How many states have sentencing guidelines

And within the guidelines ranges or by departure, judges in most systems may still examine particular case facts and consider all of the traditional purposes of punishment. Thus, judicial discretion is retained, but within narrower limits defined by current offense seriousness and prior record. In these systems, current offense and prior record thus determine not only the decision to impose prison but also, to a large extent, the time to be served.

More rational sentencing policy. This goal has two facets. Second, the commission, like other administrative agencies, is directed to collect data and develop expertise which will contribute to more informed, evidence-based sentencing policy. Better management of correctional resources. Because sentencing under guidelines is more uniform and predictable than indeterminate sentencing, and guidelines commissions can collect data on past and current sentences imposed, the implementation of guidelines has allowed states to forecast the impact that particular recommended sentences will have on future inmate and supervision populations.

During the first decade of guidelines sentencing, prison populations rose steadily, but only in proportion to rising felony caseloads. Prior to sentencing guidelines, judges often faced a binary choice: send the offender to prison, or place him on probation with few conditions other than to remain law abiding.

And since most offenders, with or without guidelines, will not be sent to prison initially, but could be sent later if they violate probation terms, judges need guidance in the setting and enforcement of probation conditions.

Decisions about the imposition and enforcement of intermediate sanctions are inherently more dependent on case-specific factors, and thus they are not as easily regulated as are decisions about imposition and duration of prison terms. Even though they cost less than prison, and can help to avoid unnecessary incarceration, in the short term it is all too easy for local judges and prosecutors to simply ship the offender off to state prison rather than try to manage the offender in community-based programs that are under-funded and usually paid for by the city or county.

As noted above, a major critique of indeterminate sentencing is that broad parole-release discretion produces great uncertainty about how long an offender will remain in prison. In the s this concern resurfaced with a focus on the expectations of crime victims and their families.

The reality in most parole-retention jurisdictions was that offenders were usually released not long after their date of first eligibility for release; for example, an offender might be sentenced to ten years in prison and released after one or two years.

Truth in sentencing goals may also encourage some states to consider adopting guidelines for judges. As noted above, in many parole-retention states prisoners serve a very low proportion of their sentences sometimes less than twenty percent. If such a state wishes to substantially raise that percent without incurring massive increases in prison populations, judges will have to be persuaded to lower their sentence lengths, and guidelines are the best way to do that.

Sentencing Reporter 69 ; id. Reitz, The Disassembly and Reassembly of U. Frase, eds, , at Frase, Punishment Purposes, 58 Stanf. Roberts and Andrew von Hirsch, eds. Sentencing Guidelines Commission, Report to the Legislature 9 In addition to mandatory minimum laws, Congress and several states passed legislation that created sentencing commissions and charged them with establishing sentencing guidelines.

Congress and some states also passed "three-strikes" provisions, which usually required a life sentence after the third strike i. Many of the current sentencing alternatives to indeterminate sentencing are variations of determinate sentencing. There are usually explicit standards specifying the amount of punishment and a set release date that is not subject to review by an administrative body i. Under determinate sentencing, however, time served can be reduced by good time or earned time.

Both indeterminate and determinate sentencing practices have been criticized by many who believe that such practices lead to abuse by criminal justice officials and unwarranted disparities in sentences. Critics of both penal policies contend that such sentences give way to a nonuniform application of sentences across jurisdictions.

With respect to determinate sentences, for example, judges sentence offenders to a fixed period based on statute, which some contend does not take into consideration individual offender characteristics. Moreover, they argue that determinate sentences essentially move discretion away from the judge to the charging attorney.

In , Congress passed legislation that led to the creation of federal sentencing guidelines. The act created the United States Sentencing Commission, an independent body within the judicial branch of the federal government and charged it with promulgating guidelines for federal sentencing. The purpose of the Commission was to examine unwarranted disparity in federal sentencing policy, among other things. In summary, the Sentencing Reform Act reformed the federal sentencing system in the following ways:.

In a series of cases, the U. Supreme Court has held that given the Sixth Amendment right to trial by jury, judges cannot impose sentences beyond the prescribed statutory maximum unless the facts supporting such an increase are found by a jury beyond a reasonable doubt.

New Jersey Apprendi , 24 the Court struck down New Jersey's hate crime law, which allowed a judge to increase a sentence to double the statutory maximum if he or she found, by a preponderance of the evidence, that the defendant acted with a purpose to intimidate an individual or group of individuals because of race. In reversing the lower court's decision, the Court declared that the jury trial and notification clauses of the Sixth Amendment and Due Process Clauses of the Fifth and Fourteenth Amendments embody a principle that insists that, except in the case of recidivists, 25 a judge could not on his own findings sentence a criminal defendant to a term of imprisonment greater than the statutory maximum assigned for the crime for which he had been convicted by the jury.

