A History of American Sentencing

Abstract American sentencing has ebbed and flowed over two centuries—with different institutions playing different roles, different theories of punishment, different substantive laws, and different sovereigns (federal or state) playing key roles. Sometimes the changes were triggered by objective conditions, like the crime rate but, more often in recent years, by political pressures (“tough on crime”) and the media. This chapter describes four periods in the evolution of American sentencing law, from colonial juries, to the period of indeterminate sentencing, then mandatory guidelines and mandatory minimum sentencing, and the current—not so easy to categorize—system. We swung from reposing expertise in judges—when rehabilitation was the dominant purpose of sentencing—to the opposite—ceding sentencing to Congress and a Sentencing Commission, and elevating retribution above all. In recent years, with a raging debate about mass incarceration, the disproportionate imprisonment of minorities, the cost of imprisonment, as well as a declining crime rate, the pendulum has swung back—to a degree—to judges, enabling the return of some discretion and programs focused on rehabilitation. But the history of American sentencing suggests that even those trends are unstable; habits of mass incarceration and retribution die hard.