n two recent opinions, Blakely v. Washington and United States v. Booker, the U.S. Supreme Court effectively invalidated the binding nature of sentencing guidelines used by many states and the federal government over the past thirty years. Not surprisingly, numerous commentators have asserted that Blakely and Booker profoundly altered the nature of sentencing in the United States. But these claims have been made without any meaningful empirical consideration of whether viable alternatives exist.
This Article fills that gap. It explores the extent to which voluntary, nonbinding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid "impermissibly" taking into account a defendant's race or sex. It also compares such guidelines to the binding guidelines found constitutionally impermissible in Blakely and Booker.
In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that binding guidelines did, especially with respect to sentence variation. For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 35 percent for violent crimes and 21 percent for property crimes. By comparison, the analogous results for binding guidelines are a 57 percent drop for violent crimes and a 54 percent drop for property crimes. For the use of impermissible factors, the results are more ambiguous; binding guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing.
Voluntary guidelines are not the only option available to the states in a post-Blakely world: States can rely on sentencing juries or forms of expanded mandatory minimums, for example. And it remains an open empirical question whether, in the end, voluntary guidelines work better than these alternatives. But voluntary guidelines nonetheless appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely and Booker.