|Since 1980, roughly twenty states and the federal government have implemented sentencing guidelines. Such systems have been categorized as either voluntary or presumptive, depending on the extent to which gujidelines curtail judicial discretion. Voluntary guidelines have included those systems that merely provide suggestions to trial courts, allowing judges unconstrained discretion to depart from guidelines recommendations. Presumptive guidelines have included those systems that set specific requirements on trial courts, allowing judges little or no discretion to depart from guidelines recommendations. However, this dichotomization of guidelines systems as either voluntary or presumptive masks the variation among similarly "presumptive" states in the allocation of judicial discretion and has led academics and policymakers to largely overlook the way states have allocated these varying levels of discretion through legislation, judicial rule, or appellate review.
This paper examines the construction of sentencing guidelines, comparing the ways guidelines states constrain judicial discretion. Through analysis of case law and enabling legislation, the paper evaluates state-level mechanisms employed to retain or restrict judicial discretion under sentencing guidelines, the role of appellate review in maintaing judicial discretion, and the goals of guidelines commissions in allocating discretion. The paper presents a new typology of sentencing guidelines systems, moving beyond the voluntary/presumptive dichotomy and presenting a cross-state comparison of the jurisprudence of sentencing departures
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