Blakely's Silver Lining; Sentencing Guidelines, Judicial Discretion, and Crime

The Supreme Court's recent decisions in United States v. Booker and Blakely v. Washington, invalidating mandatory criminal sentencing guidelines, could have the unexpected benefit of reducing crime. This Article is the first to use regression analysis to explore the relationship between sentencing guidelines and crime. It shows that adoption of guidelines is associated with significant increases in crime, contrary to the expectations of many of the original supporters of sentencing guidelines. After developing several economic theories about the relationship between guidelines and crime, the author investigates this relationship empirically using a large, state-level data set.

The analysis shows that guidelines restricting judicial discretion in criminal sentencing are associated with increases in both violent crime and property crime. If, as is probable, the alternatives to guidelines after Booker and Blakely expand judicial discretion in sentencing, then crime may decrease substantially.