Sentencing Rules and Standards: How We Decide Criminal Punishment

54 Pages Posted: 7 Jan 2015 Last revised: 5 Apr 2016

See all articles by Jacob Schuman

Jacob Schuman

The Pennsylvania State University (University Park) – Penn State Law

Date Written: January 5, 2015

Abstract

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing Guidelines in order to correct the substantive and formal errors that result from rule-based decisionmaking, instead sentencing in such cases based on the § 3553(a) standard. I argue that judges should be more willing to take departures and variances in cases involving particularly large or particularly numerous sentence adjustments, which exacerbate the impact of rule-based errors.

Keywords: criminal law, criminal procedure, sentencing, rules, standards

Suggested Citation

Schuman, Jacob, Sentencing Rules and Standards: How We Decide Criminal Punishment (January 5, 2015). Tennessee Law Review, Vol. 83, p.1, 2015, Available at SSRN: https://ssrn.com/abstract=2545671 or http://dx.doi.org/10.2139/ssrn.2545671

Jacob Schuman (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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