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Volume 58, Issue 1


Sentencing Lessons

by  Robert Weisberg & Marc L. Miller

In 1984 the Sentencing Reform Act (SRA) was adopted after years of proposed legislation and hearings in both houses. The SRA established Congress as a national leader in modern sentencing reform--one of the great criminal justice reform movements of the past century. At a time when both liberals and conservatives believed the classic American indeterminate…


The Functions of Sentencing and Sentencing Reform

by  Michael Tonry

Sentencing reform is in the eye of the beholder. When most federal district court judges, assistant U.S. Attorneys, and sentencing policy analysts recently would have said that the Federal Guidelines should be made less prescriptive, less severe, and less rigid, Congressman Tom Feeney introduced and won passage of a bill meant to make the Guidelines…


Punishment Purposes

by  Richard S. Frase

The reform goal of promoting reasonable consistency and reducing disparity in sentencing is meaningless without a frame of reference--consistency or disparity relative to what underlying principles? In order to decide that two offenders are similarly situated and thus should receive similar sentences (or that they are dissimilar and should receive different sentences) we must first…



The Normative and Empirical Failure of the Federal Guidelines
by  Albert W. Alschuler

When viewed from any coherent normative perspective, the Federal Sentencing Guidelines have failed to reduce disparity and probably have increased it. Even on paper, these Guidelines often fail to treat like offenders alike, and the Guidelines are worse in practice than on paper. The luck of the judicial draw appears to determine the sentences offenders…


Our System of Sentencing

by  Rachel E. Barkow

The federal system of the United States is based on the bedrock premise that the states bear the primary responsibility for criminal justice policy. States are better able to ensure that local communities can define crimes and set sentences according to the preferences of their residents. Indeed, it has long been recognized that criminal justice…


Regulating Local Variations in Federal Sentencing

by  Stephanos Bibas

While federalism justifies variations among state laws, federal criminal law is supposed to be a uniform national response to crimes of national import. On paper, a single set of federal criminal statutes and Federal Sentencing Guidelines applies uniformly throughout the United States. But in practice, federal criminal charges and sentences vary greatly from state to…


The Enforceability of Sentencing Guidelines

by  Kevin R. Reitz

The pre-Booker Federal Sentencing Guidelines were, by far, the most vigorously enforced sentencing guidelines in the nation. That is to say, under pre-Booker federal law, judicial sentencing discretion was hemmed in--by a combination of statutory and administrative rules--to a much greater extent than under the laws of any state. As compared with eighteen state guidelines…


Guidance from Above and Beyond

by  Steven L. Chanenson

Criminal sentencing does not just happen in the courtroom. Some key sentencing decisions happen long before court convenes, while other critical sentencing decisions take place long after court adjourns. Although the public focuses primarily on the black-robed figure wielding the gavel, sentencing reflects decisions by a veritable parade of actors, including legislators, sentencing commissioners, police…


From Winship to Apprendi to Booker

Constitutional Command or Constitutional Blunder?
by  Ronald J. Allen & Ethan A. Hastert

The Supreme Court has a remarkable history of blunders and retreats when it comes to the relationship between the Constitution and substantive criminal law, and it is in the process of committing another one, in our view. There are at least eight instances in which the Court has handed down a case with dramatic potential…


A Second Chance for Sentencing Reform

Establishing a Sentencing Agency in the Judicial Branch
by  Kate Stith & Karen Dunn

By declaring that the Federal Sentencing Guidelines are no longer fully binding "law" and thereby shifting some discretionary authority back to individual judges, United States v. Booker creates the opportunity to finally vindicate the holding in United States v. Mistretta. Congress can establish a new sentencing agency that is truly located in the judicial branch…


Mr. Madison Meets a Time Machine

The Political Science of Federal Sentencing Reform
by  Frank O. Bowman, III

Careful analysis of the twenty-year-old federal experiment with structured sentencing suggests one overriding conclusion about the design of sentencing systems: a sentencing system that sensibly distributes power--both the power to make sentencing rules and the power to determine sentences in particular cases--among the institutional sentencing actors is likely to work pretty well. Conversely, a system…


Reforming the Federal Sentencing Guidelines’ Misguided Approach to Real-Offense Sentencing

by  David Yellen

All sentencing systems make use of information beyond the elements of the offense of conviction. This practice, known generally as "real-offense sentencing," is necessary because of the complexity and variety of criminal behavior and the need to keep criminal statutes relatively simple. Two defendants convicted of violating the same statute may be very different in…


Distinguishing Offense Conduct and Offender Characteristics in Modern Sentencing Reforms

by  Douglas A. Berman

The universe of sentencing considerations can be divided between offense conduct and offender characteristics. Historically, offense conduct (e.g., harms to victims, whether a weapon was used, the amount of money stolen or drugs trafficked) and offender characteristics (e.g., an offender's prior criminal history, employment record, family circumstances) have both played a significant role in sentencing…


Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment

by  Nancy J. King

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…


Parity, Disparity, and Adversariality

First Principles of Sentencing
by  Margareth Etienne

Stark theoretical and ideological differences abound regarding the purpose of punishment, the circumstances under which it can be imposed, and who holds the ultimate authority to impose it. Because these age-old debates are not likely to be resolved in the near future, should Congress decide to address the issue of federal sentencing again, it ought…


Penal Policy and Penal Legislation in Recent American Experience

by  Franklin E. Zimring

The last quarter of the twentieth century stands out as the most remarkable period of change in American penal policy even when the entire history of the United States is considered. Nothing in the two centuries before 1975 would prepare observers to expect that a long run of stable rates of incarceration would shift to…


Smart Public Policy

Replacing Imprisonment with Targeted Nonprison Sentences and Collateral Sanctions
by  Nora V. Demleitner

Federal sentencing increasingly differs from sentencing in the states. While both systems have shared rising imprisonment rates throughout the last two decades, the federal rate has grown more sharply and continues to increase. States have developed some strategies to combat the growing costs of prisons, which have been fueled by the imprisonment of nonviolent drug…


“The Wisdom We Have Lost”

Sentencing Information and Its Uses
by  Marc L. Miller & Ronald F. Wright

In the Sentencing Reform Act of 1984 (SRA) Congress envisioned federal sentencing with a technocratic cast, with policies designed and revised based on "advancement in knowledge of human behavior as it relates to the criminal justice process." The value of data and expertise in the sentencing enterprise jumps off the pages of the statute. Congress…