Title: Sentencing Guidelines: Reflections on The Future
Series: Research in Brief
Author: Robin L. Lubitz and Thomas W. Ross
Published: National Institute of Justice, June 2001     
Subject: Courts: sentencing
15 pages
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U.S. Department of Justice
Office of Justice Programs
National Institute of Justice

SENTENCING & CORRECTIONS
ISSUES FOR THE 21ST CENTURY
June 2001
Papers from the Executive Sessions on Sentencing and Corrections
No. 10

Sentencing Guidelines: Reflections on the Future
by Robin L. Lubitz and Thomas W. Ross

America's experiment with sentencing guidelines has now lasted more
than a quarter of a century. Guidelines started locally and expanded to the
State and Federal levels; evolved in numerous ways; adapted to changing
philosophical currents and political realities; and have been both praised 
and vilified by politicians, criminal justice practitioners, and academics.
One theme has persisted: Guidelines have proven to be more than a fad;
they have left a lasting imprint on sentencing policy, practice, and thought
in the United States.

As their name suggests, guidelines were conceived as a way to guide
judicial discretion in accomplishing particular sentencing and correctional
objectives. Generally, two criteria--seriousness of the crime and criminal
history of the defendant--are used to prescribe punishment. By introducing
more uniformity and consistency into the sentencing process, guidelines
also make it easier to predict sentencing outcomes and correctional costs.

Beyond the elements they hold in common, guidelines vary widely. They
reflect no single philosophy of sentencing--whether "just deserts" or any
other. They are simply a tool for carrying out sentencing policies, however
varied those policies may be. The bipartisan support that guidelines have
attracted attests to their "neutrality." In some States, the impetus to adopt
them was spearheaded primarily by Republicans; elsewhere it was
initiated primarily by Democrats. In most States, guidelines eventually
won the support of both political parties. The ideological neutrality of
guidelines constitutes their strength and staying power.

The record of accomplishment of guidelines is mixed. Most observers feel
sentencing disparity has been reduced but certainly not eliminated. In
some States, guidelines have successfully established truth in sentencing,
and in some States they have been somewhat successful in controlling
prison population growth. Success or failure can be judged, however, only
in light of the goals a jurisdiction has set for its guidelines, and these too
vary considerably.

Now the question is whether the sentencing guidelines "movement" will
grow stronger or weaker as the millennium begins and inevitably brings
further changes in criminal justice policy. Several new issues have already
arisen, among them whether the core principles on which guidelines are
based are compatible with such recent concepts as restorative justice.
Another of these issues is the get-tough crime policies adopted by many
States and incorporated into sentencing guidelines. In the long term, these
policies, which include the release of large numbers of serious, violent
offenders, will need to be addressed. These issues are a challenge to the
adaptability that has been a hallmark of guidelines over the years.

Guidelines vary with sentencing policy

Initially, guidelines were established as a way to address concerns about
unfettered judicial discretion and lack of uniform and equal treatment of
similarly situated defendants. Later, they were championed as a way to
help ensure predictability in sentencing and thus to project the amount of
correctional resources needed. (Accordingly, in many States a major
benefit has been the development of computer-based population
simulation models that project the amount of dollars needed to achieve the
State's sentencing policy goals.) In some States, this use of guidelines led
in turn to the realization that they could be used to shape sentencing policy
to fit resource levels that had already been set.

Use of the predictive power of guidelines also dovetailed neatly with
efforts to achieve greater certainty in sentencing through truth in
sentencing. Prison overcrowding caused guidelines to evolve, in some
jurisdictions, into a tool for allocating and prioritizing scarce resources.
Thus, guidelines were recognized as a way to channel non-prison-bound
offenders into an array of intermediate and community-based sanctions.

