Let Specificity, Clarity, and Parsimony of Purpose Be Our Guide

The decisional rules embedded in presumptive guideline grids have achieved some of their drafters' objectives, but fall short of a ``rule of law'' for sentencing – a paramount goal of the sentencing reforms Marvin Frankel set in motion twenty‐five years ago. The rule of law requires a reasoning process that moves from penal purpose to penal measure, by fair inference from relevant facts. Two‐dimensional grid guideline schemes gain simplicity by reducing relevant facts to two – current offense and prior record. Even when judges are permitted to consider other facts, the presumptive guideline methodology obscures differences in the penal purposes sentencers ought to have in mind for cases falling into the same cell of a grid. In contrast, the rule of law requires fact‐finding in the individual case, to reveal such differences and to test the plausibility of available penal measures. This elevates the relevance of offender characteristics and circumstances, including some that are held ordinarily irrelevant in the federal scheme and are of uncertain relevance in many state schemes. While this is most obvious when use of noncustodial penal measures is subjected to the rule of law, it is no less important when imprisonment is used. Disparate impacts should be avoided by more sophisticated deployment of correctional authority and resources, not by constriction of the rule of law governing the sentencing decision itself.