South Carolina does not have sentencing guidelines. Should we? The federal courts, 15 states, and the District of Columbia have sentencing guidelines, and the federal courts, 22 states, and the District of Columbia have sentencing commissions whose purpose is to study and implement guidelines. There are arguments on both sides, with proponents of guidelines lamenting the lack of consistency in sentencing – two persons who are similarly situated should get the same sentence for the same crime, but that’s not always how it works when there are no guidelines. On the other hand, aren’t we tying a judge’s hands when we tell a judge how he should sentence a defendant? The judge is in the courtroom, sees the defendant and other witnesses, hears the evidence and mitigation, and is surely in a better position to determine an appropriate sentence in each individual case?

What are Sentencing Guidelines?

“Sentencing guidelines” does not refer to the minimum or maximum range of punishment allowed for each crime. They also do not refer to the classification of misdemeanors or felonies in SC. So, what are they, exactly?

Sentencing Commissions

The federal government, 22 states, and the District of Columbia have established sentencing commissions. South Carolina does not have one. The sentencing commissions research, take input from the legal community, establish, and make amendments to the sentencing guidelines for the courts that they work in. The United States Sentencing Commission, for example, “was created by Congress in 1984 to reduce sentencing disparities and promote transparency and proportionality in sentencing.” The creation of a sentencing commission is the first step towards creating balanced, rational sentencing guidelines that are based on sound research, policy, and data.

Sentencing Guidelines Tell Judges What Sentences to Give to Defendants

The federal sentencing guidelines were mandatory at first. Then, in 2005 in U.S. v. Booker and U.S. v. Fanfan, the U.S Supreme Court held that the guidelines are advisory only – the guidelines required judges to impose sentences based on facts that were not found by a jury beyond any reasonable doubt, and therefore mandatory guidelines are unconstitutional. Despite this, the Court insisted that the guidelines must still continue to shape sentencing decisions even if the Courts are not bound by them – in practice, the guidelines have continued to be treated as “mandatory” by most courts, and judges rarely deviate from them. If a judge imposes a sentence that is outside of the guidelines, either above or below the “suggested” range, the court must make a finding of facts that would justify their departure from the guidelines and sentences are subject to reversal if the departure is not justified.

How Do Sentencing Guidelines Work?

Before the federal government and guidelines states began to implement sentencing guidelines, they had a system that provided for maximum sentences but left the length of that sentence up to the court – like South Carolina’s sentencing system. In a non-guidelines sentencing system, the legislature defines what criminal conduct is and what the minimum and maximum sentence should be for each crime – for example, in SC, burglary first degree carries a penalty of no less than 15 years and up to life in prison. This means that, following a conviction, the court can sentence the defendant to 15 years, life in prison, or anything in between – that’s a lot of discretion and inevitably will make for inconsistent sentences in different cases. On the other hand, sentencing guidelines take into account a huge number of factors including the person’s criminal history and the severity of the crime.

The Grid System

Most sentencing guideline systems use a “grid,” that essentially has a y-axis and an x-axis, with criminal history along one side and severity of the crime along the other. In federal court, for example, the severity of the crime is determined by the amount of money involved in wire fraud or money laundering cases, or the total amount of drugs bought and sold by every participant in a federal drug conspiracy. Criminal history is determined by the number of prior convictions, each of which is assigned a point value. Upward or downward departures are possible, based on mitigating factors including whether a defendant “cooperated” by debriefing, providing information, or testifying against a co-defendant at trial. Some states use worksheets instead of grids to determine what an appropriate sentence should be.

Why Do We Need Sentencing Guidelines?

Some legislators believe that judges have too much discretion when it comes to sentencing, and they want to be able to control the sentences that courts give to defendants. There’s some solid reasoning behind it:

• Sentences should be similar for similar crimes;
• In theory, it should help to make sentences for white and non-white defendants similar, and may help to correct systemic racism in sentencing;
• Different judges have different philosophies and give different sentences in similar cases; and
• Defendants know what to expect when it comes to sentencing – it shouldn’t feel like a random process based on which judge you draw on what day.

What’s Wrong with Sentencing Guidelines?

Do we need sentencing guidelines in South Carolina? No. It’s just a bad idea. Why?

• It takes discretion away from the judge, who is best suited to determine an appropriate and fair sentence based on the facts presented;
• Sentences imposed under guidelines tend to be harsher than sentences imposed by judges with discretion;
• Judges with discretion already take into account all of the factors that are built into the guidelines – they just do it in real-time based on the real people and facts in front of them;
• Sentencing guidelines are unnecessarily complicated and confusing; and
• They often lead to unjust results that could have been corrected by a judge with discretion.

Although there are still some tweaks that need to be made to SC’s criminal laws and the sentencing ranges that are available to judges, the discretion that is built into the current system in SC tends to make the proceedings more fair and just.

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The SC defense attorneys at Coastal Law represent clients accused of crimes throughout South Carolina. If you’ve been charged with a crime, call now at (843) 488-5000 or contact us by email to talk with an experienced criminal defense attorney today.