Although the U.S. Federal Sentencing Guidelines have received much attention (and criticism), (1) we do well to remember that the United States is a federal system, and that each of the fifty states has its own sentencing rules and procedures. Today, roughly half of the states have sentencing commissions that issue guidelines (2)--which are generally similar to the federal guidelines in form (3) but different in structure and content. (4) This article examines the history and operation of sentencing in Washington state, an early leader in the development of sentencing guidelines in the United States. Washington state's guidelines are far less complex and rigid than the Federal Sentencing Guidelines. Moreover, whereas federal judges exercise discretion only by departing from the guidance of the U.S. Sentencing Commission, the Washington guidelines themselves encourage the exercise of judicial discretion in sentencing the individual offender.
In the early 1980s, when Washington began its sentencing reforms, the State was at the forefront of a national movement. (5) A number of goals motivated its reforms, including the desire to combat "unwarranted" sentencing disparities, to create greater transparency and uniformity in the sentencing process, and to promote a punitive philosophy of "just deserts." (6) In the initial stages of those reforms, the state sought to reduce sentencing disparities by confining judicial discretion to "exceptional" cases. (7) As the number of incarcerated offenders continually increased, (8) Washington expanded the discretion of trial judges to impose more non-prison sentences. (9) That move highlights the inherent tension between the high ideals of just deserts and uniformity on the one hand, and the practical reality of limited resources on the other.
One especially interesting aspect of Washington state's guidelines system is that, from the beginning, most aggravating factors that resulted in a higher guideline range were treated as equivalent to elements of the crime--to be charged in the indictment and proven beyond a reasonable doubt at trial. (10) However, one of the few factors not treated as an "element" was fact-finding that could trigger an "exceptional" sentence above the guideline range; judges, not juries, found such facts, and the standard of proof was by a preponderance of the evidence rather than beyond a reasonable doubt. (11) In Blakely v. Washington, (12) the Supreme Court famously held that such judicial fact-finding violated the U.S. Constitution's Sixth Amendment right to a jury trial and to proof beyond a reasonable doubt. (13) In the wake of Blakely, Washington state decided to treat all exacerbating sentencing factors, including those allowing imposition of an "exceptional" sentence, as elements of the underlying crime. (14) That remedy, like Washington state's guidelines system itself, was legislatively prescribed.
Washington's system has several advantages over the Federal Sentencing Guidelines. First, the severity of sentencing in Washington, although greater than before the guidelines, has not skyrocketed to the extent it has in the federal system. (15) Second, Washington appears to have been more successful in restraining prosecutorial control over sentencing. (16) Yet Washington's sentencing regime is not without its own weaknesses; in particular, the state (like the U.S. Sentencing Commission) has put great store in relatively arbitrary measures of "compliance" in measuring its success, while largely ignoring less visible forms of sentencing disparity. (17) And despite its efforts to encourage more non-incarcerative sentences, (18) imprisonment rates and prison costs have continued to rise. (19)
THE ROAD FROM INDETERMINATE TO GUIDELINE SENTENCING
With the passage of the Sentencing Reform Act of 1981 (SRA), (20) sentencing in Washington state underwent a radical transformation. …