By Rhys Hester

Michael Tonry has been the leading commentator on the American sentencing reform movement since its beginning. Sentencing Matters, one of the most influential works on American sentencing ever produced, was written at the crest of the sentencing guidelines movement. Now, some fifty years into that movement, American punishment policy finds itself at a standstill. This festschrift essay honor’s Tonry’s contributions to the sentencing reform literature, contemplates the reasons why the reform movement was not more successful in the United States, and reflects on how Tonry’s work continues to provide a framework for more sensible policy. The essay draws on the field of behavioral economics to underscore the need for decision tools like sentencing guidelines to help fulfill a more fair and just system of punishment. Yet as Tonry’s work has illustrated, the Aristotelian maxim of justice requires not only that like cases be treated alike, but that different cases be treated differently.

Crim Law Forum 36, 219–231 (2025).

By Baboki Jonathan Dambe & Badala Tachilisa Balule 

Intoxication plays a role in the commission of crimes in most, if not all, jurisdictions. Botswana is no exception. Our law reports are replete with cases in which intoxication is alleged to have contributed to the commission of the offence. In this regard, courts continually find themselves contending with the consideration that they ought to give to the intoxication, in respect to both the criminal culpability of the accused person and their moral blameworthiness when it comes to sentencing. This paper highlights that, in the context of Botswana, intoxication may be treated as a defence, an extenuating circumstance, a mitigating factor, or an aggravating factor. It interrogates the approaches adopted by the courts in considering intoxication in these four roles. Given the divergence of judicial approach to intoxication in sentencing, the paper highlights the necessity of sentencing guidelines in order to attain a measure of predictability and consistency. Consequently, the paper assesses the sentencing guidelines adopted by other jurisdictions in respect of intoxication and the lessons to be drawn from such guidelines.

 Crim Law Forum 35, 289–318 (2024).

By Arie Freiberg & Julian V. Roberts

Over the past few decades, the traditional, discretionary approach to sentencing has been progressively replaced by structured regimes often administered by sentencing commissions or councils. Sentencing guidelines of one kind or another have proliferated across the common law world and constitute the most significant development in sentencing in a century.

In 1972 Judge Marvin Frankel of the US District Court for the Southern District of New York published a book Criminal Sentences: Law Without Order which sparked a revolution in sentencing in the US that ultimately spread around the world. His brief book provided a trenchant critique of the highly discretionary approach to sentencing which then prevailed in the US and had resulted in widespread unjustified disparity, an absence of proportionality, and racial injustice in sentencing outcomes. He proposed three major solutions to what he described as essentially a “lawless” process: (i) a permanent independent commission on sentencing; (ii) an articulation of policies or guidelines for judges to follow, and (iii) meaningful appellate review. The issues of sentencing guidance, sentencing guidelines and sentencing commissions or councils have been extensively debated in the literature since the publication of Frankel’s book. It is seldom possible to identify with accuracy the origin of an institution or concept which is then adopted, adapted, or rejected by jurisdictions beyond its original scope and geographic boundaries. How has this quiet revolution come about? How and why have the concepts of guidelines and commissions spread so rapidly?

This article examines the creation and subsequent proliferation of sentencing commissions since the establishment of the first commissions in Minnesota and Pennsylvania in 1978. From that date until the present nearly 50 commissions have been proposed, established, disestablished or considered. Much of the literature to date has focused not on the nature of the commissions themselves, but on the forms of their sentencing guidelines. These take two differing approaches, one primarily numerical, the prevailing model in the US, and one primarily narrative, the prevailing model in England and Wales and most other jurisdictions.

We explore the process by which the idea of a sentencing commission and its guidelines has spread to other jurisdictions. This process, referred to as policy transfer, diffusion, transplantation, convergence, translation or policy learning, modelling or borrowing, can provide insight into why a policy innovation in one jurisdiction is emulated or adapted in another, and the means by which such innovations are communicated over time and between jurisdictions. The study of policy transfer or diffusion also requires an analysis of the processes of indigenisation or mutation across jurisdictions.