In Blakely v. Washington Blakely , 27 the Court held that Washington State's sentencing guidelines violated the Sixth Amendment's guarantee of a trial by jury in criminal cases. Washington State guidelines allowed judges, rather than juries, to make certain findings of fact that increased an offender's sentence. The Court found that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.

In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional facts. The courts were divided sharply on this issue. The Court spoke to the application of Blakely to the federal sentencing guidelines in United States v. Booker Booker. In Booker , the Supreme Court consolidated two lower court cases and considered them in tandem, United States v.

Fanfan 31 and United States v. He later gave a written statement to the police in which he admitted selling an additional grams of crack cocaine.

Narcotic agents arrested Fanfan when they discovered 1. At sentencing, the court determined that Fanfan was the "ring leader of a significant drug conspiracy," which, combined with his criminal history, resulted in a sentence of to months under the Guidelines. However, four days before the June 28, , sentencing hearing, the Supreme Court decided Blakely v.

Washington , 40 holding that as part of a state sentencing guideline system, a Washington state judge could not find an aggravating fact authorizing a higher sentence than the state statutes otherwise permitted. The sentencing judge in Fanfan considered the effect that Blakely may have on the federal sentencing Guidelines and recalculated the Guidelines based only on the possession of grams and imposed the 78 month maximum for that range.

The Court unanimously agreed that discretionary sentencing guidelines would not implicate a defendant's Sixth Amendment right.

This violation occurs when a judge makes certain factual findings supported by a preponderance of the evidence 43 to enhance a sentence beyond the range otherwise authorized by the jury's verdict or the defendant's admissions. In rejecting the government's arguments against Blakely's applicability to the federal sentencing guidelines guidelines , the Court found the fact that the guidelines were developed by the United States Sentencing Commission rather than by Congress was constitutionally insignificant.

United States. In the first opinion, the Court sought to restore the jury's significance in its finding of the underlying crime. To reach this conclusion, the majority evaluated the likely effect of the constitutional requirement on the SRA's language, history and basic purpose.

In other words, the Court answered the question of what "Congress would have intended" in light of the Court's constitutional holding. The Supreme Court based its decision to delete the mandatory requirement of the guidelines on the supposition that, given the choice, Congress would not have enacted a mandatory system modified to accommodate Blakely.

The Breyer majority opined that Congress would have preferred "the total invalidation of the Act to an Act with the Court's Sixth Amendment requirement engrafted onto it. The Court called upon Congress to decide whether its declaration of judicial discretion merits legislative action. In Booker's aftermath, questions remain regarding the decision's retroactivity.

It appears that the Booker Court did not intend that every case on appeal be remanded for resentencing. Summerlin , 58 may provide guidance on the point. Generally, the question of retroactivity turns on whether the Court announced a new rule and whether the new rule is substantive in which case it may apply retroactively or procedural in which case it would not apply retroactively unless it qualified as "watershed".

Arizona holding that "any increase in a defendant's authorized punishment contingent on the finding of a fact, including eligibility for the death penalty must be found by a jury beyond a reasonable doubt" 60 cannot be treated as a new substantive rule, a rule that "alters the range of conduct or the class of persons that the law punishes.

In McReynolds v. United States, 62 a lower court found that Booker , like Apprendi and Ring , must be treated as a procedural decision for purposes of retroactivity analysis. Due to the severance of 18 U. However, they must consult and consider the guidelines when sentencing. In addition, the Court preserved a right to appeal. Some may contend that this lack of definition for "unreasonableness" may signal a return to pre-guideline sentencing disparities. For example, Justice Scalia noted in his dissent from the opinion's second holding, "what I anticipate will happen is that 'unreasonableness' review will produce a discordant symphony of different standards, varying from court to court and judge to judge.

As such, this majority feels that it is fair to assume that appellate judges will prove capable of handling the task. However, subsequent to the Booker decision, circuits have been split as to the use of a presumption of reasonableness for within-guidelines sentences.

In Rita v. United States , 67 the Court provided some guidance on how appellate courts should undertake the "reasonableness" review of a lower court's sentencing decision. Rita was convicted of perjury, making false statements, and obstructing justice. A pre-sentencing report calculated the applicable guideline range of months.

After hearing sentencing arguments from both sides, the judge imposed a sentence of 33 months. On appeal, the defendant argued that his month sentence was "unreasonable" because 1 it did not adequately take into account "the defendant's history and characteristics," and 2 it "is greater than necessary to comply with the purposes of the sentencing set forth in 18 U.

As such, the court rejected Mr. Rita's arguments and upheld the sentence. The issue before the Supreme Court was whether a presumption of reasonableness should apply to a sentence within the Federal Sentencing Guidelines.

