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Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation


Rachel E. Barkow


New York University School of Law

Kathleen M. O'Neill


New York University School of Law


Texas Law Review, Forthcoming
NYU Law School, Public Law Research Paper No. 06-14
NYU, Law and Economics Research Paper No. 06-23

Abstract:     
One of the most significant modern developments in criminal law is the birth of the sentencing commission. Yet the creation of these commissions presents a puzzle under conventional theories of delegation. The accepted wisdom is that legislatures delegate policymaking to agencies in order to avoid having to choose among the claims of competing constituents. This theory cannot explain the creation of sentencing commissions, however, because the politics of crime in this period has not been characterized by conflicting demands of powerful groups and the electorate. On the contrary, all of the powerful political groups and the electorate have lined up on the same side: They all seem to support tougher sentencing laws. What, then, does account for the development of sentencing commissions in this political climate?

Borrowing from political science and administrative law scholarship and analyzing a data set of American jurisdictions with and without sentencing commissions from 1973 to 2000, this Article explores the political and economic factors that could prompt a legislature to delegate some of its responsibility for setting punishments to a sentencing commission even when the political climate rewards legislators for passing tougher sentencing laws themselves. We find that various political and economic factors - specifically those factors that are rooted in a concern with the costs of longer sentences and incarceration - play a significant role in predicting when states will adopt sentencing commissions and guidelines. The relationship between sentencing commissions and costs is most obvious in our findings that corrections as a large percentage of state expenditures and a high incarceration rate are positively correlated with the presence of sentencing commissions. But a concern with costs also explains some of the statistically significant political variables as well, including the positive relationship between commissions and a narrow partisan margin, elected judges and a Republican House. We also find that divided government at the state level decreased the possibility of adopting and maintaining sentencing commissions. We also find relationships with statistical significance between many of our variables and the adoption of sentencing guidelines. A narrow partisan margin, a Republican House, a Democratic governor, elected judges, a high incarceration rate, and corrections as a large percentage of expenditures are positively correlated with the presence of sentencing guidelines.

By asking what factors influence delegation in the context of sentencing, a question which is standard with regard to other regulatory agencies, we get a better understanding of what the politics of crime actually are and how administrative law theories of delegation apply - or do not apply - in the context of agencies charged with administering criminal justice issues.

Number of Pages in PDF File: 53

Keywords: sentencing, delegation, criminal law, administrative law

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Date posted: June 1, 2006  

Suggested Citation

Barkow, Rachel E. and O'Neill, Kathleen M., Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation. Texas Law Review, Forthcoming; NYU Law School, Public Law Research Paper No. 06-14; NYU, Law and Economics Research Paper No. 06-23. Available at SSRN: http://ssrn.com/abstract=905330

Contact Information

Rachel E. Barkow (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
212-992-8829 (Phone)
Kathleen M. O'Neill
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
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