Overview

Part II of this article examines the nature of sentencing commissions or councils and the very different US and UK models which have inspired other jurisdictions. Part III discusses what is meant by policy transfer or diffusion and the various frameworks used to describe and explain the process. Part IV examines why transfers may occur, what is transferred, the sequence of transfer, who is involved in policy transfer, its mechanisms and the conditions for transfer. Part V examines jurisdictions where they were considered but rejected, Part VI notes policy transfer failures and Part VII provides a conclusion to the article.

Crim Law Forum 34, 87–129 (2023)

By The Office of the General Counsel, United States Sentencing Commission - USSC

The Commission’s legal staff publishes this document to assist in understanding and applying the sentencing guidelines. The information in this document should not be considered definitive or comprehensive. In addition, the information in this document does not necessarily represent the official position of the Commission on any particular issue or case, and it is not binding on the Commission, the courts, or the parties in any case. To the extent this document includes unpublished cases, practitioners should be cognizant of Fed. R. App. P. 32.1, as well as any corresponding rules in their jurisdictions.  

Washington, DC: USSC, 2025. 65p.

By Erica Zunkel and Alison Siegler

While state drug law reform is moving apace, federal drug law reform has moved much more slowly. Many, including the Judicial Conference of the United States and the United States Sentencing Commission, have urged Congress to enact substantive federal drug law reform for years. But Congress has not acted. As a result, the federal system continues to single out drug offenses for harsh treatment at the bail stage and the sentencing stage—the front end and back end of the federal mass incarceration crisis. In this paper, we argue that federal judges have a critical role to play in future federal drug law reform in light of Congress’ long-standing failures to meaningfully change the laws. At the front end, judges should encourage the release of more people on bail by closely scrutinizing prosecutors’ motions for temporary detention and giving little weight to the Bail Reform Act’s presumption of detention. Data shows that the statutory drug presumption is overbroad and does a poor job of determining who is a risk of flight or a danger to the community. At the back end, judges should issue categorical policy disagreements with the drug sentencing guidelines and the career offender sentencing guideline using the Supreme Court’s blueprint in Kimbrough v. United States. Judges should issue sentences below these guidelines because they are not based on empirical evidence, over-punish drug offenses, and result in racial disparities. At both ends, judges should rest their decisions on the evidence that the drug presumption, the drug sentencing guidelines, and the career offender sentencing guideline are flawed. While judicial action is not a cure for Congressional inaction, it would send a clear message from one co-equal branch of government to another that substantive reform is urgently needed 

By The Sentencing Council for England and Wales

The Sentencing Council for England and Wales was set up in 2010 and produces guidelines for use by all members of the judiciary when sentencing after conviction in criminal cases. The Council promotes a clear, fair, and consistent approach to sentencing by issuing sentencing guidelines and explanatory materials. It has a statutory duty to monitor these sentencing guidelines and to draw conclusions from the information obtained (s129 Coroners and Justice Act 2009). On 1 October 2018, the Council published the intimidatory offences guidelines, which are a package of five guidelines covering 11 offences, including harassment and stalking offences. The five guidelines are for use in all courts and apply to all adult offenders (those aged 18 or over at the time of sentence). The guidelines came into force on 1 October 2018 and cover: • a combined guideline covering the offences of harassment, stalking and racially or religiously aggravated harassment/stalking • a combined guideline covering the offences of harassment (putting people in fear of violence), stalking (involving fear of violence or serious alarm or distress), and racially or religiously aggravated harassment (putting people in fear of violence)/stalking (involving fear of violence or serious alarm or distress) • threats to kill • disclosing private sexual images • controlling or coercive behaviour in an intimate or family relationship The Council developed guidelines to replace the Magistrates’ Court Sentencing Guidelines (MCSG) for harassment, harassment (putting people in fear of violence), racially or religiously aggravated harassment, racially or religiously aggravated harassment (putting people in fear of violence) and threats to kill, to provide more detailed guidance as these guidelines were only applicable to the magistrates’ courts. Additionally, the package introduced new guidelines for stalking, stalking (involving fear of violence or serious alarm or distress), racially or religiously aggravated stalking, and racially or religiously aggravated stalking (involving fear of violence or serious alarm or distress), as there were no guidelines previously covering these offences. The guidelines also covered the newer offences of disclosing private sexual images and controlling or coercive behaviour in an intimate or family relationship which were introduced in 2015. The aims of the guidelines are to ensure that all sentences are proportionate to the offence committed and in relation to other offences.

