Sentencing Guidelines and Prison Population Growth
Marvell, Thomas B., Journal of Criminal Law and Criminology
This paper explores the relationship between sentencing guidelines and prison populations in nine states. The guidelines are associated with declines in prison population growth in the six states where legislators decreed that guideline framers consider prison capacity when establishing guidelines for prison sentence lengths. In some states the guideline laws alone appear to have caused prison population growth to moderate, but in others the guidelines were probably only one aspect of a larger policy to limit prison expansion.
One of the most significant trends in criminal justice is the growing emphasis on imprisonment. Legislators have continuously responded to constituent fears by establishing longer sentences or mandatory minimum sentences for wide varieties of crimes and criminals.(1) As a result, United States prison populations have increased nearly 400% in the twenty-five years from 1968 to 1993.(2)
Sentencing guidelines have emerged as important moderating influences on this trend. Although their original purpose was to reduce sentencing disparity, the guidelines have acquired a second function in several states: to limit prison population growth by tailoring sentences to prison capacity. Legislators who either worried about prison costs or were not persuaded that more imprisonment effectively reduced crime required the guideline authors to consider prison capacity.(3)
Presumptive sentencing guidelines are sentence ranges based mainly on the severity of the crime and the defendant's criminal history. The trial judge must either impose a sentence within the range or give written reasons for departing from it.(4) By 1990 (the cut-off date for laws evaluated in this article), nine states had statewide presumptive sentencing guidelines. They are: Delaware (effective 10 October 1987), Florida (effective 1 October 1983), Michigan (effective 1 March 1984), Minnesota (effective 1 May 1980), Oregon (effective 1 November 1989), Pennsylvania (effective 22 July 1982), Tennessee (effective 1 November 1989), Washington (effective 1 July 1984), and Wisconsin (effective 1 November 1985).(5)
The initial step towards creating sentencing guidelines occurred when state legislatures (in Michigan, the Supreme Court) created a sentencing commission.(6) The commission drafted guidelines, and in six states those guidelines could go into effect without legislative approval.(7) According to Professor Albert Alschuler, this procedure allows the non-elective commissions to serve as buffers, allowing legislators to avoid public clamor for stiffer sentences.(8)
Enabling legislation in six of the nine states charged sentencing commissions, directly in five states and indirectly in one, to consider prison capacity when drafting guidelines. The law creating the Minnesota sentencing commission states: "In establishing the sentencing guidelines, the commission shall take into substantial consideration current sentencing and release practices and correctional resources, including but not limited to the capacities of local and state correctional facilities."(9) The Florida law contains virtually the same language: "In establishing the sentencing guidelines, the commission shall take into substantial consideration current sentencing and release practices and correctional resources, including but not limited to the capacities of local and state correctional facilities."(10) In Washington, if the commission recommended guidelines that probably would result in a prison population above capacity, it had to submit to the legislature a second set of guidelines consistent with capacity;(11) in practice, however, the commission's initial recommendation was consistent with capacity.(12) The Tennessee legislature directed its commission don to formulate guidelines "consistent with ... a prison capacity figure arrived at by taking ninety-five percent (95%) of the present constitutional capacity of the prison system and adding any new prison beds constructed. …