- In the two decades prior to the Sentencing Reform Act of 1984, Congress discussed the idea of establishing uniform sentencing guidelines among the federal courts. The discussions were in response to the vast discrepancies and unpredictability associated with federal sentences. As Chief Justice Warren noted, "Substantial differences in sentencing for which no adequate reason can be given . . . detract from the objective of equal treatment. We ought to be able to develop approximate sentencing criteria for various offenses and eliminate those sentences which are clearly inappropriate."
The American Bar Association endorsed the concept of sentencing guidelines in 1979 and in 1984 the Sentencing Reform Act was enacted. The Act created the United States Sentencing Commission, which was charged with drafting sentencing ranges for various offenses. - The sentencing guidelines take into account the seriousness of the offense (for which there are 43 levels) and the defendant's criminal history. Additionally, there are numerous adjustment factors. For example, if the defendant obstructed justice or knew that the victim was particularly vulnerable, this will affect the recommended sentence range. Essentially, the judge has a list of factors before her, all of which have prescribed points. The applicable points are added up to reach the sentence range.
- In United States v. Booker, the United States Supreme Court held that mandatory sentencing guidelines are unconstitutional under the Sixth Amendment right to a jury trial. Thus, the federal sentencing guidelines, which were intended to be mandatory, are now considered advisory. The court did, however, note that while federal courts are not bound to apply the guidelines, they must consult the guidelines prior to sentencing.
- Prior to the court's decision in Booker, the guidelines had eliminated extraordinarily disparate sentences imposed on similarly situated defendants. Many fear that the differences in sentencing will return now that the guidelines are only advisory.
According to Andrew C. McCarthy, an attorney and editor of National Review Online, another criticism of the federal sentencing guidelines is that they allow a judge to consider factors in determining a sentence that the jury would not be allowed to consider. For example, while the sentencing guidelines ask the judge to consider prior convictions, jurors in criminal cases are often not allowed to consider (and in some cases not even be made aware) of a defendant's prior convictions. - In 2003, the Sentencing Guidelines Council was created in the United Kingdom. Much like the United States Sentencing Commission, the Sentencing Guidelines Council gives guidance with respect to sentencing to the courts of England and Wales.
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