Constitutionality of Sentencing Guidelines in America

Constitutionality of Sentencing Guidelines in America
by Shaun E. Sundahl
June 28, 2011



Research by Parent, et al (1996) indicates both positive and negative outcomes attributed to sentencing guidelines. On the positive side, sentencing guidelines were effective in increasing sentencing uniformity and proprortionality (1). Racial, ethinical, and gender differences generally decreased, however for congressionally imposed mandatory minimums for crack cocaine offenses, African Americans were adversely affected (2).  Others such as Myers & Wilkins, (2000) investigated whether or not sentencing guidelines has an adverse affect on family structure. They also question if society is being served by punishing and rehabilitating offenders (39). After all, when we punish or rehabilitate an offender we take that person away from the family, a social structure of value that helps keep offenders from committing crimes. In the end, a sentencing guideline will cause a parent to become absent from the family; thus creating a single parent environment.  Does the end result of a sentencing guideline; hence imprisonment, directly or indirectly destabilize the family? Does sentencing reforms affect family structure?  The Myers and Wilkins study answered both issues with stating there is no evidence to prove an affirmative answer to both questions (40). Here, we will explore the goals of sentencing, the types of sentencing, and the constitutional rights of sentencing guidelines.

Goals of sentencing

The goals of sentencing change from time to time; however historically they have included deterrence, incapacitation, rehabilitation, and retribution. Under deterrence theory, we punish criminals so they can reflect on the crime they committed and be persuaded from committing future crimes. Singer & La Fond (2010), mention the penalty must be serious enough to dissuade people from commiting a crime or future crimes. A “seriously enough” penalty is one where the pain is greater than the perceived pleasure of commiting the crime (21). Another rationale for a deterrence theory is deterrence.  Those contemplating a crime, will be disuaded if they perceive the penalty is serious. This is based on the perception of how people are being punished for the crime they are contemplating. Under Singer & La Fond’s argument, a driver contemplating on speeding will be dissuaded from speeding if he knows of other people who received large penalties for speeding in similar areas.  In addition to detterence theory, incapacitation theorists argue a prisoner will be prevented from commiting crimes for as long as they are confined behind the walls of incarceration.  Someone who is sentenced to four years in prison is phyically incapable of commiting furture burglaries for the next four years. Between 1800 and 1975, criminologist considered a different goal for sentencing called rehabilitation. If given proper treatment offenders can be changed into ‘non offenders’ with the proper treatment The percpetion is crime is a ‘social disease’ and can be cured (25). On the other hand,  retributionists believe those who choose do wrong, deserve to be punished even if punishing them does not serve a utilitarian purpose such as detterence, incapacitation, and rehabilitation.  When someone commits a crime such as theft, the offender has gained an unfair advatange  over another (27).  The only way to “make-up” the unfair act, would be to punish the offender. Considering the overall effect on retribution, utilitarians would probably side with Mahatma Gandhi when he said, “an eye for an eye will make the whole world blind.”

Types of Sentencing

According to Worall (2007) there are four types of sentencing options: Indeterminate, determinate, mandatory, and sentencing guidelines. Indeterminate sentencing allows the judge to set the maximum sentence as authorized by the legislature. Or the judge may allow a prisoner to the minimum sentence authorized by law. A parole board will usually be the last form of authority to determine the actual sentence. On the other hand, determinate sentencing means a mandatory sentence must be imposed; this time the parole board cannot reduce the penalty. All offenders under this system are treated equally since individualized sentencing is absent. Morever, mandatory sentencing is a sub-category of determinate sentencing but the difference is the judge’s discretion is taken away (437). An example of mandatory sentencing would be California’s “Three Strikes” law.  Under this provision, if an offender commits two felonies qualiying under a “strike,” (usually violent felonies) then the offender will be sentenced to life for committing a third felony; irrespective of the nature. Finally, sentencing guidelines are the middle ground of determinate and interminate sentencing They recommend punishments for certain types of offenders.  Sentencing guidelines are either discretional or mandatory, varying from state and local levels. If a sentencing guidline is presumptive, it must be adhered to (438).The following parapgraph explorers the constitutionality of sentencing guidelines.

