Sentencing: Learning From, and Worrying About, the States
The Columbia Law Review's Symposium on sentencing, which took place less than two weeks after the Supreme Court's dramatic semi-invalidation of the federal sentencing guidelines, was certainly timely. Nevertheless, it is critical to understanding the Symposium's purposes to realize that it was not planned in response to United States v. Booker, or even to Blakely v. Washington. The Symposium was conceived before either case was decided, as a very conscious attempt to steer the discussion of sentencing away from Congress and the federal guidelines and toward states' experiences. The vast majority of criminals are sentenced in state systems, and those systems are remarkably diverse. So far, the federal guidelines have influenced state sentencing regimes mostly as a negative model and a distraction. Perhaps it is time for Congress to look to what has been happening in the states, and for academics to focus more of their attention on the specifics of state sentencing reforms.
The late twentieth century saw wholesale changes in sentencing philosophy and practice. The conventional wisdom about the primary purpose of sentencing shifted away from rehabilitation as a dominant philosophy and toward retribution or 'just deserts." The method of sentencing shifted away from broad judicial discretion to be exercised on a case-by-case basis and toward narrower authority constrained by rules laid down by legislatures or sentencing commissions. The form of sentences changed from indeterminate terms of imprisonment whose actual length would be determined by parole boards long after sentence was passed, to fixed or determinate sentences, with parole often abolished. The length of sentences increased, as the public sought greater security and less mercy, perhaps even less justice. Thus, the law of sentencing changed, from a legal regime that was famously characterized by Marvin Frankel in the 1970s as literally lawless, to one in which, in many states and especially in the federal jurisdiction, there is an extraordinarily rich and complicated body of substantive and procedural sentencing law.