In Depth: Sentencing Guidelines and Correctional Resource Management

Unbalanced scales

Sentencing guideline systems exist, in part, to monitor prison growth, prioritize the use of limited correctional resources, and avoid prison overcrowding. Statutes sometimes mandate that sentencing commissions write guidelines, for example, “with due regard for resource availability and cost.”[1] Today, all sentencing commissions are required to consider the fiscal and structural impact of their recommendations for the future in some manner. However, the language varies widely and the effect of resource management directives is more pronounced in some jurisdictions than in others. This article examines some of the ways in which jurisdictions have employed sentencing guidelines to stem the tide of rising correctional populations, curb spending, and make better use of existing correctional resources. The article also reviews research on the effectiveness of those efforts.

Prison growth in the United States has often seemed overwhelming and insurmountable.  The Sentencing Project reports a 500% increase in the total national jail and prison population in the forty years between 1973 and 2013.[2] Individual state prison growth has had a large collective effect on the rise of the U.S. prison population. In most states, factors including “tough on crime” politics, racial animus, public sentiment about drugs, and willingness to expand the prison industry led to harsher sentencing policies.[3] In turn, poor prison conditions, budgetary problems, and many other crises arose from the new influx of incarcerated people those policies created.[4]

While “state-level policy choices have been the largest driver of our unprecedented national experiment with mass incarceration, […] not every state has contributed equally or consistently to this phenomenon.”[5] Some states worked to deliberately control the expansion of correctional populations and predict future needs. As incarceration rates were rising, so were the number of states with sentencing commissions and guidelines; these institutions allowed for more intentional and considerate policymaking.[6] However, there has been a debate about whether the goal of guidelines is to slow or reduce prison growth or merely to allocate enough resources towards further growth.[7] For further information, see Why Have U.S. State and Federal Jurisdictions Enacted Sentencing Guidelines?

Two main objectives of most guidelines schemes were (and are) to enhance uniformity and fairness and to properly plan and budget for future correctional populations. States like North Carolina, Minnesota, and Washington went further and began to operate under a “population constraint” model, making certain that “the number of inmates sentenced to prison would not exceed the capacity of state prisons to hold them.”[8] It is important to note, however, that while some states wanted to control growth and spending, others were more concerned with just having enough information to plan for new prisons and calculate a correctional budget. 

Sentencing experts consider the use of resource management tools in guidelines to be a best practice in the field. The Model Penal Code: Sentencing, for example, recommends that jurisdictions begin with an “omnibus” review of the current sentencing system; including an assessment of the adequacy of correctional resources.[9] It further suggests that in drafting or amending guidelines, commissions should make use of correctional population forecasting and produce sentencing schemes that the existing state and local infrastructure can accommodate.[10]

Sentencing policy has begun to shift in many states and in 2009, the prison population decreased for the first time in 38 years. Large budget shortfalls in the wake of the Great Recession caused some population decrease by forcing states to release prisoners. In addition, the cumulative - and sometimes delayed - effects of policies enacted when “states began to realize they could effectively reduce their prison populations, and save public funds, without sacrificing public safety,” also drove the reduction.[11] However, it is difficult to know the exact amount of influence sentencing guidelines had on either slowing or reversing prison growth in the states where they were present. This is in part because scholars have found it difficult to isolate the effects of the guidelines from the effects other policies also designed to do the same things.[12]

In 1995, a study compared prison population growth in nine states with presumptive sentencing guidelines before and after the guidelines were put into effect.[13] After controlling for various factors,[14] the study found that states with presumptive guidelines focused on population management curbed their prison growth rates. A 2004 study began with the hypothesis that “over time, guidelines that link sentencing decisions to correctional resources help to mitigate prison populations, while those that do not tend to contribute to growth in that area.”[15] Controlling for various factors,[16] the results of the study suggested that “to ensure that mandatory guidelines do not increase commitment and incarceration rates, lawmakers must explicitly link sentencing recommendations to available correctional resources.”[17]

Other researchers have focused on sentencing guidelines more generally and their effect on prison populations. One study that analyzed a variety of sentencing policy reforms concluded that, in particular, presumptive guidelines in states that limit or abolish parole release discretion tended to stem prison growth.[18] Another more recent study also suggested a similar outcome: that sentencing guidelines “taken in combination with other reforms [particularly prison release reforms] tended to reduce imprisonment growth over indeterminate sentencing.”[19] This study also found that sentencing reforms like truth-in-sentencing enacted outside of a guidelines system tended to increase the prison population.[20]

Apart from academic studies, anecdotal evidence shows that some individual state systems have benefitted significantly from resource management oriented guidelines. For example, North Carolina was able to use sentencing guidelines that focused on diversion programming and reserving prison beds for high-risk offenders to maintain a prison growth rate between 1993 and 2013 that was well below the national average.[21] In Kansas, the state’s unique prison-overcrowding early warning system[22] (described further in the table below) made politicians and state officials hesitant to advocate expansive correctional policies. This drove a marked decrease in the rate of prison growth throughout the 1990s; Kansas is currently also below the national average in incarceration.[23]

