Sentencing Guidelines

In a recent decision that is getting quite a bit of press, the Supreme Court changed the law in relation to which "facts" can be considered at sentencing. Specifically, it held that facts which had not been proved before a jury should not be used when establishing a defendant's sentence. The Washington Post expresses that:

The decision casts grave and unwarranted constitutional doubt on sentencing regimes around the country, including federal sentencing guidelines, that have been designed to make punishments more predictable and more evenly applied.

The Post laments that, as the dissenting Justices observed, this ruling will require some dramatic transformation in mandatory sentencing guidelines.

For many reform laws rely on factors found by judges and probation officers after conviction to guide prison time up or down. The results of forbidding this are perverse. Legislatures will either have to end the trend toward more predictable sentencing -- thereby injecting back into the justice system the unevenness and inequity that sentencing reform was meant to address -- or prosecutors will have to list every potential sentencing factor in their indictments. This latter option would mean that highly prejudicial material now kept from juries and considered only in sentencing hearings would be put before them.

The Washington Post, of course, misses a few key factors. First, as the vast majority of convictions result not from jury trials but from plea bargaining, the biggest difference in most cases would be that the prosecutor would have to do something more than convince a judge to weigh a factor against a defendant. The prosecutor would also have to convince the defendant to plead to a particular fact or forego the enhancement. Also, as much of the "prejudicial material" the Post now fears will reach juries would not be admissible at trial, preserving the status quo would at most mean a bifurcated process as exists in death penalty cases - a trial to determine guilt, and a penalty phase to determine punishment.

But in my experience, the largest point is that the guidelines tend not to increase "fairness". Instead, they lock the judge into issuing a sentence within a particular range (or jumping through a lot of hoops to avoid the guidelines, with a significant possibility of reversal on appeal), at the expense of judicial discretion. In some jurisdiction, the prosecutor's position on the sentencing factors has a greater impact on the sentence than the judge. Also, whatever "regional" fairness was ostensibly intended to result from sentencing guidelines, the urban defendant who used to get a shorter sentence because the court's docket was crowded and the county jail was full will now typically get a better charge bargain up front. The guy in the rural county, where the judge and prosecutor want to show that they are "tough on crime" and have greater time and manpower to devote to an individual prosecution, will still often get a significantly greater sentence, as no similar plea bargain will be offered.

But were sentencing guidelines ever truly about fairness to defendants? If that were ever a consideration, it seems that political considerations long ago rendered it distant to "being tough on crime". And if guidelines are rewritten such that a judge can only sentence based upon what a defendant admits or has been proved at trial, what's so bad about that?