A short history of American sentencing: too little law, too much law, or just right.

• Author: Gertner, Nancy
• Position: Centennial Symposium: A Century of Criminal Justice

For the centennial of this renowned Journal, I have been asked to tell the history of American sentencing---concisely, to be sure. The history of sentencing in the United States can be recounted from a number of perspectives. First, there is an institutional story--the story of the division of labor between all of the sentencing players. Sentencing is, after all, a system; sentencing institutions work in relation to, and not independent of, one another. Players in the sentencing system include the traditional ones: judges, lawyers--both prosecutors and defense--as well as the Congress, the public, sometimes the jury, and most recently, administrative agencies. Second, and as a corollary of that division of labor, sentencing can be examined through the different sources of its rules and standards, which can be common law rules crafted by judges, statutes drafted by legislatures, regulations promulgated by agencies, or standards articulated by academic experts, like penologists, sociologists, political scientists--the kind of scholars who write in this estimable Journal.

Third, sentencing can be viewed through the lens of the changing substantive law, reflecting the shifting winds of penal theory, from rehabilitation, retribution, and deterrence, to incapacitation, and various permutations of each. Different theories of sentencing, in turn, confer power on different sentencing players. For example, rehabilitation theories necessarily enhanced the role of judges and parole officers, the purported experts in individualized punishment aimed at "curing" deviant behavior. Retributive theories did the same for Congress and the public, not to mention radio "shock jocks" and 24/7 cable television pundits. If the most important question was the culpability of the offender--what punishment this crime deserved--everyone was suddenly an expert, or so it seemed.

Finally, the political entity in whose name the punishment is imposed is critical: most law enforcement is the province of the state. A national federal sentencing system, owing to what some have called the "federalization" of crime, (1) has far different pressures--few financial pressures (the federal government prints money, after all), and many more political pressures--than a state one, and necessarily produces a different sentencing regime.

This Article will range over the various stages of American sentencing over time, focusing mostly on federal sentencing, and having these issues in mind division of labor, source of sentencing standards, substantive law, and federal-state divisions and their shifting permutations.

1. COLONIAL JURIES AND SENTENCING

   In colonial times, and particularly in the period before American independence, juries were de facto sentencers with substantial power. (2) Many crimes were capital offenses. (3) The result was binary--guilty and death, or not guilty and freedom. There were few scalable punishments, or punishments involving a term of years. (4) This is so because penitentiaries were not common until the end of the eighteenth century. (5) Jurors plainly understood the impact of a guilty verdict on the defendant because of the relative simplicity of the criminal law and its penalty structure, and often because of the process by which they were selected. They were picked from the rolls of white men with property. Indeed, steps were sometimes taken to secure better qualified people to serve on juries. Juries were hardly representative in the sense that we understand today. (6) The substantive criminal law was the province of the states, and was, for the most part, state common law, often deriving from cases with which the jurors were familiar. (7)

   Like the modern jury, colonial jurors were authorized to give a general verdict without explanation, but unlike the modern jury, the colonial jury was explicitly permitted to find both the facts and the law. (8) If capital punishment were inappropriate, they would simply decline to find guilt, or find the defendant guilty of a lesser crime in order to avoid the penalty of death. (9) No one disparaged this as "jury nullification." Ignoring the law to effect a more lenient outcome was well within the jury's role. (10) In fact, several colonies explicitly provided for jury sentencing. (11)

   Thus, in the colonial division of labor, juries had a preeminent role. (12) There was no need for a priori punishment standards or rules, because there was, for the most part, a single punishment. Penal philosophy, at least as a formal matter, was retributive. There was little national federal law, even after independence. Most criminal law derived from the common law and in time, statutes from state legislatures--law with which jurors were familiar. (13)

