The Sentencing Table

The problem

Two people commit the same offence with the same record in the same city, and their cases are assigned to two judges by a random draw. In the federal courts, the difference between the more lenient and the more severe judge in the same courthouse, in cases with no mandatory minimum, averages more than two years in prison. The person did nothing to earn the extra two years. The wheel did.

It was not always this bad. Congress built the federal sentencing guidelines in 1984 to end exactly this, and the table did reduce the gap between judges. Then in United States v. Booker in 2005 the Supreme Court held that the guidelines could not be mandatory without a jury finding the facts that raised the range, and made them advisory. Since then, by the most careful study of the question, the effect of the individual judge on sentence length has more than doubled. Some judges kept sentencing as they had; others, described in the research as "free at last," began sentencing below the range at three or four times their former rate. Both are within the law. A defendant's sentence now depends, to a measurable degree, on which door they walk through.

Race enters here too, and the honest statement is that the evidence is contested. The Sentencing Commission finds that Black male defendants receive sentences noticeably longer than white male defendants with similar records, on the order of 13 percent; other studies put the raw gap at around 19 months before controls, and some find that much of it enters at the charging stage rather than at sentencing. The country cannot settle the argument because most of the data that would settle it is not published in a form anyone can check.

The states are where most sentencing happens, and the picture there is patchier. Seventeen jurisdictions have real sentencing guidelines; Minnesota built the first in 1980 and tied its table to prison capacity, and has had one of the lowest incarceration rates in the country since. Most states have no table at all, and almost none publishes what each judge did against it. A sentence is a public act, pronounced in open court, and the country has arranged never to add them up.

This is the fourth rule of the badge. № 055 put a reason before the stop, № 056 a count on the case, № 058 a register on force. This one puts the sentence on the table.

The proposal

A public Sentencing Table for every jurisdiction that takes federal justice money: a presumptive range for each offence and criminal history, set by an independent commission and recalibrated every year. Every sentence published against the table, with the judge's name. A written reason required for every departure, published with the sentence. The table is presumptive, never mandatory: it binds nobody, and it hides nothing.

How it would work

1. A table, not a minimum. A mandatory minimum takes the decision away from the judge and gives it to the prosecutor, who chooses the charge. A presumptive table leaves the decision with the judge and asks only that a departure be explained. The federal guidelines are already this, after Booker. The change is that the departures, and the judges who make them, become visible.

1. Every sentence, by judge, in public. Sentences are public records pronounced by public officials. For every felony sentence, the jurisdiction publishes the offence, the criminal history category, the table range, the sentence imposed, and the name of the judge, within 30 days. The Sentencing Commission already holds this data for the federal courts; it publishes it with the judge removed. Put the judge back.

1. A reason in writing. A sentence outside the range carries a written statement of reasons, as federal law already nominally requires, published with the sentence. "The court finds the guideline range inadequate" is not a reason. A sentence that departs because the defendant is the sole carer for a disabled child is a reason, and a reader can judge it.

1. An honest commission. The table is set by an independent commission with judges, prosecutors, defenders and the public on it, which publishes its data and recalibrates yearly. Minnesota's rule is adopted: the table's total demand on prison beds is calculated in advance and published, so that a legislature that raises the ranges is told, in cells and dollars, what it just bought.

1. The same table for the same crime. Within a state, the presumptive range for an offence is the same in every county. A county that wants to be harsher may say so in its departures, in writing, one case at a time.

1. The charging half. Sentencing is half the disparity. The other half is the choice of charge, made in private by a prosecutor. This proposal publishes the sentence; № 095, The Bail Table, and a charging register this catalog will come to, take the rest. It is said here so no one thinks the table alone is the answer.

The numbers

What the gap is worth. Two years of federal prison costs about $85,000 at the Bureau of Prisons' per-inmate figure, before the cost to the person and their family. Across roughly 60,000 federal sentences a year, if inter-judge variation alone adds an average of even a few months to sentences that a consistent table would not, the country is spending on the order of hundreds of millions of dollars a year imprisoning people for the outcome of a lottery.

What publication costs. Nearly nothing. The federal data exists; the states that have tables have the data; the rest need a form. A national portal to publish all of it is a rounding error against a $80 billion national corrections budget.

What Minnesota shows. A state that has run a presumptive table tied to capacity for 45 years imprisons its people at about half the national rate, with crime rates no worse than its neighbours. The table did not cause mass incarceration. The decision to set the table high, made elsewhere in the 1980s, did.

The honest objections

"Publishing by judge invites harassment of judges." Judges are already named on every opinion and every sentence in open court; what is new is the aggregation. The risk is real and the answer is not anonymity, because an anonymous judge cannot be held to a pattern. It is that the pattern itself, published, protects a judge as often as it exposes one: the judge accused of leniency after one case can point to a record that is in range nine times out of ten.

"Tables are how mass incarceration happened." The federal table of 1987 was set high, and it was made mandatory, and both were choices. Minnesota made different choices with the same instrument. A presumptive table with a published bed count does the opposite of what the federal one did: it tells the legislature, before the vote, what a harsher range costs. The tool is not the level.

"Every case is different, and a table flattens that." Every case is different and the table is presumptive for that reason; a judge departs with a sentence in writing. What a table flattens is not the case but the judge, and that is its purpose. The defendant with the disabled child deserves the departure. The defendant who drew the harsher courtroom does not deserve the two years.

*"Booker means a presumptive table is unconstitutional." Booker* held that a mandatory range based on facts a jury had not found violated the Sixth Amendment. A presumptive range that a judge may leave is exactly what the Court left standing, and it is what the federal courts have used for twenty years. Publishing it does not change its legal character.

"The disparity is in the charge, not the sentence, so this measures the wrong thing." Partly true, and item 6 concedes it. But the sentence is the part that is public already, and starting where the record is honest is how a country learns to keep an honest record of the rest.

Sources

• Crystal S. Yang, "Have Interjudge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker," New York University Law Review 89:4 (2014)
• Ryan W. Scott, "Inter-Judge Sentencing Disparity After Booker: A First Look," Stanford Law Review 63 (2010)
• Paul J. Hofer, "Federal Sentencing after Booker," Crime and Justice 48 (2019)
• United States Sentencing Commission, Demographic Differences in Federal Sentencing (2023) and annual Sourcebook of Federal Sentencing Statistics, ussc.gov
• United States v. Booker, 543 U.S. 220 (2005)
• Robina Institute of Criminal Law and Criminal Justice, University of Minnesota, Sentencing Commissions and Guidelines by the Numbers, on the seventeen guideline jurisdictions
• Minnesota Sentencing Guidelines Commission, 2026 Report to the Legislature and annual felony sentencing statistics, mn.gov/sentencing-guidelines
• Bureau of Prisons, annual cost of incarceration per inmate, Federal Register; Bureau of Justice Statistics, state and federal corrections expenditure
• Proposals № 055 (The Warrant Standard); № 056 (The Clearance Rate); № 058 (The Use-of-Force Register); № 095 (The Bail Table, forthcoming)