The Sentencing Matters Substack Book Review: Sentencing Without Guidelines, by Rhys Hester

On May 25, 2020, George Floyd was killed by a police officer in Minneapolis during an arrest for a petty theft involving a counterfeit twenty-dollar bill.  The killing led directly not only to a series of protests against police brutality but to a period of heightened interest and advocacy around racial justice and fairness in America.  The Black Lives Matter movement, which began years earlier following the killing of Trayvon Martin in Florida, gained momentum both here and around the world after Floyd’s death and started what seemed for many to be the beginning of a genuine racial reckoning in our country.  Diversity, equity, and inclusion initiatives sprung up in universities, corporations, and government agencies across the country.  Efforts to more accurately document and preserve the country’s racial history spread.  And reducing unwarranted racial, ethnic, gender, and gender-identity disparities became an important and widespread goal.

Now more than four years after Floyd’s death, one can find little evidence that the Movement for Black Lives took any cohesive direction around federal sentencing law and policy.  This, despite the fact that African-Americans still make up almost 40% of the federal prison population, some 14 years after President Obama signed the Fair Sentencing Act into law to address the singular symbol of unwarranted sentencing disparity in the federal system: the 100-to-1 crack/powder cocaine quantity ratio. 

One of the reasons federal sentencing policy was never significantly influenced by the Movement surely is that in 2020, when Floyd was killed, the U.S. Sentencing Commission was without a quorum.  But there was much more.  As importantly, for years predating Floyd’s death, advocates for federal sentencing reform have deliberately and reflexively resisted many efforts to focus policymaking on unwarranted sentencing disparities.  They have done so in large measure because those efforts are seen by these advocates as a precursor to the possible reintroduction of presumptive sentencing guidelines back to the federal system. 

For them, the sentencing guidelines may have had some positive impact on reducing unwarranted disparities, but what is more important is that the federal Guidelines led to longer and more common imprisonment sentences, generally, and a massive increase in the federal prison population in the years following their introduction.  The Guidelines caused mass incarceration in large measure, these advocates believe, and regardless of any racial equity benefits from them – including from the presumptive version of guidelines in place before the Supreme Court’s decision in Booker – reducing the severity of federal sentences is now the primary goal.  And expanding judicial discretion is the way to achieve that goal.

So, when the Sentencing Commission first released a report in 2010 on demographic differences in federal sentencing practices, a report that found that Black men received significantly longer sentences than White men who committed similar offenses, the Federal Public and Community Defenders, the Criminal Law Committee of the Judicial Conference, and many advocacy groups pushed back hard.  In a letter to then-Commission Chair William Sessions, for example, Thomas Hillier, the Federal Public Defender in Seattle, took issue with the Commission’s conclusion that the differences in sentence length between Blacks and Whites had increased steadily since Booker and strongly defended the advisory guideline regime.  Similarly, the Criminal Law Committee of the Judicial Conference repeatedly criticized the Commission’s findings of unwarranted racial disparities in federal sentencing practices, taking issue with the Commission’s methodology and insisting that more judicial discretion in sentencing is an unequivocal good.  It seems hard to believe that advocates for criminal defendants believed then that Blacks and Whites received equal treatment in federal sentencing.  The greater goal of reducing sentence severity, though, carried the day.

The mindset that underlies this stance – the mindset that tightly connects the goal of reducing unwarranted sentencing disparities to the deployment and use of sentencing guidelines – is understandable.  The father of the guidelines movement, Judge Marvin Frankel, first made the connection in his groundbreaking book, Criminal Sentences: Law Without Order.  Frankel found unacceptable the disparities that resulted from then-current judicial practices, and his remedies were explicitly a sentencing commission and sentencing guidelines to guide judicial sentencing decisions.  And following Frankel’s advice, the Sentencing Reform Act gave the U.S. Sentencing Commission as one of its primary missions to establish sentencing policies and practices that avoid unwarranted sentencing disparities among those with similar records who have been found guilty of similar criminal conduct, and then told the Commission to establish sentencing guidelines to accomplish this and other goals.  The connection between guidelines and reducing unwarranted disparities has been part of the foundation of federal sentencing policymaking for four decades now.