Goals range widely

By the end of 1999, 18 States had developed and implemented some form
of sentencing guidelines.[1] Their goals included the following or various
combinations of the following:

 o Reduce judicial disparity in sentencing.

 o Promote more uniform and consistent sentencing.

 o Project the amount of correctional resources needed.

 o Prioritize and allocate correctional resources.

 o Increase punishments for certain categories of offenders and offenses.

 o Decrease punishment for certain categories of offenders and offenses.

 o Establish truth in sentencing.

 o Make the sentencing process more open and understandable.

 o Encourage the use of particular sanctions for particular categories of
offenders.

 o Encourage increased use of nonincarcer-ation sanctions (intermediate
and community based).

 o Reduce prison crowding.

 o Provide a rational basis for sentencing.

 o Increase judicial accountability.

Few guideline systems incorporate all these goals. On the other hand, the
list is by no means exhaustive. Moreover, each State usually has even
more specific goals for its guidelines.

Multiple features

Such features of guideline systems as the types of offenses and categories
of offenders to which they apply are as varied as their goals. In some
States, use of guidelines is voluntary and merely advisory for judges; in
others, their use is presumptive, with consideration mandatory. There are
States that provide for a wide range of sentences and others that prescribe
a very narrow range. Some States mandate that offenders serve the full
sentence imposed by the judge, and some allow parole boards to determine
the length of time served. Some States link use of guidelines to availability
of correctional resources, while others do not take resources into account.
In some States, guidelines deal only with felonies; others deal with both
felonies and misdemeanors. There are States that address only "in" and
"out" decisions (confinement or not) and those that incorporate a range of
intermediate sentencing options. Finally, there are States whose guidelines
incorporate an appellate review process for all sentences and those with no
appellate review (when the guidelines were followed).

Guidelines reflect varied sentencing philosophies

Ideally, sentencing policy flows from sentencing philosophy. That
philosophy might define retribution, incapacitation, specific deterrence,
general deterrence, rehabilitation, or restoration as the goal of
sentencing.[2] Since guidelines have been an effective means of
establishing sentencing policies, they accordingly reflect not just one but
an array of sentencing philosophies.

The earliest guideline systems were based on "just deserts," a retributive
sentencing philosophy dictating that the punishment for crime correspond
with the harm done to the victim and society. Among States that have
adopted desert-premised systems are Minnesota, Washington, and Oregon.
Other States, such as Virginia, premised their guidelines on a philosophy
of incapacitation or selective incapacitation, whose primary objective is to
remove from society offenders who are likely to commit further crimes.

Several different and even conflicting philosophies of sentencing can
coexist in a single guideline system. North Carolina is an example. One
component of its "structured sentencing" system, adopted in 1993, is a
guidelines grid that features three "bands" or types of sentence
dispositions: incarceration for violent and career offenders,
community-based punishments for nonviolent offenders who have little or
no previous criminal involvement, and intermediate punishments for those
in between. The guideline framers saw incapacitation as the major
rationale or philosophy for incarceration, rehabilitation and restoration as
the rationales for community punishment, and rehabilitation and
deterrence for intermediate punishment. In all three bands, retribution and
just deserts are additional, shared rationales/philosophies.[3]

The incorporation of different sentencing rationales/philosophies in one
system demonstrates the desire to distinguish among categories of
offenders, particularly nonviolent and violent offenders. These distinctions
in the system facilitate the formulation of specific penal strategies for
handling specific categories of offenders and offenses.

Restorative justice--a challenge to adaptability

All their permutations, varied goals, and varied philosophies
notwithstanding, almost all guideline systems are based on the same set of
core principles: proportionality, consistency/uniformity, and
rationality/transparency in sentencing. These principles, which essentially
define guidelines, seem to be at variance with certain new concepts of
sentencing and corrections, restorative justice paramount among them.

Restorative justice promotes reparation over retribution. It vests
sentencing authority in the community rather than the state. It substitutes
consensus and joint resolution for conflict and adversarial proceedings. It
emphasizes accountability of the offender to the victim and the victimized
community rather than to the state.[4] In these and other respects,
restorative justice strikes at the heart of current sentencing policies and
practices.

Incompatibility: Perception or reality?