2. THE ERA OF INDETERMINATE SENTENCING

   The turn of the nineteenth century brought scalable punishments--penitentiaries and, in time, reformatories--and thus, a more complex set of sentencing outcomes. (14) The jury could no longer link conviction to a particular sentence even if it had the power to sentence or decide questions of law--and it did not. Now, they were explicitly instructed to find only the facts; judges determined the applicable law. Federal substantive criminal law began to evolve, although most criminal prosecutions were still state-based. And the jury changed: it was more diverse as barriers to serving as jurors were lifted for minorities and women, as were property restrictions. (15) With more and more access to education, a professional class of judges and lawyers evolved, and with it, the power of the jury declined, including the power to affect the sentence. (16)

   Over time, a different division of labor evolved as between judges and juries: juries decided liability; judges sentenced. Selection procedures sought to insure that the jury would be selected in direct proportion to what they did not know about the issues, or the parties. (17) And that was not too difficult in an urbanizing, diverse country. (18) Juries became more and more passive, deferring to the professional judge. (19)

   This was especially true by the early twentieth century, when the dominant penal philosophy was rehabilitation and an indeterminate sentencing regime took hold. (20) In indeterminate sentencing, the judge's role was essentially therapeutic, much like a physician's. Crime was a "moral disease," (21) whose cure was delegated to experts in the criminal justice field, one of whom was the judge. Different standards of proof and of evidence evolved between the trial stage and the sentencing stage, reflecting the very different roles of judges and juries. (22) The trial stage was the stage law students studied. It was the stage of constitutional rights, formal evidentiary rules, and proof beyond a reasonable doubt. At the sentencing stage, the rules of evidence did not apply; the standard of proof was the lowest in the criminal justice system: a fair preponderance of the evidence. The rationale was straightforward: it made no more sense to limit the kind of information that a judge should get at sentencing to exercise his or her "clinical" role than to limit the information available to a medical doctor in determining a diagnosis. (23)

   Unlike other common law countries, appellate review of sentences was extremely limited in American courts. (24) In the federal system, the "doctrine of non-reviewability" prevailed until 1987, when the Federal Sentencing Guidelines became effective. (25) Likewise, only a few states had appellate review of sentencing, and even then it was used "sparingly." (26) A trial judge's authority to sentence was virtually unquestioned.

   Consistent with this view of judges as the sentencing experts, Congress took a back seat, prescribing a broad range of punishments for each offense, and intervening only occasionally to increase the maximum penalty for specific crimes in response to public demand. Judges had substantial discretion to sentence, so long as it was within the statutory range. In effect, the breadth of the sentencing range left to the courts the task of "distinguishing between more or less serious crimes within the same category." (27) While prosecutors had discretion to bring the charges, which, given the broad definitions of crimes, was not insubstantial, and defense lawyers could argue for creative "therapeutic" solutions, the judge had the final word. And even the judge's sentence did not fully determine the length of time a defendant would serve. Parole was available depending upon the defendant's conduct while incarcerated.

   To sum up, judges and parole authorities had the most power relative to the other sentencing players. They were the acknowledged sentencing experts. There were few a priori rules or standards. Each case was resolved on its own merits; to the extent there were standards, they evolved from the day-to-day experience of sentencing individuals. There was little or no appellate review of sentencing. And the substantive law of sentencing was shaped by rehabilitation, a penal philosophy that necessarily reinforced the judge's role and limited Congress's and the public's. After all, neither was in a position to second guess the judge concerning what would rehabilitate an individual defendant. Finally, although federal criminal power was growing, most criminal law was state originated.

   As I have written elsewhere, (28) there were problems with indeterminate sentencing, problems that sowed the seeds of the next institutional shakeup. In fact, judges had no training in how to exercise their considerable discretion. Whatever the criminological literature, judges did not know about it. Sentencing was not taught in law schools; and to the extent there was any debate about deterrence and rehabilitation--such as on the pages of this Journal--it was not reflected in judicial training. (29) "It was as if judges were functioning as diagnosticians without authoritative texts, surgeons without Gray's Anatomy." (30)

   In...