REVISED Draft

Advisory Guidelines[1] in the Post-Blakely Era

FORTHCOMING 17 Federal Sentencing Reporter ___ (2005)

Authors:

Kim S. Hunt, Executive director, District of Columbia Sentencing Commission

Michael Connelly, Executive director, Wisconsin Sentencing Commission

*The views of this article are those of the authors and do not necessarily reflect the policy of their respective Commissions. The authors expressly thank Sarah Maguire of the La Follette School of Public Affairs, University of Wisconsin, for her assistance on this article.

Contact:

Kim S. Hunt, Ph.D., District of Columbia Sentencing Commission, 441 4th St, NW, Suite 830 South, Washington, D.C. 20001, Phone (202) 727-8821

With its rulings in Booker and Fanfan, the Supreme Court has redirected attention to the application of advisory sentencing guidelines. Advisory guidelines, operating in ten states,[2] are sentencing guidelines that do not require a judge to impose a recommended sentence, but may require the judge to provide justification for imposing a different sentence. Although some commentators have questioned the efficacy of advisory systems in addressing sentencing disparity and predictability, this article will show that, properly constituted and overseen, these systems have produced results in many ways comparable to those of prescriptive sentencing systems, which themselves have not always achieved or sustained the ambitious goals they have set. The article concludes that, if done with an eye to the successes of states with advisory systems and the conditions necessary for those successes, the sentencing world of Booker and Fanfan can, in fact, accomplish the original objectives of the federal structured sentencing system. States with presumptive sentencing guidelines systems[3] can similarly accomplish many or all of their objectives.[4]

Apprendi, Blakely and Advisory Guidelines

Based on the Supreme Court’s decisions in Apprendi and Blakely, most analysts concluded that fully advisory guidelines such as the District of Columbia guidelines and the Wisconsin system were not constitutionally infirm due to their advisory, non-binding nature. These advisory sentencing systems did not violate the Court’s concern of providing notice of punishment ranges to prospective offenders. For example, any individual committing a crime in the District of Columbia “bargained for” the legislatively-established sentencing range set out in the D.C. Code. As long as sentences imposed under the D.C. guidelines (either a sentence within the guideline range or a departure that should be accompanied by a departure reason) were permissible under the D.C. Code, they did not appear to violate the Constitutional rules set out in Apprendi and Blakely.

Therefore, from the beginning, advisory sentencing guidelines appeared to be an effective “fix” for Blakely problems. The Supreme Court confirmed this in Booker and Fanfan, holding that the proper remedy for the constitutional infirmities of the federal guidelines was to retain them as advisory and part of an appellate process for “reasonableness” of sentences. This has evoked concerns from proponents of prescriptive guidelines and from opponents of guidelines generally that advisory systems were ineffective or more trouble than they were worth. These concerns were based on a perception of the superior effects of prescriptive systems and of the inferior outcomes of advisory ones. Therefore, this article will examine, first, the perceived advantages of prescriptive systems and, second, the misperceptions of inevitable inferiority of advisory systems.

A Brief Review of Presumptive Guidelines

The first structured sentencing systems were presumptive sentencing guidelines systems. Presumptive guidelines systems are popular among many informed observers, and in most of the states where they began, for a variety of reasons (Reitz, 2001;Tonry, 2004; Ruth and Reitz, 2003).[5] Further, these systems are often seen as superior not only to indeterminate sentencing systems, but also to advisory guidelines systems.

The attraction of a presumptive guideline system (here referred to as the Minnesota model) is succinctly described in the American Law Institute’s Model Penal Code draft:

Within a framework of legislatively defined and broadly-graded offenses, the sentencing commission in the Minnesota model is given power to specify presumptive sentences through legally binding guidelines for whole categories of offenses and offenders. The guideline structure, however, also authorizes and invites substantial trial-court discretion to deviate from presumptive penalties in cases that fall outside the paradigm of a typical case[6].

