Vol. 9, No. 5, Pg. 43. State Sentencing Guidelines-The Case Against Them.

• Author: By Russell D. Ghent

South Carolina Lawyer

1998.

Vol. 9, No. 5, Pg. 43.

State Sentencing Guidelines-The Case Against Them

43State Sentencing Guidelines--The Case Against ThemBy Russell D. GhentThe sentencing reform movement began in this country during the early 1980s. A 1982 study published by the Department of Justice showed that the time served by state prison inmates in 1982 was at a historic low, 16 months, and further demonstrated that nearly 50 percent of those convicted of murder in state courts served less than six years in prison.

As a result of this, Congress held extensive hearings culminating in passage of the Sentencing Reform Act of 1984. This act created the U.S. Sentencing Commission, and in 1987 the first federal sentencing guidelines became law for sentencing federal offenders in federal criminal cases throughout the country.

As all of this was taking place, South Carolina was already addressing the concerns of those who espoused a "get tough" policy for sentencing criminal offenders. South Carolina passed legislation that markedly increased the number of mandatory minimum sentences to be imposed for certain crimes (most often drug or firearms offenses) and also began experimenting with the concept of sentencing guidelines.

Although South Carolina implemented many changes in sentencing it did not choose to adopt guidelines, other than perhaps a brief experiment that was approved, apparently reconsidered and then abandoned. Without sentencing guidelines, by 1992 South Carolina was regularly leading the nation in the proportion of residents sent to prison, a trend at that time projected to cost taxpayers $500,000,000 by the turn of the century just to keep up with the expansions needed to house the inmate explosion. In short, even without sentencing guidelines, South Carolina has a system which, according to the basic yardstick of those who contend that they are in favor of law and order, is working at "peak efficiency."

Having worked on the original Federal Sentencing Guidelines effort in Washington for two years, I am satisfied that the unwarranted disparity that gave rise to the Sentencing Reform Act, and to the U.S. Sentencing Commission and federal sentencing guidelines, was adequately demonstrated and documented.

Even the most cursory review of the legislative history shows the level of previous disparity in sentencing of federal offenders. Congress chose to cast aside the rehabilitation model, which had driven federal sentencing for many years and gave the U.S. Sentencing

Commission a series of specific issues to be addressed under guidelines to be promulgated.

Some experience with the workings of federal government, and as a prosecutor and criminal defense attorney over the last 20 years, has left me satisfied that rote federalization of criminal law is not in the best interests of any state and especially is not in the best interests of South Carolina. The guidelines that have been proposed in South Carolina may be well intentioned, but they will prove to have disastrous consequences for the state criminal justice system. They do not adequately focus on specific goals to be accomplished in implementing them, have not adequately balanced the risks to the effective administration of justice, have not appropriately considered potential costs to the citizens of South Carolina and have failed to demonstrate any genuine benefits to be realized from this experiment.

The current legislative plan is one that has resulted after 14 years of inconclusive reviews, committee meetings and studies and proposes guidelines that "should be simple, comprehensive, and . . . should strive to retain judicial and prosecutorial discretion." The proposed guidelines fail in all of these respects and do not further "truth in sentencing."

The proposed guidelines have two fundamental defects built into

44what amount of time would he actually serve in prison? The victim of...