London: Sentencing Council for England and Wales, 2025. 93p.

By UK Ministry of Justice

In the summer of 2024, capacity pressures brought the prison system dangerously close to collapse. The adult prison population, estimated to be over 87,000 as of April 2025,1 currently exceeds the capacity the system is designed to accommodate and is projected to increase. To address these capacity challenges, successive governments have been forced to adopt emergency measures to free up spaces, including reducing the release point for some prisoners from 50% of their sentence to 40% (SDS40).2 These measures cannot resolve the capacity crisis in the long term nor fortify the effective running of our prisons. Commissioned by the Ministry of Justice in October 2024, this Independent Sentencing Review (“the Review”) was given the task of a comprehensive re-evaluation of our sentencing framework, to ensure the country is never again in a position where it has more prisoners than prison places, and the government is forced to rely on the emergency release of prisoners. This Review also welcomes the opportunity to think more imaginatively about how we sentence and use custody, holding the view that our current system, regardless of prison capacity pressures, requires considerable reform to rehabilitate offenders more successfully, reduce reoffending and support victims. The purposes of sentencing, as set out in legislation, are punishment, reduction of crime, reparation, rehabilitation and public protection. The Review’s Part 1 report History and Trends in Sentencing found that over the last two decades, sentencing has focused disproportionately on punishment with a view from politicians and the media that “the only form of punishment that counts is imprisonment.”3 Punishment is an important aim of the criminal justice system and prison plays a vital role in delivering punishment. However, too often political decision-making has been based on an approach that punishment is all that matters, with political parties lacking appropriate focus on the most effective ways to reduce crime. This is demonstrated by the high levels of reoffending, suggesting that the current approach is failing to achieve rehabilitation and address the root causes of offending. Overall, proven reoffending rates for adult offenders have fluctuated between

Recommendations

There are nine detailed chapters in the review, each with accompanying recommendations – a total of 48 in all. I summarise the nine chapter headings and overall recommendation for each below.

Revisiting the statutory purposes of sentencing – recommends amending the statutory purposes of sentencing to emphasise the importance of protecting victims and reducing crime.

Strengthening alternatives to custody in the community – recommends revising the sentencing framework to ensure sentencers can take full advantage of the flexibility of community sentencing, including financial penalties and ancillary orders.

Reducing reliance on custody – the expected recommendation to legislate to ensure short custodial sentences are only used in exceptional circumstances.

Incentivising progression from custody to community – prisoners can be released earlier through “earned progression” defined as rewarding compliance with prison rules.

Taking a victim-centred approach – recommendations to improve public awareness and information on sentencing, more transparency about sentence lengths and better support to victims.

Targeted approach to different groups – recommendations aimed at prolific offenders, women, drug and alcohol offenders, older offenders, Foreign National Offenders and sex offenders.

The role of the probation service – more investment in the service itself and funding for Third Sector and community organisations.

The role of technology – rapid roll out of technology in offender supervision, improved data sharing and explore use of advanced AI.

A sustainable prison system – longer term recommendations including an external advisory body and transparency around the impact of new legislation on prison capacity.

London: UK Ministry of Justice, 2025. 192p.

By Vera M. Kachnowski, Christine Kitchens, and Data Cassandra Syckes,

The report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System updates a 2016 Commission study and examines sentences for simple possession of marijuana offenses in two respects. Part One of the report assesses trends in federal sentencings for simple possession of marijuana since fiscal year 2014. The report then describes the demographic characteristics, criminal history, and sentencing outcomes of federal offenders sentenced for marijuana possession in the last five fiscal years and compares them to federal offenders sentenced for possession of other drug types. Part Two of the report examines how prior sentences for simple possession of marijuana (under both federal and state law) affect criminal history calculations under the federal sentencing guidelines for new federal offenses. The report identifies how many federal offenders sentenced in fiscal year 2021—for any crime type—received criminal history points under Chapter Four of the Guidelines Manual for prior marijuana possession sentences. The report then assesses the impact of such points on those offenders’ criminal history category, one of the two components used to establish the sentencing guideline range.