The principle of proportionality prescribes that the sanction reflect gravity
of offense and criminal background.[5] The graver the offense and the
longer the criminal record, the more severe the sanction. Consistency and
uniformity prescribe that offenders who have similar records and were
convicted of similar crimes receive similar sanctions. Implicit is the belief
that sentences should not be subject to judicial caprice or to differences in
local norms. Rationality and transparency hold that sentences be based on
clearly articulated rules and policies that apply equally to all offenders.
The sentencing process is open and observable: Anyone who wants to
understand the basis of a particular sentence can simply consult the
guidelines.

Restorative justice is in many respects at variance with these principles. It
may recognize that the punishment should be commensurate with the
crime, but it does not use a standardized, objective measure of the crimeÕs
severity. Rather, it relies on a more subjective understanding of the harm
done and the specific circumstances of the offender. By emphasizing
individualized justice and shaping the response to the crime to the
circumstances of the offender and the needs of the victim and community,
restorative justice eschews uniformity of sentencing. In the restorative
justice framework, rationality and transparency either are not a priority or
are viewed differently because sentences are tailored to the particulars of
each case. Nor is there a body of rules open to inspection. Different or
disproportionate sentences are not viewed as a problem.

The rules and order called for in sentencing guidelines imply the need to
create a structure or body authorized to develop and implement them.
Because in most jurisdictions this authority is vested in a board or
commission, guidelines are generally developed by a relatively small
number of people. Such a "top down" approach is seemingly at odds with
the community involvement that is featured prominently in restorative
justice.

Bridging the gap: A proposed hybrid

All this suggests that at its philosophical core, restorative justice appears
to be incompatible with sentencing guidelines. However, when it comes to
practical application, there is some promise of incorporating elements of
restorative justice into sentencing guidelines so that policymakers need not
choose one over another.

The way guidelines are conventionally developed does not rule out either
community input or individualized justice. Many guideline States permit
and even encourage the development of local sentencing options (such as
intermediate and community-based sanctions) for some categories of
offenders. North Carolina's guidelines, for example, establish sentencing
boards in each county and assign them responsibility for developing and
recommending local, community sentencing options for prescribed
categories of offenders.

Although these opportunities for local input offer some promise of
resolving the impasse, there remains the guideline grid system. In the grid
system conventionally used to impose sentences, the judge uses two
discrete factors--severity of current offense and past criminal record--to
determine the length and severity of the sentence. Dispositional "bands"
prescribe various types of sanctions, such as incarceration and community
punishment. Generally, the judge has limited power to deviate from the
careful, precise calibration required by the grid. The much more
qualitative and subjective restorative justice approach, which may also
take into account the judgment of nonprofessionals, cannot be
accommodated easily within the confines of the grid system.

The key to overcoming incompatibility may lie in the fact that restorative
justice is currently used largely to adjudicate offenders who commit only
minor crimes. To deal with these people--nonviolent offenders who do not
have long criminal records--a hybrid, called "restorative sentencing
guidelines," could be created.

In the hybrid system, a new dispositional band would be added for
restorative sanctions. For this new band, the grid structure that prescribes
specific sanctions and sentence lengths would be removed. The core
principles of guidelines would be preserved for adjudicating violent and
career offenders, but the more unstructured approach to sentencing
embodied in restorative justice would be accommodated for offenders
convicted of minor crimes. (See the exhibit.)

Handling the tough-on-crime legacy

The get-tough approach that infuses current crime policy was incorporated
in many sentencing guidelines, and the implications will need to be faced.
Truth in sentencing became the goal of many guideline systems adopted in
the 1990s. It went hand in hand with elimination of discretionary parole
and reduction in the amount of time offenders are supervised in the
community following release. At the same time, most States yielded to
public and political pressure to increase punishment, especially for violent
offenders, and often integrated this approach into their guidelines as well.

