Sentencing Reform Reform: The Sentencing Information System Alternative to Sentencing Guidelines
Marc L. Miller
University of Arizona - James E. Rogers College of Law
THE FUTURE OF IMPRISONMENT IN THE 21ST CENTURY, Michael Tonry, ed., Oxford University Press, 2004
Despite the high visibility of guideline sentencing reforms, about half the U.S. states still use systems primarily modeled on an indeterminate sentencing model. Very little is known about sentencing in these still-indeterminate states, or why they have resisted such a powerful reform movement. Perhaps some states have obtained an unduly negative impression because one of the most widely discussed guideline reforms (the federal system) is one of the worst, and atypical in many key respects.
This article considers the viability of Sentencing Information Systems as a competing model of sentencing reform. Sentencing information systems provide judges with sufficient information to place an offense and offender into a larger context, and the most useful context for judges is how similar offenses and offenders have been sentenced before by the same judge, by other judges in the same courthouse, or by other judges in the same state or country. A judge faced with a new case can specify various offense and offender characteristics. For any combination of factors, the system will depict the range of sentences imposed.
Sentencing Information Systems have become more plausible in the context of the developing language of sentencing and in light of modern information technology. Significant SIS systems are in use in Scotland and New South Wales, Australia. No SIS has yet demonstrated the capacity to achieve the central goals of modern sentencing reform, and substantial questions exist about whether and how bottom up information systems might integrate reform goals such as efficient resource allocation. Nonetheless, SIS have many virutes, including some of the virtues of markets more generally, and this article encourages continued experimentation with SIS.
Information systems may have their greatest role to play in conjunction with guideline systems. An SIS would offer judges the kind of confidence in sentencing guidelines that has been lacking in some U.S. systems, and help to reveal the extent to which guideline systems were failing. Sentencing information systems offer the possibility of illuminating sentencing variation beyond jurisdictional boundaries California judges might find what Washington State or North Carolina judges do of interest, U.S. judges might find Canadian and English sentences of interest, and judges on the new International Criminal Court might find the sentences of many countries of interest.
Unlike guidelines developed by a commission, independent groups can construct an SIS to inform judges and advocates in actual cases. Competing sentencing information systems could each try best to capture the interplay between rules, social norms and philosophical ideals. The system that best revealed the nature of sentencing decisions what matters to judges, what might matter, what ought to matter would come to be used by advocates in their arguments, by judges in their sentences, and by reformers in turn to critique and then improve upon the applicable rules. This happy, democratic vision of sentencing practice and reform need not be a chimera. To come to life it requires only full access to current and accurate sentencing information, including guideline information (in guideline systems), judge identifiers, and narrative or other records that would allow outsiders to code additional potentially relevant sentencing facts (perhaps from presentence investigation reports).
Date posted: April 26, 2005