The Failure of Sentencing Guidelines: A Plea for Less Aggregation

To a considerable extent, the Federal Sentencing Guidelines have substituted punishment based on aggregations of similar cases for individualized punishment. This paper argues that the movement from individualized to aggregated sentences has marked a backwards step in the search for just criminal punishment. Some things are worse than sentencing disparity, and we have found them. The paper does not, however, advocate a return to the pre-guidelines system of broad sentencing discretion. Instead, it proposes a less ambitious system of sentencing guidelines?one in which a sen tencing commission's resolution of specific, recurring sentencing issues and of paradigmatic cases would provide benchmarks for sentencing judges. Aggregation?the treatment of many cases all at once?is often appropriate. Indeed, all legal rules aggregate. Treating unlike cases alike sometimes can promote economy and simplicity of administration. The federal sentencing guidelines, however, do not save work or money. To the contrary, 90 percent of the judges who responded to a survey by the Federal Courts Study Committee reported that the guidelines had made sentencing procedures more time consuming. In addition, our overburdened federal appellate courts now decide thousands of cases each year concerning application of the guidelines.2 The principal argument for the sentencing guidelines has not been simplicity or ease of admini stration. It has been that, although aggregated sentences may prove unjust in many cases, guide lines limit the play of judicial personality and inhibit discrimination on invidious grounds. The injustice produced by grouping unlike cases, in other words, has been justified as a means of promoting equality and preventing greater injustice.