Eric S. Fish


American legislatures generally delegate primary control over sentencing policy to one of two actors: trial judges or a sentencing commission. In choosing between these actors, a legislature decides between two values: individualization or uniformity. If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices. If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant. This Article proposes a different architecture for American sentencing systems, one that relies on interbranch dialogue to transcend this conflict between individualization and uniformity. In a dialogue-based system, judges and the sentencing commission are coauthors of the sentencing guidelines. They establish sentencing policies through dialogic feedback loops, wherein judges systematically influence the decisions of sentencing commissions, which in turn systematically influence the decisions of judges.

Such dialogue has different institutional forms in different guidelines regimes. In a presumptive guidelines regime (where the guidelines are presumptively binding but judges can depart from them in unusual cases), dialogue takes place through trial judges departing from the guidelines, appellate courts reviewing those departures, and the sentencing commission incorporating this departure case law into the guidelines themselves. In an advisory guidelines regime (where the guidelines are nonbinding), dialogue takes place through the sentencing commission trying to convince judges to follow the guidelines, tracking whether and why judges depart, and updating the guidelines to win more judges’ adherence.

The benefits of a dialogic sentencing system are twofold. First, it minimizes the conflict between individualization and uniformity that has plagued modern sentencing law. Second, it evolves sentencing policy in a morally rational direction by using judges’ departure decisions to change the guidelines where they create illogical or unjust results. Whether a dialogic sentencing system is ultimately possible will depend on political factors, especially legislatures’ willingness to delegate sentencing authority and refrain from issuing restrictive mandates. Assuming that it is politically feasible, the federal government and most of the states with guidelines could adopt dialogue-based systems without major changes to their current institutions. Indeed, several jurisdictions have already incorporated elements of dialogue into their sentencing systems.