This preference has rested primarily on two perceived strengths, the ability to control unwarranted disparity and the ability to control prison costs.[7]

Although other presumptive sentencing guidelines systems such as those in Pennsylvania and the state of Washington have received attention and praise, much of the independent scientific evidence for the superior performance of presumptive sentencing guidelines comes from studies of Minnesota and the federal system.[8] The Minnesota Sentencing Commission found a reduction in disparity that may be attributed to the introduction of presumptive guidelines.[9] This evidence may resonate with those that believe that without a formal enforcement mechanism, the practitioners who most stray from the norm will disregard guidelines. However, despite the power of presumptive guidelines to enforce the rules through appellate review, Stolzenberg and D’Alessio report that early gains in disparity have slowly eroded. From 1977 to 1989, they found that the early gains in reducing prison disposition disparity (disparity in who goes to prison) substantially eroded and approached pre-guidelines levels.[10]

The other presumptive system that has received substantial independent study is the United States sentencing guidelines. McDonald and Carlson (1993) found evidence of disparity reduction, attributing most differences in sentences between whites and blacks to legitimate sentencing factors:

The Guidelines themselves appear not to have created the larger gap in sentences imposed on whites and blacks in guidelines cases, other than decision rules created to incorporate mandatory minimum sentencing provisions for crack cocaine.[11]

Hofer et al. (1999) use an innovative methodology to conclude that the federal guidelines “have significantly reduced overall inter-judge disparity in sentences imposed.”[12] Anderson et al. (1999) compared the average sentences of judges within a district both before and after the implementation of the Ffederal Ssentencing Gguidelines and found that the expected difference in sentence between any two judges in the same district (that is, inter-judge disparity) fell from approximately five months to approximately four months.[13] However, Anderson et al. also conclude that a far more dramatic impact of the federal guidelines is the impact on average sentence length, which clearly increased (from 26 months to 38 months) after implementation of the federal guidelines.

However, in its most recent report on federal sentencing, the U.S. Sentencing Commission found significant changes in treatment of whites and minorities. From 1984 and 2002, whites in federal prison dropped from almost 60% of the total population to almost 35% while Hispanics increased from 15% to 40%. Similarly, in the same period, average sentences went from near equality among blacks and whites at just over two years to almost six years for blacks but only almost four years for whites. The report attributed the growing disparate treatment to harsher mandatory minimum sentences for drug possession and harsher sentences in the South than in the Northeast and West.[14]

So while the Federal Sentencing Guidelines did appear initially to have reduced unwarranted disparity, their effectiveness has been curtailed. This would not surprise earlier critics of the federal system. Guidelines on the federal level received substantial support from those who believed them to be an effective way to control disparity, but that view was undermined by subsequent policy decisions, most notably, differential treatment of crack and powder cocaine offenses (Stith and Cabranes, 1998).[15] Recently, the American College of Trial Lawyers succinctly summarized the view of many, that on balance the federal presumptive guidelines have failed more than they have succeeded:

Efforts to eliminate disparity in sentencing have resulted in an incursion on the independence of the federal judiciary, a transfer of power from the judiciary to prosecutors and a proliferation of unjustifiably harsh individual sentences.[16]

In summary, on the basis of the Minnesota studies and the federal experience, presumptive guidelines appear to have an effect on unwarranted disparity, though that effect suffers over time, and other factors may offset the gains in disparity reduction. It is not clear whether the initial success of these guidelines systems was symptomatic of broader practitioner concern about their sentencing and its consequences, which did not maintain intensity after an initial period. If that is so, and in light of the paucity of recent scholarly research on guidelines discussed below, then the case for presumptive guidelines may be best based on cultural rather than institutional grounds.

Another advantage often touted for presumptive guidelines systems is the ability to project prison bedspace requirements and, thus, future funding needs. Some states explicitly tied their presumptive guidelines to management of correctional resources and bedspace. Nicholson-Crotty (2004) notes that mandatory guidelines are, in fact, associated over time with restraint of prison growth, but if and only if mandatory guidelines are accompanied by an explicit linkage to capacity and resources, whereas advisory guidelines have been essentially resource neutral. It is not clear whether Nicholson-Crotty examined advisory guidelines for linkages to capacity and resources.[17] Sorenson and Stamen have also recently linked presumptive guidelines to lower incarceration and admission rates in states.[18]

Reitz (2003) examined prison growth under state guideline systems to national average prison growth rates.[19] He found that eight out of nine states that had sentencing guidelines and abolished parole release had prison growth rates lower than the national average over the period in which their guidelines were in effect. The presumptive guideline states with lower prison growth included Minnesota, Washington, Oregon, North Carolina and Ohio.[20] However, advisory guideline systems in Delaware and Virginia had lower prison rates also.

