Sentencing guidelines at the crossroads of politics and expertise.

• Author: Barkow, Rachel E.

INTRODUCTION I. DATA II. RACE III. WHEN POLITICS AND EXPERTISE CONFLICT IV. THE LIMITS OF GUIDELINES A. Guidelines Cannot Capture All Human Behavior B. Acknowledging the Power of Prosecutors C. Respecting the Role of the Jury CONCLUSION INTRODUCTION

When Minnesota created the first sentencing commission in 1978 and the first sentencing guidelines in 1980, it was hard to predict where the guidelines movement would go. More than three decades and twenty sentencing guideline regimes later, (1) it is still not easy to foresee what will become of sentencing commissions and guidelines. The past decade alone has witnessed tremendous changes in sentencing law and policy that were hard to imagine even just a few years before they occurred. The Supreme Court's landmark sentencing decisions in Apprendi v. New Jersey, (2) Blakely v. Washington, (3) and United States v. Booker, (4) the reform of federal crack cocaine laws, and a financial crisis that has sparked significant sentencing reforms have all been monumental and, to some extent, unexpected developments. These seismic shifts will undoubtedly alter the landscape going forward in similarly unpredictable ways.

As this Symposium looks to the future and what it holds for sentencing guidelines, it is important to proceed with caution and a healthy dose of modesty. None of us really knows what will happen. But one helpful way to approach the future is to reflect on some of the key lessons we have learned in the more than thirty years with sentencing commissions and guidelines. There have been consistent themes and struggles, and there is no reason to believe these core issues will dissipate going forward. In this Article, I highlight these struggles and analyze how they can productively guide the future of sentencing guidelines.

Although I divide this Article into four different topics, they are united under one umbrella: the tension that arises from the fact that sentencing commissions must produce guidelines that are simultaneously reflective of the best empirical and expert knowledge about sentencing and acceptable to political overseers. The battle between expertise and politics is a familiar one for all administrative agencies, but it is particularly fraught for sentencing commissions. This is because the politics of crime is, in William Stuntz's memorable phrasing, "pathological," (5) and because the expertise involved is less scientific--or at least appears to be less scientific--than in other regulatory fields. (6) Striking the proper balance between these often-competing forces must be the central mission of every sentencing commission as it crafts guidelines. This Article's central inquiry is how commissions manage the tension between expertise and politics given what we know about commissions and guidelines.

Part I begins by considering a topic that provides common ground for both experts and politicians: data. Guidelines are at their best and most effective when they are based on sound empirical data and professional expertise. Achieving that outcome often requires commissions to consider what empirical information most influences political actors. Whether the data represent the fiscal impact of proposed sentencing laws or the effect of sentencing laws on different populations, empirical information has had a profound impact on sentencing law and policy and will undoubtedly continue to do so.

Part II turns to a related empirical question: the relationship between race and sentencing guidelines. A concern with racial disparities was a driving force of the guidelines movement, and it is thus a topic of political importance. Yet we remain uncertain today whether guidelines have eased or exacerbated racial disparities. Sentencing commissions can no longer stand on the sidelines of this question. While commissions cannot make policy calls about what to do with the racial disparities in the criminal justice system, they are ideally placed to study sentencing patterns and practices to better understand the relationship between sentencing guidelines, their enforcement, and the racial composition of the prison population. It should be the goal of every sentencing commission to use its expertise to arm elected representatives with as much data as possible on the question of race and criminal justice so those officials can make decisions informed by facts, not assumptions or inaccurate impressions.

While Parts I and II focus on the ways in which expertise and politics can come together, Part III confronts the question of what commissions should do when there is a conflict between politics and expertise in crafting guidelines. Commissions must adapt to the political environment in which they operate to achieve real-world change. But commissions should not let politics override the agency's expert mission unless the agency's political overseers demand it and no other viable options present themselves. The relationship between guidelines and mandatory minimums offers an example of this dynamic. Mandatory minimums are often set by legislatures based on political factors that conflict with a commission's expert judgment about how best to set guidelines. This Part argues that guidelines should stay true to expert assessments and that mandatory minimums should trump the guidelines only in cases in which the mandatory minimums are expressly applicable. An entire system of guidelines should not be determined by legislative judgments that are contrary to sentencing expertise unless the legislative body makes it clear that it desires this outcome. Commissions must respond to political will, but that does not mean that they should compromise their professional judgments unless the legislature directly commands them to do so.

Part IV concludes by exploring important limits on what guidelines can accomplish. If we have learned anything from the past that can inform our future expectations, it is that there are limits to what guidelines can do, even when they are based on the best empirical information available. Guidelines must strike the difficult balance between individualization and uniformity. Ultimately, it is critical to recognize that no amount of expertise can fully resolve this tension. Guidelines will never be perfect and comprehensive, and there will always need to be some play in the joints.

Guidelines have been limited in another way: they govern judges, and sometimes parole officials, but they do not address prosecutorial discretion. To be sure, commissions could and should do more to address the relationship between guidelines and prosecutorial power. But here too there are limits to what a commission can accomplish with guidelines, even when armed with all the data in the world. Because some amount of prosecutorial discretion is necessary and inevitable, guidelines must account for that reality.

Finally, it is important for commissions and guidelines not to neglect an often forgotten actor in the criminal justice system: the jury. The jury is the quintessential foil to a model based on expertise, as it is comprised of lay people with no specialized knowledge of crime or punishment. Yet it is important to remember that at the heart of any criminal justice system are questions of morality and justice that are not amenable to charts and data but rather are suited for juries comprised of members of the community. Commissions must be attuned to the jury's role as well.

1. DATA

   Although political judgment and expert opinion often conflict, in the sentencing guidelines context they come together through data. Many kinds of data might reflect expert knowledge, yet only certain types of data have currency in political debates over crime. Information on the costs of proposed sentencing reforms is the most effective data sentencing commissions can produce to obtain legislative approval of guidelines.

   Nearly every state with a sentencing commission has made a cost projection system a central part of its mission. Minnesota's demonstrated success in pioneering and using fiscal forecasting to maximize the effectiveness of the state's limited resources has led other states to follow suit. (7) These state sentencing commissions and their respective legislatures value cost projection data because the data allow them to allocate efficiently their limited crime-fighting resources to establishing guidelines. (8) State legislators have frequently modified proposed laws in light of expert forecasting by a state sentencing commission. Sometimes states increase sentences in light of cost data, knowing that they can afford the expense. Other times, states decrease sentences for some crimes, often nonviolent crimes, to prioritize scarce prison resources for violent crimes and to reduce crime at a lesser cost. The data thus assist elected officials no matter what their policy goals.

   States that have used these forecasts to maximize their resources have not experienced an increase in crime rates. Indeed, during the last twenty years--the period over which most states have made use of these estimates--crime rates have largely declined or stabilized. Between 1992 and 1999, homicide rates declined to 1960s levels. (9) The national crime rate reached a historic low in 2000. (10) During this period of lower crime rates, states used cost projections to make the most of their limited resources by slowing both the growth of their incarceration rates and the rate of spending on corrections. (11) Indeed, these forecasts have been so useful that the American Bar Association has included the use of cost forecasts as a key recommendation in its proposed Model Sentencing Act. (12) The Act requires an impact analysis on the theory that "it is in every state's interest to coordinate resource and policy decisions." (13)

   These forecasts have not only influenced particular sentencing debates, they have also improved the overall political standing of state commissions with their respective...