Washington, DC: United States Sentencing Commission, 2023. 46p

By Frances Osborne, Sarah Castell, Rebekah McCabe & Louise MacAllister

This report covers the findings of an online public dialogue held in Spring 2023 to provide evidence for the Justice Committee’s inquiry on Public Opinion and Understanding of Sentencing. The dialogue responded to two key questions:  What do you think the aims of sentencing should be?  What should the government’s priorities be when setting sentencing policy? 25 people were chosen to reflect the general public, screening out those with particular or emotionally significant lived experience of the justice system. Participants engaged in three half-day sessions to learn more about the issue, deliberate together and answer the two questions above. Participants were given different ways to consider the aims of sentencing and deliberate between themselves, while also asking questions of experts. At the beginning Sir Bob Neill, from the Justice Select committee, and Jack Simson Caird, a member of the Committee’s secretariat, introduced the role of the select committee and of the wider inquiry. This was followed by a presentation from Ruth Pope from the Sentencing Council about the aims of sentencing, and participants had a Q&A session with all the presenters. In the later workshops, presentations were given on the problems and challenges in current sentencing policy from different perspectives, including those of victims and prisoners. These were given by Gavin Dingwall, from the Sentencing Academy, and Mark Day, Joint Secretary to the Independent Commission into the Experience of Victims & Long-term Prisoners. At the final meeting, there was a discussion of the ways sentencing is discussed in the wider social media context; and a ‘You be The Judge’ case study exercise where participants considered how general principles might play out when applied to individual cases. The findings in this report have been arrived at through qualitative thematic analysis of the dialogue as a whole. It is accompanied by findings from a survey participants completed before and after the dialogue.

London: UK Parliament, 2023. 67p.

By The United States Sentencing Commission

This report focuses on offenders sentenced under the production of child pornography guideline. A companion report, Federal Sentencing of Child Pornography: Non-Production Offenses (June 2021), analyzes offenders sentenced under the nonproduction of child pornography guideline.

Washington, DC; United States Sentencing Commission, 2021. 72p.

By Kathleen C. Grilli, Kevin T. Maass and Charles S. Ray

This publication summarizes the history of Chapter Eight’s development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. It then provides policymakers and researchers a snapshot of corporate sentencing over the last 30 years. Finally, the publication describes Chapter Eight’s impact beyond federal sentencing.

Washington, DC; The United States Sentencing Commission, 2022. 94p.

By Sarah W. Craun and Alyssa Purdy

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking,1 racketeering, 2 and firearms 3 crimes. While convictions under these statutes are common,4 sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced during the last six fiscal years. During fiscal years 2016 through 2021, federal judges imposed a sentence of life imprisonment (“life imprisonment sentence”) on 709 offenders. Another 799 offenders received a sentence so long that it had the practical effect of a life sentence (i.e., 470 months or longer) (“de facto life sentence”). Together these two groups of offenders represent only 0.4 percent of the total federal offender population during the last six fiscal years. By comparison, other federally sentenced offenders during this time received a median sentence of imprisonment of 24 months. Due to the infrequency and nature of life imprisonment, such sentences are of heightened interest to policymakers. In February 2015, the United States Sentencing Commission released Life Sentences in the Federal System, examining the application of life sentences by federal courts during fiscal year 2013.5 Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments

Washington, DC: United States Sentencing Commission , 2022. 40p.

By Sigrid Geralde Clara van Wingerden.

The sentencing decision of the judge might be the most important decision in the criminal proceedings, not only because of the impact the punishment has on the offender, but also because the sentencing decision is a cornerstone of the legitimacy of the entire criminal justice system. Nonetheless, there still are questions about the factors judges take into account when making their sentencing decision. This study aims to improve our understanding of the sentencing decisions judges make.The developments in criminal justice practices as regards the emergence of ‘actuarial justice' have directed the focus of this study to risk-based sentencing: are offenders with a high risk of reoffending more likely to be sentenced to imprisonment and to longer prison terms than low-risk offenders? To what extent do judges take information into account on the risk-related personal characteristics of the offender, such as unemployment, ties to family or friends, or drug usage, when making their sentencing decision?Using uniquely detailed data on risk-related social circumstances of the offender, and advanced quantitative and qualitative research methods, this study provides in-depth insight into sentencing.

Leiden: Leiden University, 2014. 215p.