States provide example for sentencing guidelines

THE BALTIMORE SUN

Allowing federal judges great leeway in sentencing criminals does not have to breed chaos, according to judges and sentencing specialists in states that already have such systems.

When the Supreme Court said Wednesday that federal sentencing guidelines were merely advisory, many prosecutors and lawmakers predicted federal judges would start issuing wildly inconsistent sentences based on little more than sentiment and whim.

But the handful of states that already use such systems have produced notable conformity.

"There is a sense out there that an advisory sentencing guideline system can't work," said Richard Kern, the director of the Virginia Criminal Sentencing Commission, which oversees the system that most resembles the way federal sentences will be handled. "But our guidelines-compliance rate is higher than the federal system, which had a mandatory system."

In Virginia, judges follow the state advisory guidelines 81 percent of the time, Kern said. In the District of Columbia, which converted to an advisory system for local courts last summer, judges follow the guidelines 87 percent of the time.

"For defendants facing sentences under state advisory guideline systems," said Carmen Hernandez, a vice president of the National Association of Criminal Defense Lawyers, "85 percent of the sentences imposed in those systems end up being the sentences that would have been imposed under the guidelines."

Under the federal system that was considered mandatory, judges sentenced defendants within the guidelines only about 65 percent of the time.

Legal scholars, judges and sentencing specialists caution that there are substantial differences between the state systems and the new federal one and that compliance by federal judges, who have increasingly chafed under the mandatory guidelines, can be expected to decline. But they said the experience in the states suggests that the change in the federal system will be evolutionary.

In the past few days, federal judges have indicated that the guidelines will retain considerable force.

"In all but the most unusual cases," Paul G. Cassell, a federal judge in Salt Lake City, wrote in a decision Thursday, "the appropriate sentence will be the guidelines sentence."

William G. Young, the chief judge of the U.S. District Court in Boston, said he expected only minor changes in practices.

Among the states, Virginia appears to be an instructive model, said Daniel F. Wilhelm, the director of the state sentencing and corrections program of the Vera Institute of Justice, a nonprofit research group based in New York.

The system that the Supreme Court created for federal courts is very similar to what Virginia created 10 years ago, Wilhelm said. "What Virginia suggests is that you can balance concerns of public safety along with a sentencing guideline system that trusts judges with discretion," he said. "And there would be very few people who would accuse Virginia of not being a tough-on-crime state."

Other states with advisory guidelines have had less success in getting judges to apply them.

"Since they were voluntary, people didn't necessarily look at them," Judge Michael A. Wolff of the Missouri Supreme Court, the chairman of the state's Sentencing Advisory Commission, said of his state's guidelines, which were revised in June to try to get judges to use them more often. "The compliance rate was poor - I think less than half."

In general, though, the state systems say they are succeeding.

Michael Connelly, the executive director of the Wisconsin Sentencing Commission, said, "It's not necessarily the case that disparity and noncompliance are inevitable in an advisory system."

In 1984, when Congress enacted the guideline system, it rejected an advisory system, relying in part on testimony from Scott Harshbarger, then a district attorney in Massachusetts.

"Advisory and voluntary guidelines were not working," Harshbarger, now in private practice, said Friday. "You have to have some measure of uniformity, consistency and predictability. A system of voluntary guidelines is not good for public safety or confidence in the justice system."

Some scholars say much has changed in the state courts in the intervening years.

"Judges now get in line a lot more, for two reasons," said Douglas A. Berman, a law professor at Ohio State University. "One is, they're scared about having the federal system. Another reason is that, in the 1970s, with the focus on rehabilitation, the pervasive philosophy was to view every case individually. In the last 25 years, the thinking has changed, as we focus much more on the crime than the defendant."

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