The implications of these policies can be challenging. Tough penalties for
violent offenders will mean that their proportion in the prison population
will increase, as will the number of people in prison and the proportion of
older offenders. As a result of truth-in-sentencing laws, most inmates will
serve more time in prison than they would have served without such laws.
They also will be supervised on release for a much shorter period than
they would have been without these laws. Those who behave badly in
prison and consequently serve their entire term will be unsupervised on
release. Most released inmates will have few of the employment or social
skills they need to survive. The challenge is to develop systems that help
reintegrate them and effectively monitor those who continue to pose a
substantial risk. One promising new approach being piloted is "reentry
courts" that help guide reintegration.[6]

These outcomes will create new challenges for management, requiring at
minimum a reassessment of security levels and staffing needs.
Complicating matters in many guideline States is the abolition of parole
and/or reduction of "good time," which eliminates valuable tools for
managing inmates and supervising them on release. Correctional
authorities will need to find new ways to sanction behavior. Among the
implications of an aging prison population are higher health care costs;
loss of work productivity; and the need to segregate older, vulnerable
inmates from younger, aggressive ones. In response, some States are
considering early release of offenders who reach a certain age (65, for
example), although adopting such a policy would require some
backtracking on the pledge of truth in sentencing and the get-tough
approach.

Long- and short-term futures

Few, if any, 19th-century experts in sentencing policy and law would have
predicted the innovations and other changes that the 20th century wrought.
At the close of the 19th century, the concept of judicial discretion was
nearly inviolable. Concerns about proportionality, consistency, and
rationality were hardly at the forefront of public policy debate. In fact, at
the time, the major progressive movement in corrections premised its
espousal of shifting from corporal punishment to penitentiaries on faith in
rehabilitation and the indeterminate, medical model. Little thought was
given to the monetary costs of corrections.

In the same way, as a new century and new millennium begin it is
impossible to predict the societal currents that will drive sentencing
policies in the 21st century. Much will depend on trends in crime rates, the
pace of technological change, the boom and bust cycles of the economy,
the direction of political leadership, and the influence of the popular
media. It is likely that technological advances will force a rethinking of
how to control offenders and regulate their behavior. Trends in crime
rates, either up or down, will help shift public opinion toward retribution,
restoration, or rehabilitation. Economic cycles will compel us to place
either more or less emphasis on the need to predict and ration correctional
resources. Changing political leadership will guide us along different
pathways. Finally, the media, with its pervasive influence on perception
and culture, may prove to have the greatest and most lasting influence on
sentencing and corrections policy.

The long-term future of sentencing guidelines and sentencing policy is
uncertain, but the near term is much clearer. If the utility of guidelines in
operationalizing sentencing policy is any indication, they will continue to
be employed. They have been a valuable tool for allocating State resources
rationally and thoughtfully. The public and political demand for using
guidelines this way is likely to continue to strengthen their appeal. The
two-dimensional structure of most guideline systems has an appealing
simplicity: The clear prescription of sentence dispositions and lengths
constitutes a series of "windows" through which to visualize policy and to
grasp the interactions and interrelations of crime severity, criminal record,
and punishment prescribed. Moreover, the concepts of consistency and
proportionality basic to guidelines still resonate with the public.

It also appears likely that interest in restorative justice will continue to
grow as understanding of the need for reconciliation and individual
healing grows. As this happens, efforts to reconcile this approach with
sentencing guidelines are also likely to accelerate.

Perhaps the most compelling reasons to expect that guidelines will
continue to be widely accepted and applied are their adaptability and their
ideological neutrality. This expectation is premised, however, on the
assumption that sentencing policies will continue to reflect the core
guideline principles. One concern is that the internal integrity of guidelines
remain intact. When legislation is enacted to deal with the "crime of the
day," the rationality of the guideline system often takes a direct hit, and
legislative action may over time erode guidelines and the courts'
confidence in them. How to prevent micromanagement by legislatures
while preserving the policymaking function of the legislative branch will
be a constant challenge.

Notes

1. Kevin R. Reitz, "The Status of Sentencing Guideline Reforms in the
U.S.," Overcrowded Times 10 (6) (December 1999): 9-10. In addition to
the 18 States that have guidelines, in 4 others guideline proposals were
pending at the end of 1999, and in 3 States plus the District of Columbia
they were under study. 