But in Sentencing Without Guidelines, Rhys Hester blows up the inevitability of this connection by opening us up to the possibility of a sentencing system with low levels of unwarranted sentencing disparities and moderate sentences too, all without sentencing guidelines.  He does so as he tells the story of South Carolina’s attempts at sentencing reform, which began in the 1970s and which put the state “on the cusp of becoming one of the earliest adopters of guidelines” along with Minnesota, North Carolina, Pennsylvania, and Oregon.  The effort failed to garner the necessary political support, despite being led for a time by Republican Speaker of the South Carolina House David Wilkins, the younger brother of federal judge William “Billy” Wilkins, the first Chair of the U.S. Sentencing Commission.  Speaker Wilkins managed to gather sufficient support for guidelines in the South Carolina House, but the enacting legislation never gained the necessary traction in the state senate.  And South Carolina, like about half the states in the country, has never operated under sentencing guidelines.

Hester describes how “South Carolina stands as a bit of a sentencing policy enigma.”  He lays out both a brief history of sentencing reform in the U.S. and a deeper dive into the history of sentencing reform in South Carolina, declaring that no state “exerted more effort over a longer period of time for guidelines only to come away empty handed.”  But despite that failed effort, and after “leading as the most punitive state in the most punitive nation in the world, South Carolina found a way to ease itself of some of the glut of mass incarceration.”  And just as importantly, “[t]hough the state is a Deep South stronghold with an abundance of racial baggage” – a generous description indeed – Hester explains that the race effect in sentences meted out in South Carolina is relatively small, as are geographic and inter-judge disparities.

Hester has no illusions that South Carolina has the ideal sentencing model for all to follow.  Yet, according to the Sentencing Project, South Carolina has, in fact, an imprisonment rate below the U.S. national average and also a Black/White sentencing disparity rate below the national average.  So how did this come to pass? 

Hester conducted extensive research into the South Carolina sentencing experience, research made possible in part by the state’s failed attempt at implementing guidelines, which included creating a sentencing commission and gathering data on past sentencing practices.  Hester analyzed that data and then supplemented the analysis with interviews of judges across the state.  The results are some fascinating findings and plenty of insights and ideas worth thinking about for those working in the federal system and other guideline and non-guideline systems too.  The South Carolina experience is an example of how a criminal justice process can be structured to indirectly, but effectively, nudge judges, and the justice system more broadly, towards similar sentences for similar crimes, towards limiting, if not completely avoiding, racial disparities, and towards moderate severity, all without deploying sentencing guidelines.

In his research, Hester discovers South Carolina’s version of a secret sauce, which involves, three primary ingredients: (1) negating the effects of unique county courthouse cultures to reduce disparity through judicial rotation, (2) giving lenient judges an outsized role in sentencing, also made possible by judicial rotation, and (3) avoiding the disproportionate impact of criminal history on the length of imprisonment terms, which is typical in guideline jurisdictions.  

Hester reviews the research that shows how individual courthouses are social organizations with distinct and local legal cultures.  These cultures, in turn, create their own “going rate” for sentences of different crimes based on their severity.  For example, although burglary may formally carry a wide punishment range, “the local norms of a county [will] develop an informal expectation that a first-time nonviolent burglary offender receives two years’ probation.”  In a state with dozens of counties, different norms develop, just as in the federal system, with 94 different judicial districts, different norms develop.  South Carolina avoided these disparity effects brought on by different courthouse cultures through judicial rotation, which Hester concludes has had a defining influence on creating a more statewide legal culture.  “The resulting pull toward uniformity,” Hester explains, “occurs through two primary mechanisms made possible by rotation: (1) judge shopping and (2) the cross-pollination of ideas and practices.”

In South Carolina, all judges periodically travel from county to county to hold court.  This serves as a “centripetal unifying force of sentencing culture, homogenizing what might otherwise be a much more varied collection of county- and judge-specific sentencing norms.”  And Hester discovers from his research that when a lenient or favorable judge comes to town, defense attorneys know it and find ways to get their cases resolved before that judge.  

Rotation allows defendants to avoid tough judges.  And Hester shares stories of tough “hanging judges” who would travel to a circuit for a week of court and by Tuesday would have no one pleading guilty in front of them; “criminal court business would essentially shut down for the week.”  One judge explained it this way – “Judge Softy is coming to town, so there’s a waiting list for Judge Softy.  Everybody games the system.  The attorneys say, ‘Oh, I’m gonna be on vacation this week, but I’ll be back the week Judge Softy is here.’”

Rotation, of course, also facilitates the sharing of ideas, which pulls practices away from localizations and toward a more uniform, statewide legal culture.  According to one judge interviewed by Hester, rotation prevented “disparity in customs and practices from county to county.”  Hester acknowledges that rotation may be impractical in a lot of states and the federal system, but there are “other mechanisms of structure and culture” that can achieve “traditional sentencing reform goals like uniformity” without guidelines.

