Conference on the Federal Sentencing Guidelines, Panel 3: The Allocation of Discretion Under the Guidelines

The guidelines have shifted the locus of discretion from the judge to the prosecutor. This transfer has drastically changed sentencing because the prosecutor\u27s role is very different from the judge\u27s role. Before the guidelines, the prosecutor\u27s role in sentencing was minimal. The prosecutor could put a cap on the sentence by accepting a plea to a charge with a low maximum, but there was virtually no instance in which the charge would put a floor under the judge\u27s sentence. The judge, on the other hand, could sentence however he liked. Not only was the judge\u27s decision correct because it was final – there was no appellate review of sentences within the statutory maximum – it was correct because there was no law by which it could be called incorrect. Absent a few factors that were statutorily excluded from consideration, the judge could take into account any factor he thought relevant, and weigh it to whatever degree he thought it counted. The judge could be harsh or lenient, a retributivist or a utilitarian, a believer in deterrence or rehabilitation