It appears that sentencing guidelines that consider resource management do work, especially as part of a concerted, intentional strategy to spend money and use prison beds more wisely. Today, the language of guidelines statutes universally requires some consideration of these factors but varies widely. In some jurisdictions like Kansas, there are complex population projections and fiscal calculations strongly guiding state policy.[24] In others, such as Delaware, there is simply a mandate to “consider” resource availability and cost.[25]

The table below presents the current statutory or policy language in each jurisdiction. For some jurisdictions, there are also examples of typical Commission work products related to resource management, including annual prison projections, legislative fiscal notes, and other documents. This information may be useful in gaining further understanding this important topic.

[1] Del. Code Ann. tit. 11 § 6580(c) (2017).

[2] The Sentencing Project, Trends in U.S. Corrections (Dec. 2015),….

[3] See Kevin B. Smith, The Politics of Punishment: Evaluating Political Explanations of Incarceration Rates, 33 J. of Politics 925 (2004); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010); National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences (Jeremy Travis et al., eds., 2014).

[4] See, e.g., Brown v. Plata, 563 U.S. 493 (2011) (a Supreme Court decision holding that California prison conditions, particularly regarding inmate medical treatment, violated the 8th Amendment); Reid Wilson, Prisons in These 17 States are Over Capacity, Wash. Post, Sept. 20, 2014,…; Adam Skolnick, Runaway Prison Costs Thrash State Budgets, The Fiscal Times, Feb. 9, 2011,….

[5] Peter Wagner, Prison Policy Initiative, Briefing: Tracking State Prison Growth in 50 States (May 28, 2014)

[6] Alexis Lee Watts, Robina Institute, Formation of Sentencing Commissions, 1978-Present…. Between 1978 and 2011, 27 U.S. jurisdictions created sentencing commissions. Between 1979 and 2006, 23 U.S. jurisdictions also produced sentencing guidelines. Id.

[7] See, e.g., Richard S. Frase, State Sentencing Guidelines: Diversity, Consensus, and  Unresolved Policy Issues, 105 Colum. L. Rev. 1190, 1216 (2005).

[8] Nat’l Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences at 76-77 (2014)

[9] Model Penal Code: Sentencing § 6A.09(1)(b) (Am. Law Inst. Proposed Final Draft, Apr. 2017).

[10] Id. at § 6B.02(9).

[11] The Pew Center on the States, Prison Count 2010 at 3 (Apr. 2010),….

[12] Thomas B. Marvell, Sentencing Guidelines and Prison Population Growth, 85 J. Crim. L. & Criminology 696 (1995).

[13] Id.

[14] Controlling variables included year and state dummies (to account for random variations related to each year or state), percentage of population ages 18 to 24 and 25 to 34, per capita personal income, employment rate, and major crime rate. Id. at 703.

[15] Sean Nicholson-Crotty, The Impact of Sentencing Guidelines on State-Level Sanctions: An Analysis Over Time, 50 Crime & Delinquency 395 (2004).

[16] In this study the controlling variables were numerous and included percentage of population ages 18 to 24 and 25 to 34, percentage of the state population that is Black, percent of the population residing in metropolitan areas, state population, personal income per capita, employment rate, the index crime rate, and a measure of citizen liberalism. Id. at 404.

[17] Id. at 408.

[18] Don Stemen et al., Vera Inst. of Justice, Of Fragmentation and Ferment: The Impact of State Sentencing Policies on Incarceration Rates, 1975-2002 (Aug. 2005),

[19] Mark G. Harmon, “Fixed” Sentencing: The Effect on Imprisonment Rates Over Time, Criminology and Criminal Justice Faculty Presentations, Paper 15 at 31-32 (2013),….

[20] Id.

[21] Richard S Frase, Just Sentencing 161 (2013); see also Daniel F. Wilhelm, Vera Inst. of Justice, Sentencing Policy in Tough Budget Times: What are States Doing? at 13,…;  E. Ann Carson & Elizabeth Anderson, Bureau of Justice Statistics,  Prisoners in 2015 (Dec. 2016),

[22] See Kan. Stat. Ann. § 74-9101(15) (2017).

[23] Wilhelm, supra note 21; Carson & Anderson, supra note 21.

[24] Kan. Stat. Ann. §§ 21-6822, 74-9101(15) (2017).

[25] Del. Code Ann. tit. 11 § 6580(c) (2017). However, note that some commissions have not complied strictly with their resource management mandate. See, e.g. Kate Stith, Principles, Pragmatism and Politics: The Evolution of Washington State’s Sentencing Guidelines 76 L. & Contemp. Problems 105 (2013).

[26] 2000 Ala. Acts 596, p. 1192, 1196-97 § 9.

[27] Ala. Code § 12-25-31 (2017).