Justice Breyer, writing for the Court, 68 held that an appellate court may view the Guideline range as presumptively reasonable, although the presumption is non-binding.

See Rule 32 f. Thus, the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure. However, the Court also stressed the importance of providing reasons for the sentencing decision. While the guidelines can be considered reasonable as a starting point for appellate review, the plurality cautions that this should not be interpreted to be obligatory. In the aftermath of this decision, it appears that, while it is permissible for appellate courts to apply a non-binding presumption of reasonableness to within-guidelines sentences, questions linger as to what factors the appellate courts may or should consider to overcome the presumption.

Moreover, given that the Court apparently approved only one method of reviewing sentences, questions remain as to other methods the Court might approve and whether the acceptable methods of appellate review apply in other instances where sentences are not within guideline range.

In Gall v. United States 79 and Kimbrough v. United States , 80 the Court provided additional clarification to both sentencing and appellate courts as to crafting and reviewing sentences in a post- Booker regime. In Gall , the Court ruled that judges may deviate from the guidelines without having to demonstrate that "extraordinary circumstances" required sentencing outside the guidelines. In a decision, the Court disagreed and held that the acceptable method of appellate review for all sentences, whether inside, just outside, or significantly outside the guidelines range, was a deferential abuse-of-discretion standard.

Justice Stevens writing for the majority rejected a presumption of unreasonableness for sentences outside the guidelines range. Similarly, In Kimbrough v. United States , 91 another decision, the Court held that a sentence outside the guidelines range is not per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powered cocaine offenses.

The applicable guidelines range was 19 to As in Gall , the Court noted that the district court followed appropriate procedure by properly calculating and considering the guidelines range. The Court noted that the district court "homed in on the particular circumstances of Kimbrough's case and accorded weight to the U. Taken together, these cases arguably provide federal district court judges some discretion in crafting reasonable sentences, regardless of whether the sentence falls within or outside the guidelines range.

United States , the Court clarified its Kimbrough ruling by holding that district court judges "are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines. In addition, it should be noted that this flexibility does not eliminate the mandatory minimums established by statute under federal law. Sentencing guidelines can be presumptive, statutory, advisory or voluntary. The most notable of these are the presumptive sentencing guidelines, which had been in place at the federal level at the time of the Supreme Court's ruling in Booker.

Prior to the Court's ruling in Booker , the federal sentencing guidelines were characterized as being presumptive, rather than statutory, advisory or voluntary. Presumptive sentencing guidelines are contained in or based on legislation, which are adopted by a legislatively created body, usually a sentencing commission.

Presumptive sentencing guidelines set a range of penalties for an offense that is based on the seriousness of the offense and the defendant's criminal history. While judges were required to adhere to the guidelines, they could depart from them. Departures under presumptive sentencing guidelines, however, are subject to appellate review.

Statutory sentencing guidelines are created by a legislative body. Statutory sentencing guidelines are sometimes confused with presumptive sentencing guidelines. While both types of guidelines are ultimately authorized by a legislative body, statutory sentencing guidelines are directly authorized by a legislative body, while presumptive sentencing guidelines are established by a sentencing commission that is usually legislatively created. Under an advisory or voluntary sentencing guideline scheme, judges are not required to follow the sentences set forth in the guidelines but can use them as a reference.

As previously discussed, the Booker ruling made the federal sentencing guidelines advisory. Unlike the federal system pre- Booker , states that have adopted presumptive sentencing guidelines generally do not have enhancement factors built into the guidelines' structure. Departures from the sentencing guidelines in the federal system can take three forms: substantial assistance departures, other downward departures and upward departures.

Substantial assistance departures are a form of downward departures and occur when a defendant provides substantial assistance to the prosecution.

Of the three types of departures, upward departures are used least often and substantial assistance departures are used most often.

While departures are available for judges, the guidelines explicitly prescribe when a judge can depart from the guidelines. As the Supreme Court asserted in the Booker ruling, " In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. Prior to the Booker decision, Congress weighed in on the issue of downward departures in the th Congress when an amendment to the PROTECT Act was passed that restricted the grounds upon which a federal judge could apply a downward departures.

As Figure 1 shows, the majority of pre-Booker departures were downward departures. The majority of the downward departures occurred due to the defendant providing substantial assistance to the prosecution or the judge finding mitigating factors, which in both cases would necessitate a downward departure. In , federal judges departed from the sentencing guidelines These figures have remained relatively constant for the years preceding Figure 2 depicts a similar picture as in Figure 1 with respect to the majority of sentences falling within the guideline range.

However, there were some variances. In order to fully understand the changes in federal judicial sentencing practices post- Booker , one would need to take a more nuance examination of the data at the district and circuit court level.

