The past, present, and future of sentencing – Law Journal for Social Justice


By Alexandra Wilson

When a court convicts someone of a crime, the convicted person faces a legal consequence known as their “sentence.” Sentences can vary drastically based on the type of crime committed and many other accompanying circumstances. Examples of criminal sentences include fines, probation, rehabilitation programs, incarceration, and even the death penalty. The government and others purport that criminal sentences deter future criminal behavior as well as punish the perpetrators of crime.

Sentencing guidelines have become more strict in recent decades, leading to potential discrimination based on race, socioeconomic status, and other factors. Now, sentencing reform groups are advocating for greater flexibility in deciding punishment and rehabilitation options for those convicted of crimes. (Photo: Tingey Injury Law Firm via Unsplash.)

Sentencing used to be highly discretionary, allowing judges to impose penalties as they saw fit, but this “indeterminate” method led to a lack of uniformity in sentencing across the country. In the Sentencing Reform Act of 1984, Congress attempted to address the problem in federal courts by establishing the United States Sentencing Commission, a bipartisan, independent agency, to create guidelines for federal sentencing.

The Commission still exists today and is tasked with collecting and analyzing data to establish and amend sentencing guidelines to “promote transparency and proportionality in sentencing.”

Several state legislatures have developed state-specific sentencing guidelines for “determinate” sentencing that would limit or remove sentencing discretion for state judges. By controlling the sentencing guidelines judges must follow, states can rely on applicable data to make informed decisions. For example, Colorado minimized the penalties for low-level drug offenders after determining that many of the crimes would be better addressed with community-based treatment rather than prison time.

However, even with sentencing guidelines, judges are given a good amount of discretion. They can take factors into account such as the characteristics of the offender, including prior offenses or personal circumstances. Judges can also consider the nature and seriousness of the crime. This can be beneficial, especially for first-time, non-violent offenders, if the judge chooses a more lenient sentence.

Despite the implementation of determinate sentencing guidelines, data shows that there is still much work to be done. A broad research study from the U.S. Department of Justice found that, with other factors considered, African-Americans and Latinos were given harsher sentencing than white offenders.

An Arizona-specific study also found racial disparities in sentencing along with a drastic increase in prison populations. The study found that the increase was not due to an increase in criminal activity but to changes in sentencing policies, some of which required minimum sentences or specific provisions for habitual offenders.

So, although sentencing guidelines provide uniformity and structure to sentencing, they are in part responsible for the vast number of people currently incarcerated in America.

A large community of people is fighting for sentencing reform to combat these negative side effects. Some of the policy proposals include medical or compassionate releases to reduce the number of people in jails by releasing those who are severely ill or elderly. There has also been a trend of reforming drug policies to parallel changes in drug laws. Additionally, there has been a large push to reform sentencing for youth offenders. Recent reforms in 27 states and the District of Columbia now ban life sentences for people who committed their offense when they were 18 years old or younger.

Determinate sentencing brought greater uniformity and predictability to the justice system’s response to crime. However, the guidelines led to drastic growth in the number of people sent to jail or prison and the time they were required to serve.

With the expansion of the sentencing reform movement, however, it will be interesting to see what the future holds for sentencing policies in the U.S. We can only hope to reach a middle ground—a justice system in which judges do not have unchecked power to implement unfair sentences but also are not forced to apply unjust sentences in light of all the circumstances.

Alexandra is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. She graduated from Chapman University in 2021 with a B.A. in psychology and a minor in law, justice, and social control. During her undergraduate career, Alexandra interned at the Orange County District Attorney’s Office where she cemented her desire to pursue a legal career. Outside of law school, she loves to volunteer with the Arizona Humane Society, try new recipes, and spend time with friends and family.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice (“LJSJ”) is the first student-run and student-created online journal at Sandra Day O’Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.
View all posts by Law Journal for Social Justice at Arizona State University



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