2. In practice, sentencing policy might be based on purely utilitarian
considerations rather than on any philosophy of sentencing. An example is
the policy goal of fostering predictability in sentencing as a way to project
the amount of correctional resources needed.

3. For an indepth description of North Carolina's structured sentencing
system, see Managing Prison Growth in North Carolina Through
Structured Sentencing, by Ronald F. Wright, Program Focus series,
Washington, DC: U.S. Department of Justice, National Institute of Justice,
February 1998, NCJ 168944. The system was named a winner in the
Innovations in American Government Program in 1997. The findings of an
NIJ-sponsored evaluation of structured sentencing are being prepared for
publication.

4. An elaboration of the concept of restorative justice was published in the
Sentencing & Corrections: Issues for the 21st Century series. See
Incorporating Restorative and Community Justice Into American
Sentencing and Corrections, by Leena Kurki, Research in Brief,
Washington, DC: U.S. Department of Justice, National Institute of
Justice/Corrections Program Office, September 1999, NCJ 175723.

5. Whether these two "dimensions" are the most appropriate ones on
which to build a system of sentencing is, of course, a matter of debate.

6. The U.S. Department of Justice recently launched a two-pronged project
designed to promote reentry initiatives at the local level. One is the
Reentry Partnerships Initiative, which is sponsoring pilot projects whose
goal is better risk management of released prisoners by means of enhanced
surveillance, risk and needs assessment, and prerelease planning. There are
eight pilot sites. The other initiative is the reentry courts, with nine sites
participating. Based on the drug court model, the projects use sanctions
and incentives to help released offenders remain crime free.

The Executive Sessions on Sentencing and Corrections 

Convened the following distinguished panel of leaders in the fields:

Neal Bryant
Senator
Oregon State Senate

Harold Clarke
Director
Department of Correctional Services
State of Nevada

Cheryl Crawford
Acting Director, Office of Development and Communications 
National Institute of Justice
U.S. Department of Justice

Walter Dickey
Evjue-Bascom Professor of Law
University of Wisconsin 

Ronald Earle
District Attorney
Austin, Texas

Tony Fabelo
Director
Texas Criminal Justice Policy Council

Richard S. Gebelein
Superior Court Judge
Wilmington, Delaware

John Gorczyk
Commissioner
Department of Corrections
State of Vermont

Kathleen Hawk Sawyer
Director
Federal Bureau of Prisons
U.S. Department of Justice

Sally T. Hillsman
Deputy Director
National Institute of Justice
U.S. Department of Justice

Martin Horn
Secretary
Office of Administration
Commonwealth of Pennsylvania

Susan M. Hunter
Chief, Prisons Division
National Institute of Corrections
U.S. Department of Justice 

Leena Kurki
Senior Research Associate
Council on Crime and Justice
Minneapolis

John J. Larivee
Chief Executive Officer
Community Resources for Justice

Joe Lehman
Secretary
Department of Corrections
State of Washington

Dennis Maloney
Director
Deschutes County (Oregon) Department of Community Justice

Larry Meachum
Director
Corrections Program Office
Office of Justice Programs
U.S. Department of Justice

Mark H. Moore
Guggenheim Professor of Criminal Justice Policy and Management
John F. Kennedy School of Government
Harvard University

Norval Morris
Julius Kreeger, Professor of Law and Criminology, Emeritus
University of Chicago

Joan Petersilia
Professor of Criminology, Law and Society
School of Social Ecology
University of California, Irvine

Kay Pranis
Restorative Justice Planner
Department of Corrections
State of Minnesota

Michael Quinlan
Former Director
Federal Bureau of Prisons 
U.S. Department of Justice 

Chase Riveland
Principal
Riveland Associates

Thomas W. Ross
Director 
Z. Smith Reynolds Foundation
Former Chair
North Carolina Sentencing and Policy Advisory Commission

