6.4. Presumptive Sentencing Guidelines
Lore Rutz-Burri and Kate McLean
Presumptive Sentencing Guidelines
In the 1980s, state legislatures and Congress, responding to criticism that wide judicial discretion resulted in great sentence disparities, adopted sentencing guidelines drafted by legislatively-established commissions (for example, the Pennsylvania Commission on Sentencing.) These commissions proposed sentencing formulas based on a variety of factors, but the two most important factors in any sentencing guideline scheme are (1) the nature of the offense, and (2) the offenders’ criminal history. As the guidelines model gained in popularity roughly 40 years ago, some states enacted advisory sentencing guidelines that gave suggestions to judges statewide of what was considered an appropriate sentence, and which should be followed in most cases. By contrast, some states enacted mandatory sentencing guidelines that required judges to impose presumptive sentences – the length or type of sentence that was presumed appropriate, unless mitigating factors or aggravating factors were identified on the record (more below).
Sentencing guidelines generally differentiate between presumptive prison sentences and presumptive probation sentences. Judges who depart from presumptive sentencing guideline may do so in two ways. On the one hand, they may select a wholly different type of sentence in a dispositional departure, imposing prison when probation was the presumptive sentence (or probation when prison was the presumptive sentence). Judges may also do a durational departure, in which they sentence the offender to a term length different than the presumptive term length (for example, giving an 18-month sentence, rather than the 26-month presumptive sentence).
Guideline sentencing allows for judicial discretion, while limiting such discretion at the same time. Judges must generally make findings when sentencing the offender to a term of incarceration that is different from the presumptive sentence. Specifically, the judge must indicate which aggravating factors (factors indicating the offender or offense is worse than other similar offenders or offenses) or mitigating factors (factors indicating the offender or offense is less serious than other similar offenders or offenses). The Sentencing Reform Act of 1984 (18 U.S. C.A. §§ 3551 et. seq. 28 U.S.C.A. §§991-998) first established federal sentencing guidelines. The Act applied to all crimes committed after November 1, 1987, and its purpose was “to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes.” This law simultaneously created the United States Sentencing Guideline Commission, giving it the authority to create the guidelines. In its issued guidelines, the Commission dramatically reduced the discretion of federal judges. N