The other critical component of South Carolina’s sentencing reform success, Hester discovers, is that criminal history plays a limited role in determining the length of imprisonment terms meted out by state judges.  During much of the past few decades of guidelines-dominated research, prior record has been taken for granted as one of the two irrefutable determinates of sentencing.  Every guidelines jurisdiction imposes substantial sentence enhancements based on the defendant’s prior record.  Most involve a grid, one dimension of which is criminal history.  One study found that “guidelines impose an average of around a 600 percent increase in sentence comparing offenders with no prior records to those in the highest guideline criminal history category.  In some jurisdictions, the increase was over 1,000 percent.”  By contrast, Hester’s research shows that South Carolina judges – exercising nearly total unconstrained discretion – give only muted importance to prior record, at least as to the length of imprisonment terms.  Because prior record enhancement policies have a disproportionate effect on African-American offenders, practicing without guidelines leads to less racial disparity in South Carolina and relatively shorter prison terms compared to guidelines jurisdictions.

As Hester concludes, “[w]hatever one’s position on actuarial risk assessment, judges, in the absence of guidelines, view the role of prior record quite differently from the role criminal history is prescribed by sentencing commissions.”  Hester’s research shows that prior record does play a part in judicial in/out decisions, but “the mechanical and linear punishment increases in sentence length dictated by guidelines are not reflective of the way these judges considered criminal history.”

Despite failing to adopt guidelines, South Carolina’s leadership in sentencing reform has been ongoing.  In 2010, the state legislature enacted The Omnibus Crime Reduction and Sentencing Reform Act with overwhelming bipartisan support.  The law substantially reduced the number of people in state prisons by diverting many convicted of non-violent crime into alternative programs and by reducing the number of people returned to prison for technical violations of probation and parole.  These changes led to the closure of six prisons, a reduction of the state prison population by 14%, and a savings of $500 million for taxpayers.  And it all occurred while the crime rate fell.

Sentencing Without Guidelines is not a long book, and it mixes discussions of legal and policy theory with data analysis and accounts of Hester’s interviews with state judges.  Those interviews often lead to revealing, grounding, and sometimes humorous stories, which are sprinkled though the book.  Like one that involved a rural community and what one judge called the “Hutchington Doctrine”: “Anything that has to do with intoxication, an altercation, or fornication, where both parties are from Hutchington, the crime is irrelevant.”  Hester relays a story about how one Sunday afternoon –

the people of that community were down by the river, having a fish fry, relaxing like they do on a Sunday afternoon.  This one fellow gets to wondering where his wife wandered off to and goes out looking for her.  Well, he sees some bushes moving over by the riverbank, goes over and sees his best friend and his wife down in the bushes . . . uh . . . getting to know each other real well.  So, he gets a big stick and beats the guy with it.  And he has to go down to the hospital, and this new deputy from the county who doesn’t know about the Hutchington Doctrine charges the guy, and this young prosecutor who doesn’t know about the Hutchington Doctrine comes and tries the case, and sure enough, it’s an acquittal.  The moral of the story is, if you know about the Hutchington Doctrine, don’t waste your time.

For anyone who has practiced in a state court, rural or urban, the story rings true.

At the end of the book, Hester reminds us that he is a proponent of sentencing guidelines and believes they are beneficial for a number of reasons.  But the story he tells of the South Carolina experience is a reminder that efforts toward uniformity and legitimacy need not focus solely on guidelines and what Hester calls, the “coercive formal rules with mechanisms that foster normative and mimetic uniformity.”  As Hester says, “for a non-guidelines state in which judges retained vast discretion over sentencing decisions, the outcomes in South Carolina appeared to be remarkably uniform from judge to judge and county to county.”  His findings highlight “the pervasive influence of one obscure vestige of the state’s judicial structure: the retained practice of having judges ride circuit, or routinely travel to preside over court in counties throughout the state.”  And his research shows how the widely embraced assumption of criminal history as a primary determinant of sentence length might need to be reexamined.

“Every jurisdiction has a story,” Hester reminds us.  And if we are willing to look – to break out of our parochial view – we can find insights for moving sentencing policy a little closer toward justice.  Hester’s book is a pleasant and rigorous lens into a fascinating example of sentencing reform.  And for those working on federal sentencing policy and reluctant to address unwarranted disparity for fear of what might come next, think again.  Hester shows us that there are creative, non-coercive, non-guideline ideas that might reduce those unwarranted disparities, and, at the same time, might reduce unnecessary severity too.