Sentencingstructures denote the basic guidelines that help to provide therationale for imposing serious legal action against a defendant(Ashworth & Roberts, 2013 Ulmer, Painter-Davis, & Tinik,2014).They provide a reasonable path to reach a legal decision and aninformed framework to arrive at the desired sentence. In addition,they provide guidance on the minimum and maximum sentence based onany particular offence(Ashworth & Roberts, 2013).Two bodies formulate the guidelines used in sentencing: thelegislature and the judiciary. In most cases, the legislatureformulates the framework citing the limits but leaves thedeterminants at the discretion of the presiding judges(Ashworth & Roberts, 2013).Leaving cases at the discretion of the presiding judge is verysignificant to ensure that cases and sentences are based on eachparticular individual and the merits of the sentencing based on theseriousness of the crime, blameworthiness, the reason behind theoffence and the impact on the victim. In this regards, guidelinesthat help judges to arrive at their sentencing decisions include:
Theseare the parameters set by a legislative body or a sentencingcommission. The commission submits the guidelines to the Congressfor approval and to prevent further congressional interference(Seghetti & Smith, 2007).In most cases, they set the penalty guidelines basing their decisionson other factors such as the seriousness of the offence, and thedefendant’s previous criminal records(Seghetti & Smith, 2007 Ulmer et al., 2014).The presumption is based on the standard sentence for presumablystandard cases, which the judge is expected to follow unless he hasvery serious documented reason for departing from the guidelines.Though the judges may depart from the set guidelines, their action issubject to appellate review.
Asthe name suggests, these are guidelines formulated by a legislativebody or institution. Unlike in presumptive where a commission isformed by the legislature to formulate the guidelines, the statutoryguidelines are directly formulated by the legislature (Campbell,2004). They are based on the motive behind the offence, the impactupon the victims and the previous criminal record almost similar tothe presumptive guidelines. In cases like these, there are minimalchances for the judges to depart unless the circumstances behind theoffence are extraordinary (Bowman, 2005). Again, the departure issubject to appellate review.
Advisoryor Voluntary Sentencing Guidelines
Advisorysentencing guidelines allow a judge to make an independent butinformed sentencing without necessarily following the establishedguidelines, thus the name voluntary (Bowman, 2005). The advisory partemanates from the fact that a presiding judge in his sentencing maychoose to refer to the set guidelines just on advisory basis beforedeclaring his sentence (Campbell, 2004). In most cases, this is thefactor behind most civil cases owing to their disparity from oneanother to warrant uniform sentencing guidelines
Inthis case, some states may have different set guidelines thatcompletely differ from those that exist in other states. Forinstance, according to the National Centre for State Courts, only 24states have adopted the presumptive, statutory and advisory/voluntary sentencing guidelines (Ulmer et al., 2014. Most of theremaining states have adopted only the presumptive guidelines onparticularly specific crimes or felonies (Campbell, 2004). Unlike inthe federal system, the state courts that have adopted thepresumptive guidelines do not enjoy the freedom to make anyalterations or review the circumstances upon which the guidelineswere set.
Ashworth,A., & Roberts, J. V. (Eds.). (2013). Sentencingguidelines: Exploring the English model.Oxford University Press.
BowmanIII, F. O. (2005). The failure of the federal sentencing guidelines:A structural analysis. ColumbiaLaw Review,1315-1350.
Campbell,A. W. (2004). Lawof sentencing(pp. 554-563). Thomson/West.
Seghetti,L. M., & Smith, A. M. (2007). Federal Sentencing Guidelines:Background, Legal Analysis, and Policy Options. LibraryOf Congress Washington Dc Congressional Research Service.
Ulmer,J., Painter-Davis, N., & Tinik, L. (2014). DisproportionalImprisonment of Black and Hispanic Males: Sentencing Discretion,Processing Outcomes, and Policy Structures. JusticeQuarterly,(ahead-of-print), 1-40.