Guidelines as Guidelines: Lessons from the History of Sentencing Reform

Rakesh Kilaru, Stanford Law School

Abstract

Over the last thirty years, sentencing guidelines have become an increasingly prominent feature of the American criminal justice system. Between the Supreme Court’s Apprendi-Blakely-Booker line of cases, dedicated law reviews like the Federal Sentencing Reporter, multitudinous other law review pieces, and Doug Berman’s famous sentencing blog, a great deal of ink has been spilled discussing the contours and future of guidelines reform. Most of this scholarship, however, falls in one of two camps. In one camp are scholars who chronicle the history of sentencing guidelines in particular states. In the other are scholars who discuss guidelines as a national phenomenon, but mostly with an eye to exposing the flaws in the federal system, or offering suggestions for future reformers. Most scholars in the latter camp use the states as foils for the federal system, and chronicle the former as a success story and the latter as a failure.

This Article is different. It has one essential goal: offering an explanation for the persistence of sentencing guidelines in American jurisprudence at large. As some scholars have noted, state guidelines survived and thrived in the face of Blakely. At the same time, the federal guidelines still govern the outcome in around 85% of criminal cases, despite being panned as a failure and rendered purely advisory by the Supreme Court. This Article attempts to account for this persistence by offering a historical model for guidelines resilience. In particular, this Article draws upon the states’ experience to argue that guidelines are most successful when they represent a diversely composed commission’s collaborative effort to administer and regulate criminal sentencing rather than revise substantive criminal law. Yet this Article also accounts for the federal experience as well. It argues that when guidelines reform ambitiously attempts to do more — when the guidelines embody a new, draconian criminal code intended dramatically to alter sentencing practice, and the commission acts “legislatively” in defining and ranking crimes — such reform prompts eventual opposition and evasion, and ultimately some form of external moderation is a necessary precondition for continued survival. I argue that for the federal system, Booker served that role. I conclude by exploring what this history may mean for the future.

This model — part historical and part theoretical — is by no means perfect. But it represents an important first step in synthesizing the history of guidelines reform — a step that may well prove helpful for future sentencing reformers.