Social Science Research and the Legal Threat to Presumptive Sentencing Guidelines

Research Summary: The general tone of articles by policy makers is satisfaction that presumptive sentencing, as practiced in the United States, although threatened, has not been greatly damaged by Blakely v. Washington and related cases. Sentencing research, because it usually does not consider how discretion operates before and after the sentencing stage, does not actually provide an empirical basis for such satisfaction. Illustrations from several jurisdictions show that the presumptive sentence guidelines may not have been as effective at reducing discretion and disparity as policy makers seem to believe. In addition, the policy choices embedded in the sentencing grid itself can contribute to disparity, and the grid can and should be analyzed to assess its role. Policy Implications: Although not definitive, these analyses suggest that policy makers need to be more cautious with any conclusion about the relative benefits of presumptive versus voluntary guidelines. Analyses of sentencing variation must vary with the institutional setting. In a presumptive sentencing state, more of the total sentencing variation is likely to be contained in the grid or exercised in the charge bargaining stage (or earlier) compared with a less‐structured sentencing system, where appreciable variation may remain at the sentencing stage.