Dora B. Schriro
Director
Department of Corrections
State of Missouri

Michael Smith
Professor of Law
University of Wisconsin 

Morris Thigpen
Director
National Institute of Corrections
U.S. Department of Justice

Michael Tonry
Director
Institute of Criminology
University of Cambridge
Sonosky Professor of Law and Public Policy
University of Minnesota 
Project Director
Executive Sessions on Sentencing and Corrections

Jeremy Travis
Senior Fellow
The Urban Institute
Former Director
National Institute of Justice
U.S. Department of Justice

Reginald A. Wilkinson
Director
Department of Rehabilitation and Correction
State of Ohio

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About This Series

It is by now a commonplace that the number of people under criminal
justice supervision in this country has reached a record high. As 
a result, the sentencing policies driving that number, and the field of
corrections, where the consequences are felt, have acquired an
unprecedented salience. It is a salience defined more by issues of
magnitude, complexity, and expense than by any consensus about future
directions. 

Are sentencing policies, as implemented through correctional programs
and practices, achieving their intended purposes? As expressed in the
movement to eliminate indeterminate sentencing and limit judicial
discretion, on the one hand, and to radically restructure our retributive
system of justice, on the other, the purposes seem contradictory, rooted in
conflicting values. The lack of consensus on where sentencing and
corrections should be headed is thus no surprise. 

Because sentencing and corrections policies have such major
consequences--for the allocation of government resources and, more
fundamentally and profoundly, for the quality of justice in this country and
the safety of its citizens--the National Institute of Justice and the
Corrections Program Office (CPO) of the Office of Justice Programs felt it
opportune to explore them in depth. Through a series of Executive
Sessions on Sentencing and Corrections, begun in 1998 and continuing
through the year 2000, practitioners and scholars foremost in their field,
representing a broad cross-section of points of view, were brought together
to find out if there is a better way to think about the purposes, functions,
and interdependence of sentencing and corrections policies. 

We are fortunate in having secured the assistance of Michael Tonry,
Sonosky Professor of Law and Public Policy at the University of
Minnesota Law School, and Director, Institute of Criminology, University
of Cambridge, as project director. 

One product of the sessions is this series of papers, commissioned by NIJ
and the CPO as the basis for the discussions. Drawing on the research and
experience of the session participants, the papers are intended to distill
their judgments about the strengths and weaknesses of current practices
and about the most promising ideas for future developments. 

The sessions were modeled on the executive sessions on policing held in
the 1980s and 1990s under the sponsorship of NIJ and Harvard's Kennedy
School of Government. Those sessions played a role in conceptualizing
community policing and spreading it. Whether the current sessions and the
papers based on them will be instrumental in developing a new paradigm
for sentencing and corrections, or even whether they will generate
broad-based support for a particular model or strategy for change, remains
to be seen. It is our hope that in the current environment of openness to
new ideas, the session papers will provoke comment, promote further
discussion and, taken together, will constitute a basic resource document
on sentencing and corrections policy issues that will prove useful to State
and local policymakers.

National Institute of Justice
U.S. Department of Justice 

Corrections Program Office
U.S. Department of Justice

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Robin L. Lubitz, Senior Deputy Director, Administrative Office of the
Courts of the State of North Carolina, was formerly Executive Director of
the North Carolina Sentencing and Policy Advisory Commission. Thomas
W. Ross, currently Director of the Z. Smith Reynolds Foundation, was a
judge of the Superior Court and Chair of the North Carolina Sentencing
and Policy Advisory Commission.

This study was supported by cooperative agreement 97-MUMU-K006
between the National Institute of Justice and the University of Minnesota.

Findings and conclusions of the research reported here are those of the
authors and do not necessarily reflect the official position or policies of the
U.S. Department of Justice.

The National Institute of Justice is a component of the Office of Justice
Programs, which also includes the Bureau of Justice Assistance, the
Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency
Prevention, and the Office for Victims of Crime.

This and the other NIJ publications can be found at and downloaded from
the NIJ Web site (http://www.ojp.usdoj.gov/nij).

NCJ 186480