Constitution on Sentencing Guidelines

Constitutional protections and guidelines for those convicted of a crime do not end at trial; the convicted has due process protections at the time of sentencing. But the definition of due process at the time of sentencing has developed a radical overhaul over the history of the justice system. Historically, both federal and state courts had broad authority to sentence a prisoner based on the individual. At one point, the federal courts curbed this authority and mandated sentencing must be based on pre-established guidelines. However, the landmark case of Booker v. Washington (2005) reversed these mandatory guidelines and ruled sentencing guidelines are advisory. Hessick & Hessick (2011) help us understand the constitutionality of criminal sentencing. Individualized punishment appears to be the constituional norm these days.  Individualized punishments include statutes that provide a range of potential sentencing options for an array of crimes. Judges are allowed to base the sentence on particular facts in addtiion to the conviction (52). However, judges cannot rely on any facts; there appears to be a consensus in both the state and federal level, that although judges can order sentences based on additional facts they cannot use a prior conviction as the fact (53). Based on Hessick & Hessick’s research, someone who pushes another and takes their property; hence strong arm robbery, has a different and permissible sentencing fate than someone who shoots another and takes their property; hence armed robbery. The particular facts in the last hypothetical is someone is likely (1) seriously injured and a (2) gun is used. The judge is constitutional permissable to consider these aggravating circumstances in sentencing. Moreover, the judge’s sentencing discretion varies from jurisdiction to jurisdation.  In fact, the most significant departure from sentencing guidelines can be seen in the federal courts. Although federal judges are allowed to sentence those convicted, to individualized punishments, judges have a narrow range of sentencing option based on the facts.  Constitutional limitations on sentencing factors appear to be the exception, rather than the rule (56).

Constitutional Rights and Considerations

Courts have generally upheld the constitutionality of sentencing guidelines; however the guidelines have recently been under strict scrutiny (Lee, 1995). In general, a defendant has a Sixth Amendment right to a trial by jury.  The right has been extended for the jury to decide on the facts material to the crime charged.  An issue appears when judges decide on facts other than prior convictions for administering punishment. When the judge uses presumptive sentencing guidelines they are removing the right of a trial by jury.  In the most current United States Supreme Court case addressing sentencing guidelines, the court in Cunningham v. California (2007), asked if a judge can “augment a defendant’s sentence above the statutorily presumptive middle term based on additional findings of fact proven by a preponderance of the evidence (Georger, 2008, p. 702)?” Here the answer was no; therefore the court struck down California’s mandatory sentencing guidelines.

                                                                                               About the Author

     Shaun E. Sundahl is a criminal justice instructor at a college in Palm Springs, CA.  He is a frequent writer of criminal justice issues and policies affecting the accused. He is currently licensed in California as a Private Investigator specializing in the investigation of criminal defense manners. His office is located in Chino, CA. 

                                                                             Would you like to cite this article in APA Format?

Sundahl, S. (2011, June 24). Constitutionality of Sentencing Guidelines in America. Retrieved [enter date], from Sundahl & Associates:


Georger, K. (2008). Sentencing and Its Discontents:Cunningham v. California and the "Unreasonable" Erosion of the Sixth Amendment Right to Trial 
     by Jury and Determinate Sentencing Schemes
. Retrieved June 13, 2011, from Gonzaga Law Review:

Hessick, C. B., & Hessick, F. A. (2011). Recognizing Constitutional Rights at Sentencing. Retrieved 13 2011, June, from California Law Review:

Lee, G. D. (1995, May). U.S. Sentencing Guidelines Their Impact On Federal Drug Offenders. Retrieved June 13, 2011, from The Lectric Law  

Myers, S. L., & Wilkins, R. (2000, July 17). The Unintended Impacts of Sentencing Guidelines on Family Structure. Retrieved June 13, 2011,
     from University of Minnesota:

Parent, D., Dunworth, T., Mc Donald, D., & Rhodes, W. (1996, November). Key Legislative Issues in Criminal Justice: The Impact on Sentencing  
. Retrieved June 13, 2011, from National Institute of Justice:

Singer, R. G., & La Fond, J. Q. (2010). Criminal Law. New York, New York: Aspen Publishers, Inc.

Worall, J. L. (2007). Criminal Procedure: From First Contact to Appeal. Boston: Pearson.


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