Criteria for Effective Advisory Guidelines Systems

I intend in a future post to speculate a bit on the future of sentencing guidelines of all forms, but it seems that the trend for now is for adopting and considering states to go with advisory guidelines rather than prescriptive ones. This is not the recommendation of the best-known students of guidelines, but it does seem understandable in light of judicial backlash against prescriptive systems and of the possible constitutional issues still out there with Blakely and Booker. In that light, I'd like to review points that Kim Hunt, executive director of the DC commission, and I made spring 2005 regarding the viability of advisory guidelines and the factors necessary to make them work in the Federal Sentencing Reporter (Vol. 17, No. 4). Those thinking about future guidelines, like CO or CA, should consider them carefully (as well as read the entire article) before going that way. It's harder work than most states may be willing to take on. That said, here are the essential criteria we outlined:

• good sentencing data system for reporting and projecting
• transparency in the reporting for sentencing data and judicial departure
• adequately funded and effective alternative sentencing options in which judges have confidence (including trained personnel and regular program evaluation)
• good pre-sentence information and assessment by specially trained correctional or court personnel
• judicial buy-in based on an active commission that maintains regular communication and feedback with practitioners
• goals for sentencing clearly set by the sentencing commission and/or the state's highest court
• meaningful appellate review and reversal of egregious sentences
• use of sentencing data and reports in judicial training
• acknowledgement that high departure rates for a few offenses do not necessarily mean failure of an entire advisory system if special circumstances accompany the departures (such as enormous drug caseloads pressuring more generous plea bargaining)
• attention to and action against racial and/or other disparity in all points of the state criminal justice process
• an effective sentencing commission with strong representation from the state criminal justice community and influential and supportive representatives from the legislative and executive branches

As we concluded, "Institution of these factors does not, of course, guarantee effective outcomes for advisory sentencing systems. However, where they have been present, at least in part, states have achieved many of the objectives generally set for presumptive guidelines systems." We have not backed away from that belief in the subsequent month.