the court is the sentence served; parole is thus eliminated under the guidelines. The second major purpose of the guidelines is to achieve more uniform sentencing. The issues discussed are the source of the guidelines' offense levels, the overall impact of the guidelines on prison populations, the most difficult problem addressed by the guidelines (multiple counts), and the most difficult unsolved problem encountered by the guidelines (plea bargaining). The third panelist, a member of the criminal bar, opposes the sentencing guidelines because they do not take into account the two basic determinations of sentencing (whether or not to incarcerate and the sentence length); they are too complex; they take away judicial sentencing discretion from the judge and give it to the prosecutor; and they limit attempts to quantify the defendant's criminal history. Following the panelists' presentations, they discuss sentencing guidelines issues among themselves.