Sentencing Matters

The guidelines developed by the U. S. Sentencing Commission, which took effect on November 1, 1987, are the most controversial and disliked sentencing reform initiative in U. S. history. They are commonly criticized on policy grounds (that they unduly narrow judicial discretion and shift discretion to prosecutors), on process grounds (that they foreseeably cause judges and prosecutors to circumvent them), on ethical grounds (that by forcing key decisions behind closed doors, they foster hypocrisy and undermine the integrity of federal sentencing), on technocratic grounds (that they are too complex and are hard to apply accurately), on fairness grounds (that, because only offense elements and prior criminal records are taken into account, very different defendants receive the same sentence), on outcome grounds (that they have not reduced sentencing disparities), and on normative grounds (that they are too harsh).

For all that, as chapter 2 demonstrated, in a narrow institutional sense the U. S. Sentencing Commission has been a success. As a result of the commission's guidelines and its policies, federal sentencing has overall become much harsher (as the commission wanted) than before the guidelines took effect. The commission's and the guidelines' constitutionality was upheld by the U. S. Supreme Court. Federal appellate courts have for the most part upheld the commission's interpretations of its enabling legislation and rejected trial judges' efforts to second-guess commission policies. Even widespread circumvention of commission policies by judges and lawyers is in a perverse way commentary on the commission's institutional success; were the guidelines not so rigid and the sentences they specify not so radical a departure from past practices, fewer practitioners would feel justified in circumventing them.

The commission's institutional achievement, however, is like that of a doctor whose patient died despite a successful operation. In the final judg

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