The Promise of Trailing-Edge Guidelines to Resolve the Conflict between Uniformity and Judicial Discretion

54 Pages Posted: 3 Feb 2012

See all articles by Mark William Osler

Mark William Osler

University of St. Thomas - School of Law (Minnesota)

Date Written: 2012


Until the mid-1980’s, federal judges had broad discretion in sentencing defendants. However, this created disparities in sentencing from one judge to another, and this created a desire for much greater uniformity. This drive for uniformity resulted in a number of strict legislative measures, including mandatory minimum sentences and mandatory sentencing guidelines. Over time, the judiciary branch grabbed back some discretion (largely through the Supreme Court’s Booker decision in 2005, which made the sentencing guidelines advisory rather than mandatory), but this has resulting in a return to disparities.

The underlying problem is a view of sentencing that sees a zero-sum equation between judicial discretion and uniformity - that is, the belief that uniformity must be established by curtailing judicial discretion. This article argues for a different model: Sentencing guidelines that use peer effects and modern technology to directly use judicial discretion to create uniformity. Instead of mandated, arbitrary guidelines, a computer-based sentencing information system would require a sentencing judge to review and consider all the other sentences chosen by judges in similar situations, and this body of experience would functionally become the guidelines. A judge who strays too far from the norm would have to justify that choice based on unusual and compelling circumstances. Such a system would harness discretion as the engine towards uniformity, and discard the false dichotomy between the two that has created so much discord.

Keywords: sentencing, federal sentencing, criminal sentencing, sentencing guidelines, sentencing disparities, sentencing discretion, trailing-edge guidelines

Suggested Citation

Osler, Mark William, The Promise of Trailing-Edge Guidelines to Resolve the Conflict between Uniformity and Judicial Discretion (2012). U of St. Thomas Legal Studies Research Paper No. 12-02, Available at SSRN: or

Mark William Osler (Contact Author)

University of St. Thomas - School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
(254) 717-7032 (Phone)

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