The Sentencing Commission, created in 1993, is tasked with advising the legislature, the governor, and the judicial council on appropriate sentencing and parole release decisions. It is comprised of almost thirty individuals appointed by the governor who have “boots on the ground” knowledge of the criminal justice system through their roles as prosecutors, defense attorneys, judges, police chiefs, victim representatives, and department of corrections representatives. Collectively, they bring centuries of practical knowledge and experience to the table, which is crucial to create criminal justice policy that actually works.
But the Sentencing Commission does more than advise and make recommendations. In reality, they have more influence over criminal sentencing than the legislature. Every few years, they draft a new set of sentencing guidelines that determines the presumptive sentence an offender receives. At the heart of the guidelines is “The Matrix.” It consists of tables for different types of crimes. In each table, rows correlate to a different level of criminal history, and columns with a category of crime. Find the right row and column, and one can determine the length of an offender’s presumptive sentence and whether it consists of probation, jail, or prison.
While judges are not legally bound to impose these presumptive sentences, there is a lot of institutional pressure to follow the guidelines, and judges rarely deviate from them.
In practice, this means that even though the legislature has decreed that aggravated assault, sexual abuse of a sixteen-year-old, and drug possession with priors are all third-degree felonies punishable by up to five years in prison, the presumptive sentence for each crime varies significantly. An offender with eleven points of criminal history will have a presumptive sentence of ninety days in jail followed by probation, a prison sentence of forty-two months, or solely probation, respectively.
Whether or not you substantively agree with the guidelines the Commission has created, it is concerning that so much power has been delegated to individuals who are both unelected and unaccountable. Most Utahns don’t even know the Commission exists. True, if one knows the Commission exists, it is possible to attend their meetings and to comment on their proposed guidelines. Additionally, the Commission presents their proposed guidelines to a legislative committee for feedback. However, at the end of the day, elected officials are not giving a “yes” or “no” vote to these guidelines, and there is no way for the public to vote someone out of office if they believe the guidelines are . . . misguided.
Determining what behavior is criminal and what punishments are attached is a core function of government. And while stakeholders, like the members of the commission, do make valuable contributions, their role should remain advisory. Ultimately, elected and accountable legislators should be determining what sentences the state doles out.
Criminal Justice Policy Analyst
Amy was the Justice and Due Process Policy Analyst at Libertas Institute.