Sentencing Rules and Standards: How We Decide Criminal Punishment

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all? In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing Guidelines in order to correct the substantive and formal errors that result from rule-based decisionmaking, instead sentencing in such cases based on the § 3553(a) standard. I argue that judges should be more willing to take departures and variances in cases involving particularly large or particularly numerous sentence adjustments, which exacerbate the impact of rule-based errors