The debate about the Federal Sentencing Guidelines was, and continues to be, largely a debate about the two conflicting founda- tions of fairness in sentencing: a system needs enough flexibility to take into account material differences between individual criminals, but not so much flexibility that materially similar criminals are treated disparately.179
At the extremes, there are two structural choices: let
176. See supra Part II.F.
177. See supra note 127 (giving an example of such a scheme).
178. See infra Part V.
179. At the very heart of justice lies the Aristotelian idea that like cases should be treated alike: “Justice is the political good. It involves equality, or the distribution of equal amounts to equal persons.” THE POLITICS OF ARISTOTLE 129 (Ernest Barker trans. & ed., 1946). For a pro- found critique of the assumption that justice is done simply by treating like cases alike, see John E. Coons, Consistency, 75 CAL. L. REV. 59, 113 (1987) (“Perhaps we should wonder whether this impulse to hammer it all flat . . . is really more than an aesthetic quirk that has come to dominate our emotions. There is something obsessive about a jurisprudence that would make all things fit; it lacks sufficient patience with vulgar but real disorder.”).
legislatures set very narrow sentence ranges for particular crimes, or even discrete points, thereby maximizing uniformity (or what modern commentators sometimes call “coordination”) at the cost of losing in- dividuality; or have individual judges (or juries) impose sentences in wide and/or indeterminate ranges, thereby maximizing individuality at the cost of uniformity. Where one should draw this difficult line be- tween uniformity and individuality depends in large part on one’s views about the purpose of punishment.
If criminals are punished to be rehabilitated, then individuality must be paramount. All carjackers should no more get ten years in the penitentiary than all diabetics should get the same dose of insulin. If punishment is about treatment, then individuals are punished, not their crimes. Moreover, if we punish to treat, then indeterminate sen- tencing is a good way to insure that diseased criminals are not re- leased from the penitentiary before they are cured, or kept there after they are cured.
But if criminals are punished to exact a moral price for immoral behavior, then uniformity must be paramount. The system is match- ing just deserts with crimes, and the nature of the crime is substan- tially more important than the individual circumstances of its perpe- trator. The individual’s circumstances remain important—because retribution requires proportionate punishment—but they are not as important as the crime itself. Determinate sentences are also para- mount under a retributive paradigm. Because criminals are being punished instead of treated, parole boards do not need to announce when the morally diseased have been cured.
The engine for the Guidelines was very much the return to retri- bution, marking a significant movement away from unbounded sen- tencing flexibility and toward more uniformity between similarly situ- ated criminals; that is, away from indeterminate sentences and toward determinate ones. The Guidelines may have seriously overshot the mark by making sentencing ranges too narrow and by bureaucratizing departures. But the idea of narrowing sentence ranges from the al- most limitless indeterminate ranges that were in place in the federal system before the Guidelines was a laudable one, and indeed even a necessary one, after the rejection of the rehabilitative ideal and the return to retribution.
The real rub with the Guidelines was institutional, not crimino- logical. Federal judges simply did not approve of having their long- standing and almost limitless sentencing discretion taken away by bu-
reaucrats.180 But having it taken away by jurors should be another thing entirely. Judges and jurors have a partnership considerably more venerable than judges and sentencing commissioners. It is also a partnership grounded in the Constitution, not in the vagaries of po- litical reform. Most importantly, because almost all criminal cases are plea bargained, jury sentencing is a considerably less drastic invasion of the judicial sentencing power than are sentencing commissions. In most jury sentencing systems, judges will continue to sentence defen- dants in the vast bulk of cases that are plea bargained; sentencing commissions tie judges’ hands whether or not defendants plead guilty or are convicted after trial.181
Having legislatures set sentencing ranges, and then letting jurors decide particular sentences within those ranges, is a sensible accom- modation of the tension between uniformity and individuality. The question of how bad certain crimes are in general, and the ballpark levels of retribution those crimes must command, is certainly a legis- lative question properly answered by having elected legislatures set ranges of punishment. The much finer question of how much propor- tionate retribution, within that range, is required of a particular criminal in a particular situation can most accurately be answered by the twelve people who heard all the facts.
V. LIMITATIONS
Reformers do not write on a blank slate when it comes to jury sentencing. There is a wealth of unbroken experience that has accu- mulated since colonial times about what works and what does not work when jurors are asked to impose sentences. Many of the best design features have been adopted specifically to respond to increas- ing criticisms of jury sentencing; many others have become necessary simply because the trial mechanism has become substantially more complex. In either case, most of these evolved design features act as important limitations on unbounded jury sentencing discretion, and no call for a move toward more jury sentencing would be complete without a discussion of them.182
180. See generally STITH & CABRANES,supra note 9 (criticizing the Guidelines).
181. See supra note 12.
182. My good friend, Professor Bill Pizzi, comes at the problem of the American system’s breathtaking ambivalence about the role of the jury from the opposite direction. As a compara- tivist, he suggests that Americans should consider the trial practices in European and other