Determinate Sentencing and American Exceptionalism: The Underpinnings and Effects of Cross-National Differences in the Regulation of Sentencing Discretion

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INTRODUCTION

As is true of any other practice that involves the application of rules by human beings, sentencing practices are suffused with the exercise of discretion. (1) In light of a range of permanent conditions that shape the setting in which sentencing decisions are being made--including, the indeterminacy of legal rules, differences of opinion regarding the aims of punishment, and uncertainty regarding the particular offender's prospects of reoffending--it is clear that sentencing laws cannot totally control the way in which judges, prosecutors, and juries exercise their discretionary powers. Nevertheless, there is considerable support for the view that some forms of legal regulation of sentencing practices may be effective in reducing unwarranted disparities and in reinforcing the legitimacy of the criminal justice system. Different legal systems employ different mechanisms, including mandatory penalties, system-wide sentencing guidelines, and different forms of judicial review of sentencing decisions, in an attempt to achieve these goals.

This article seeks to contribute to our understanding of the political and institutional factors shaping cross-national differences in the regulation of sentencing discretion. In particular, the article focuses on an important pattern that clearly emerges when we adopt a comparative perspective to examine current trends in sentencing law, namely, the exceptionally extensive use of determinate sentencing laws in the American legal system in comparison with other central common law and civil law systems. Over the last three decades, determinate sentencing reforms have proliferated in American law. The scope and range of mandatory penalties increased dramatically. (2) Numerical sentencing guidelines were adopted in most of the states and in the federal system. (3) Many jurisdictions abolished their parole system or imposed statutory restrictions on the discretion of parole authorities. (4) Despite the growing Americanization of political debates over crime problems in various Western democracies, these models of determinate sentencing legislation did not find a market across the Atlantic. The number of offenses liable to mandatory sentences in other Western democracies has remained significantly lower than in the United States. European systems did not adopt "truth in sentencing" laws or similar statutory mechanisms to restrict the early release of prisoners. And no other country has imported the American version of numerical sentencing guidelines.

This article considers why the idea of determinate sentencing reform has gained such prominence in post-1970s American law but has not had a similar influence in other Western legal systems. This inquiry has important implications regarding two central topics in comparative law and criminal justice. First, the claim that the standard mechanisms serving to regulate sentencing discretion in the American legal system today are considerably more formalized, rigid, and restrictive than those operating in civil law systems (as well as in other common law jurisdictions) seems to be at odds with the conventional way in which the essentials of American and European conceptions of adjudication are characterized in comparative law scholarship. American conceptions of adjudication are usually associated with a pragmatist approach to judicial lawmaking, (5) a willingness to recognize the policymaking function of courts, (6) and a "jurisprudential style" that gives much greater weight to substantive values of justice than other legal systems are willing to provide. (7) The European legal tradition, by contrast, has long been famous for its striving to minimize the scope of judicial discretion and for its tendency to rely on codified legal norms for furthering that goal. In this context, both the proliferation of determinate sentencing mechanisms in American law and the resistance of European policymakers to adopt these mechanisms raise important questions for comparative legal scholarship. …