In both years examined, the data revealed that the vast majority of departures were downward departures. While proponents view downward departures as necessary in a structured system because their use allows judges to individualize sentences, critics argue that the frequent use of downward departures is a mechanism for judges to circumvent the limits imposed on them through the sentencing guidelines.

Moreover, such critics argue that departures should be eliminated because they produce unwarranted disparity. Unlike the structure that exists with the prescribed sentencing ranges in the guidelines, departures provide an opportunity for judges to sentence outside that range. Critics contend that permitting a judge to sentence outside the specified range could be problematic because judges could potentially increase or decrease a defendant's sentence substantially, depending on the circumstances.

Departures, however, are not always viewed as a negative tool. Some view departures as a mechanism for judges to tailor a sentence that reflects the totality of circumstances regarding an offender and the offense. In light of the Court's ruling in Booker and its subsequent rulings in Gall and Kimrough , the issue for Congress is whether to amend current law to require federal judges to follow guided sentences, or continue to permit federal judges to use their discretion in sentencing, under certain circumstances.

Following is a discussion and analysis of several selected options Congress could consider. One option Congress may wish to consider could be to maintain the sentencing guidelines by specifying mandatory minimum sentences and increasing the top of each guideline range to a statutory maximum for specified offenses hence, codify specified sentencing ranges that are in the guidelines.

In essence, this option would require any upward departures to coincide with the statutory maximum for the offense in question, in which case a statutory maximum would have to be specified. This option was first presented to the U. Sentencing Commission shortly after the U.

Supreme Court decision in Blakely by Frank Bowman, who concluded with respect to such an option:. The practical effect of such an amendment would be to preserve current federal practice almost unchanged. Guidelines factors would not be elements. They could still constitutionally be determined by post-conviction judicial findings of fact The only theoretical difference would be that judges could sentence defendants above the top of the current guideline ranges without the formality of an upward departure Congress could consider a measure that has been implemented in Kansas.

Kansas had presumptive sentencing guidelines that were invalidated by the state's supreme court. The jury would have to find that the enhanced factors exist beyond a reasonable doubt in order for the enhanced sentence to be applicable. While this option may satisfy constitutional questions, it may prove to be an expensive and time-consuming. Congress may also allow federal judges to exercise their discretion in sentencing in cases where Congress has not specified a mandatory term of sentence.

This option could possibly mirror the indeterminate sentencing scheme that was in place prior to the sentencing reform effort in While such an option would allow judges to individualize sentences to the extent that Congress has not established a mandatory sentence for the offense, it could also result in a lack of uniformity due to judges applying different sentences across jurisdictions. According to the ruling, a provision in current law makes the guidelines binding on all judges.

The provision, 18 U. While the Court struck down a provision that made the federal sentencing guidelines mandatory, the Court also noted that current law " The Court also struck down a provision that permitted appellate review of sentences that were imposed as a result of a judge's departure from the guidelines.

The Court noted, however, that current law " See 18 U. Parole is the conditional, supervised release of a prisoner prior to the expiration of his term of imprisonment. That document was refined during the following 10 years, and in the Institute published a "Proposed Official Draft" of a Model Penal Code.

The Brown Commission's report was transmitted to Congress and the President in in the form of a "work basis," from which S. See U. See for example, Marvin E. The Commission was also mandated to examine the effects of sentencing policy upon prison resources e. Mandatory minimum sentencing laws are separate from the federal sentencing guidelines.

Over the years, Congress has directed the U. Sentencing Commission to integrate mandatory minimum penalties it has passed into the federal sentencing guidelines. Examples of federal mandatory minimum sentencing laws include the and Anti-Drug Abuse Acts P. In addition to mandatory minimum penalties for certain drug violations, Congress has passed mandatory minimum penalties for certain gun violations and sex offenses. The guidelines were also subjected to congressional directives and mandatory minimum penalties for specific offenses set by Congress.

See 28 U. See Ring v. Arizona , U. A recidivist is an ex-offender who has either committed a new crime or has violated the terms of his or her probation or parole. In Oregon v. Ice , the Court held that the Sixth Amendment does not prohibit judges from imposing consecutive sentences based on facts not found by a jury. The Court declined to establish a broad bright-line rule that guarantees the Sixth Amendment right to a jury trial for all aspects of sentencing.

Instead, the Court limited Apprendi and its progeny to sentencing for single crimes. See, U nited States v. June 28, holding that for purposes of constitutional analysis the federal sentencing guidelines were indistinguishable from those in Blakely ; Compare, U.

Koch , F. Pineiro , F. Reese , F. Ameline , F. Booker at stating that "everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the Sentencing Reform Act of SRA the provisions that make the Guidelines binding on district judges