The New Lawlessness in Sentencing

Abstract

Half a century ago, critics decried "lawlessness" in sentencing, arguing that unchecked judicial discretion led to disparity and randomness. In response, Congress passed the Sentencing Reform Act of 1984 and created the U.S. Sentencing Commission, culminating in a rigid system of sentencing guidelines that quantified and weighted nearly every aspect of criminal offenses. Yet this new legal architecture almost entirely neglected the other, more complex half of the sentencing equation: how to factor in the history and characteristics of the defendant, such as a traumatic upbringing or a history of untreated mental illness. For years, the federal sentencing guidelines minimized the importance of those kinds of mitigating background characteristics, telling judges that they shouldn't be considered in most cases. But in 2025, the Commission passed a major amendment eliminating all guidance about defendant background characteristics, ushering in a new era in which judges have total discretion without guidance-a new lawlessness.