by Jacob Schuman

Over 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? Why should we punish wrongdoers at all?

In this Article, I ask a new, fourth question: How should we decide punishment? First, I demonstrate that determinate sentencing uses rules to decide sentences, while indeterminate sentencing relies on standards. Next, I show how the trigger-based nature of rules—in contrast to the qualitative character of standards—makes them vulnerable to four different kinds of substantive and formal errors. Applying that analysis, I argue that district court judges often use “departures” and “variances” from the Federal Sentencing Guidelines to correct the errors that result from rule-based decision-making instead of sentencing based on the § 3553(a) standard. Finally, I propose that judges should be more willing to depart or vary from the Federal Sentencing Guidelines in cases where the Sentencing Guidelines would otherwise impose particularly large or numerous sentence adjustments because these adjustments exacerbate the impact of rule-based errors.


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