31 William Mitchell Law Review 407 (2004-2005)
Once upon a time (a time not so remote as to be beyond the memories of many of us who still toil in the vineyards of justice), the severity of a criminal sentence was determined largely at the whim of the trial judge, who was guided only by vague considerations of suitability. Non-premeditated murder, for example, might be punished by anything from probation to forty years in prison. A parole board exercised a similarly subjective power to temper the term with early release. Then, about a quarter century ago, the legislature created a commission to establish sentencing “guidelines,” said to be “advisory,” to assist trial judges in devising sentences that would provide greater uniformity than had emerged under the earlier system. This resulted in classification of offenses according to severity which, cross-referenced to the defendant's criminal record, yielded a “presumptive” sentence. Now, in the case of the murderer mentioned above, instead of a range of zero to forty years, the scope would be 299-313 months. The range of the judge's discretion, in other words, was abruptly pruned from forty years to fourteen months.
"Windfall Justice: Sentences at the Mercy of Hypertechnicality,"
William Mitchell Law Review: Vol. 31
, Article 2.
Available at: http://open.mitchellhamline.edu/wmlr/vol31/iss2/2