For over two hundred years our nation's legislatures have, for the most part, rejected mandatory penalties in favor of judicial discretion to sentence within a designated range. This policy has endured, despite shifts in punishment philosophy, for two reasons. First, any offense definition is necessarily inexact, sweeping in less culpable offenders who just barely violate its terms along with hardened criminals who cause far more harm than its drafters envisioned. A sentencing range allows the judge to adjust the sentence to address these individual cases. Second, as negotiation increasingly dominates criminal justice, judicial discretion in sentencing has helped to iron out the very different punishments that like offenders might have otherwise received as a result of bargains--bargains sometimes based on considerations that the legislature has not endorsed as valid reasons to reduce or increase punishment. The judge's final authority to select an appropriate sentence from within a range of punishment is thus an essential part of any sentencing policy that simultaneously values both efficiency through negotiated dispositions and consistent application of systemwide sentencing norms...

 

Read the full article.