The Evolution of Sentencing Guidelines in Minnesota and England and Wales

Abstract

The history of sentencing guidelines has been an exclusively American story until recently. Since 2004, however, other countries have introduced guidelines for courts. This essay explores the contrasting approaches to guidance, as exemplified by the regimes in Minnesota and England and Wales. Unlike the Minnesota guidelines, the English regime adopts a quite different model, one which allows courts greater discretion at sentencing. The English guidelines are also offence-specific; each principal offence category has its own guideline. Courts in England are required to do more processing of the case than judges in Minnesota, following a step by step approach. Until systematic comparative research is available it is hard to determine which approach to structuring judicial discretion is preferable. To a large degree each jurisdiction has created the approach which best fits its sentencing environment. The Minnesota grids are more restrictive in nature, and generate high levels of judicial conformity and consistency. The English guidelines allow greater judicial discretion, possibly at the cost of some consistency. However, the English approach offers sentencers a wider range of guidance, including information on the use of different disposals, the sentencing of multiple crimes, the appropriate level of reduction to reflect a guilty plea and other issues. Neither the Minnesota Commission nor the English Council has been particularly self-critical over the years. The structure of the Minnesota main grid remains largely unchanged since 1980. As for England, although the structure of its guidelines has evolved considerably in structure, the Council has continued to ignore calls for its guidelines to play a more active role in controlling the use of custody as a sanction, and hence reduce the size of the prison population.

Critical Junctures and Path Dependence in Sentencing Policy: A Case Study1

“…The early history of the Minnesota Sentencing Guidelines Commission (MSGC) is recounted by Dale Parent (1988), the first commission director, and the subsequent evolution the state's sentencing guidelines has been the subject of numerous studies, many by scholars affiliated with the University of Minnesota and its Robina Institute of Criminal Law and Criminal Justice. In addition to the annual reports of the MSGC and Parent 's (1988) work, the account presented here draws largely from the work of legal scholars Richard Frase (2005Frase ( , 2009Frase ( , 2013Frase ( , 2019, Julian Roberts (2019), and Michael Tonry (2007, 2016). Wisconsin's sentencing system has not attracted the same level of scholarly attention.…”

“…Maine eliminated discretionary parole release in 1975, but Minnesota in 1980 was the first state to combine determinate sentencing with commission-based sentencing guidelines. Roberts (2019) attributes the decision to adopt a commissionbased guidelines model to Judge Frankel (1973), who argued that this model would result in predictable and consistent punishment and thereby resolve the problem of disparate sentencing. Frankel's work may have provided the sentencing commission's blueprint for reform, but Parent (1988) That enabling legislation established a bi-partisan, nine-member Commission (later expanded to 11 members) that was broadly representative of criminal justice interests, and required that Commission to develop presumptive sentencing guidelines and present them to the legislature for approval by January 1, 1980.…”

Punishing for the Past (Sometimes): Judicial Perspectives on Criminal History Enhancements

“…But already by this time, the springboard for prescriptive grids was the descriptive grid approach. We cannot know how history might have turned out differently if the earliest guidelines had used multiple grids for the multiple decisions, or used a non-grid guideline system such as those adopted in other nations (see Roberts, 2019).…”

Judicial Disparity, Deviation, and Departures from Sentencing Guidelines: The Case of Hong Kong

“…Touted to bring greater conformity and consistency in sentencing, the guidelines shifted the power to determine sentences from judges onto prosecutors, which led to criticisms that judges were rendered “expert clerks” (Gertner 2007: 536). Based on characteristics of the offender and the offense, the guidelines offered decision trees for judges to follow as they review the facts of a given case (for the detailed evolution of how this was adapted to better suit other jurisdictional contexts, see Roberts 2019). Roberts (2019) compared Minnesota's grid system to England and Wales’ “step‐by‐step decision trees,” revealing the greater room for discretion under the England and Wales’ application of guidelines.…”

“…Based on characteristics of the offender and the offense, the guidelines offered decision trees for judges to follow as they review the facts of a given case (for the detailed evolution of how this was adapted to better suit other jurisdictional contexts, see Roberts 2019). Roberts (2019) compared Minnesota's grid system to England and Wales’ “step‐by‐step decision trees,” revealing the greater room for discretion under the England and Wales’ application of guidelines. Though studies did show a modest increase in uniformity and consistency among judges after the guidelines were implemented (Anderson et al 1999), disproportionate sentencing did still occur, but due to presentencing practices by the prosecutor and law enforcement (Bibas 2005).…”