Tools For Structuring Court Discretion: What Do They Work For And Why Don't They Work Better?

Abstract

Guidelines models intended to structure court discretion typically have been developed using descriptive study methods, and yet have been criticized precisely because they are intended to be descriptive of past practice. Others have criticized descriptive sentencing guidelines because they are insufficiently prescriptive. To date, only one known study has developed, implemented, and evaluated a guidelines model containing both descriptive and prescriptive components. In this paper, we argue that many criticisms made of guidelines models suggest a misunderstanding of these fundamental concepts, that evaluations of guidelines effectiveness often ignore important issues of implementation and intention, and that, when properly developed, implemented, and evaluated, effectiveness clearly may be demonstrated. Finally, we show that fundamental conflicts between normative and descriptive models may constrain effectiveness in many applications of guidelines.