Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip

Abstract

The federal sentencing guidelines have been controversial and widely-criticized since they became effective in 1987. One core problem with the guidelines is that there are too many (at least 31) distinct policy mandates from Congress directed at the Sentencing Commission. Many of the principles embodied by these mandates are in direct conflict. Much like the Pointless Man in Harry Nilsson's The Point (a character created while Nilsson was on an acid trip, who has arrows pointing in every direction and thus no point at all), sentencing policy has so many directives that it has no moral basis at all.

This article argues for starting over with the sentencing guidelines from scratch, in a project that can take advantage of state and federal experience over the past 20 years, the scholarship that has developed around sentencing, and can begin with a few understandable directive principles. Though such a project would likely result in a system which allows more judicial discretion, it is our best hope for a federal sentencing system that can combine principle and action with real moral authority.

Keywords: sentencing guidelines, sentencing, discretion

JEL Classification: K14