After the Implosion: Trailing-Edge Guidelines for a New Era

Abstract

This short article argues that the federal sentencing guidelines are both unprincipled and unstable (and certainly unloved) as currently constructed. The author suggests that the current leading-edge guidelines, in which advised sentences are fixed by a commission which leads judges to a sentence, be replaced by trailing-edge guidelines, in which the advisory baseline sentence would be created through a real-time electronic survey of judges' current practices in similar cases. Trailing-edge guidelines could provide uniformity and maintain the procedure of the current system while giving judges more discretion both in individual cases and in the way their decisions shape the guidelines themselves.

Keywords: sentencing, guidelines, sentencing guidelines, criminal law, federal

JEL Classification: K14