Allocating Discretion in Presumptive Sentencing Guidelines Systems: A Cross-State Comparison

Don Stemen, The Vera Institute of Justice

Since 1980, ten states have implemented presumptive sentencing guidelines. Designed to ensure neutrality and consistency in sentencing decisions, presumptive guidelines restrict or require admission to prison for certain offenses or offenders and specify sentence lengths within narrow ranges. Many commentators argue that such guidelines decrease the discretion of sentencing judges relative to both prosecutors and legislators and effectively shift control over sentencing decisions to earlier stages of the criminal justice system. These critics maintain that the goals of presumptive guidelines may be undone by this "hydraulic displacement of discretion" since charging decisions remain formally unregulated and rigidly prescribed sentence ranges fail to account for case-specific factors. However, the aggregation of all presumptive guidelines systems under a single theoretical critique masks the ways individual states allocate discretion among actors. For example, while Pennsylvania gives prosecutors unchecked discretion to seek higher sanctions upon notice to the court, Oregon retains wide judicial discretion to decide between probation and incarceration for marginal offenders.

This paper examines the construction of presumptive guidelines across ten states, comparing the ways states allocate discretion within the system. Through statutory and legal analysis and interviews with sentencing guidelines commissioners, the paper evaluates state-level mechanisms employed to retain or restrict judicial and prosecutorial discretion in sentencing, the role of appellate review in maintaining judicial discretion, and the goals of guidelines commissions in allocating discretion across actors.

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Updated 05/20/2006