Again, Minnesota’s guidelines have received specific study for their success in linking prison capacity to available resources and in limiting the growth of its prisons well below national averages. As with reducing disparity, however, evidence indicates that the resource-linked effect may also wane as time goes on. For example, in 2003, Minnesota ranked second nationally in percentage increase in prison population (up 10.3%).[21] It had ranked third the prior year.[22] In fact, Minnesota, while still low in incarceration rate nationally, has been battling prison population increase concerns for almost a decade, despite its guidelines. According to Priesmeyer, much of the jump can be attributed to more aggressive sentencing of drug offenders, who rose as a percentage of the state’s prison population from 16% in 2000 to 25% in July 2004. Other factors included an increase of twelve months in the average prison term from 2001 to 2004 and a decrease in the use of probation instead of prison in the period.[23] Data also indicate that the increased incarceration has fallen more greatly on blacks[24] and women,[25] calling into question the guidelines’ reported effectiveness against unwarranted disparity.

These data do not disprove the validity of assertions of Minnesota’s guidelines effectiveness compared to other states, but they do note concerns that states considering types of guidelines systems in light of Blakely Apprendi etc. should be aware of. As a Bureau of Justice Assistance (BJA) overview of structured sentencing concluded in 1996, “Minnesota’s success in avoiding prison overcrowding, then, is not linked solely to guidelines . . . .” and “. . . guidelines themselves are not a sufficient condition for controlling prison crowding . . . . Clearly, prison crowding can be controlled with or without guidelines”(1996, 106).[26] Or, perhaps, with advisory guidelines.

In fact, Minnesota and other presumptive guidelines states may face a future problem not faced by states with advisory guidelines. Their early success in diverting lesser offenders to alternative sanctions while imprisoning for longer periods more serious offenders may now be “backing up” the latter offenders more intensely in their prisons, as that BJA report warned (1996). Because states with presumptive systems may not have the political flexibility to adjust sentences “under the radar” to meet new resource needs that advisory and non-guidelines states will still possess, in the long term presumptive states may prove less able to deal with growing prison populations through their guidelines.

Advisory and Presumptive Systems Compared

Admittedly, advisory guidelines have not been studied with this degree of independence and rigor. Michael Tonry has written brief analyses of advisory systems in his many works on sentencing. On the whole, he has not been impresseddisparaging”, relying on research from the early 1980s. He did, however, cite reports from Delaware indicating success in meeting the state’s expressed guidelines goals, while noting that no formal independent evaluations had been conducted (1996: 27-28). This latter point has been true for all advisory systems, as he also indicates, despite the changes in both presumptive and advisory systems and their results since the earlier research.[27] Virginia found evidence of disparity reduction after the introduction of advisory sentencing guidelines in six pilot sites.[28]

As previously noted, perhaps part of the concern regarding advisory guidelines concerns the lack of a formal enforcement mechanism. In other words, perhaps advisory guidelines are being disregarded by the practitioners when an option exists to reject the guidelines in part or in total. If this were a well-grounded concern, we would expect to see that guideline compliance is starkly lower in advisory guideline states than in presumptive guideline states. However, there is little evidence that compliance rates differ greatly or differ in ways that favor presumptive guidelines. A 1996 National Center for State Courts report on sentencing issues found no obvious pattern of compliance.[29] The study found that Delaware, an advisory state, had a compliance rate of 90%, almost identical to that of Washington, a presumptive state (91.9%). In another comparison of advisory and presumptive states, Virginia’s compliance rate of 75.2% compared closely to Minnesota’s rate of 77%.[30]

More recently, a spot comparison of guideline compliance rates between presumptive and voluntary systems continues to reflect a mixed picture. Regarding presumptive guideline systems, compliance is generally relatively high, if Minnesota, Oregon and Washington can be taken as representative. In Minnesota, 73% of felony offenders sentenced in 2002 received the sentence recommended under the Guidelines. The remaining 27% received a sentence that was some type of departure from the Guidelines.[31] In Oregon, 81% of all sentences in 2001 were within the presumptive sentence range.[32] In the state of Washington in FY 2003, 84.1% were sentenced within the standard range.[33]