[28] Ala. Sentencing Comm’n, 2017 Report,….

[29] Ark. Code. Ann. § 16-90-802(d)(4), (6) (2017).

[30] Ark. Sentencing Comm’n, Impact Assessment for HB1172 (Jan. 2017)….

[31] Wendy Ware & Roger Ocker, Ark. Dep’t of Corr., Sentencing Comm’n, & Dep’t of Cmty. Corr., Ten-Year Adult Secure Population Projection (June 2016),…

[32] D.C. Code § 3-106 (2017).

[33] D.C. Dep’t of Corr., Correctional Facilities, (last visited Dec. 13, 2017);

[34] See, e.g., Kelly Lyn Mitchell, Initial Guidelines Experiences in Other States (2017),

[35] D.C. Advisory Comm’n on Sentencing, Report (2000),…

[36] Del. Code Ann. tit. 11 § 6580(c) (2017).

[37] Carson & Anderson, supra note 21 at 27 (Appendix Table 1). See, e.g., Richard S. Frase, Lessons of State Guideline Reforms, 8 Fed. Sent’g Rep. 39 (1995) (noting that in 1984 the federal Sentencing Commission was mandated by statute to “minimize the likelihood” of prison overcrowding under 18 U.S.C. 994(g), but that “the Commission did not take this directive seriously in formulating the initial guidelines […] and prison capacity management has never even been mentioned by the commission as a reform goal.”).

[38] Fla. R. Crim. P. Rule 3.701 (2017).

[39] Kan. Stat. Ann. § 74-9101(15) (2017). Options for reducing the prison population under the statute include either reducing the number of prison admissions or adjusting sentence lengths for some groups of offenders. The first option may be achieved by modifying sentencing grids to allow for more “intermediate dispositions” that do not involve incarceration.

[40] Kan. Stat. Ann. § 21-6822 (2017).

[41] Kan. Sentencing Comm’n, Fiscal Year 2017 Adult Inmate Prison Population Projections (Aug. 2016),….

[42] Kan. House Comm. on Corr. & Juvenile Justice, Supplemental Note on H.B. 2089 (2017),…

[43] Md. Code Ann., Crim. Proc. § 6-202 (West 2017).

[44] Md. Code Ann., Crim. Proc. § 6-213 (West 2017).

[45] Md. Code Ann., Crim. Proc. § 6-212 (West 2017).

[46] Md/ Dep’t of Legislative Serv., H.B. 1173 Fiscal and Policy Note (Mar. 2016),

[47] Mass. Gen. Laws ch. 211E, §§ 1(c)(8), 2(6) (2016).

[48] Mass. Exec. Office of the Trial Court Dep’t of Research & Planning, Survey of Sentencing Practices, FY 2013 (Dec. 2014),…

[49] Michigan created a Criminal Justice Policy Commission in 2014, which began work the following year. 

[50] Mich. Laws 769.33a (1)(d) (2016).

[51] Id. at (1)(f)(ix), (2).

[52] Minn. Stat. § 244.09, subd. 5 (2017).

[53] Minnesota Sentencing Guidelines Commission, Report to Legislature at 14–15 (Jan. 1980),….

[54] Minn. Sentencing Guidelines Comm’n, Sentencing Practices: Impact of Select Statutory Enhancements (Oct. 2010),…

[55] N.C. Sentencing & Policy Advisory Comm., Structured Sentencing Training & Reference Manual 1 (Dec. 1, 2014),….

[56] N.C. Gen. Stat. § 120-36.7 (2016).

[57] Ohio Rev. Code Ann. §§ 181.23, 181.24(A), (C) (West 2016).

[58] Ohio Rev. Code Ann. § 181.25(4) (West 2016). 

[59] 1987 Or. Laws ch. 619, § 2(3),

[60] Or. Rev. Stat. § 137.656(2) (2016).

[61] See Or. Admin. R. 213-002- 0001(1) (2017) (“The primary objectives of sentencing are to punish each offender appropriately, and to insure the security of the people in person and property, within the limits of correctional resources provided by the Legislative Assembly, local governments and the people.”); Or. Admin. R. 213-002-0001(3)(a) (2013) (one of the “basic principles” underlying the guidelines is that responses to crime and release violations must reflect available resources because “[a] corrections system that overruns its resources is a system that cannot deliver its threatened punishment or its rehabilitative impact”).

[62] 42 Pa. Con. Stat. Ann. § 2153(a)(15) (2016).

[63] Tenn. Code § 40-35-102 (5) (2016).

[64] Utah Code § 63M-7-404(1)(b) (2016); see also Utah Code § 63M-7-404(2)(b) (2015) (stating that guideline modifications pursuant to "the recommendation[s] of the Commission on Criminal and Juvenile Justice for reducing recidivism" are "for the purposes of protecting the public and ensuring efficient use of state funds.").

[65] Utah Sentencing Commission, Adult Sentencing and Release Determinations: Philosophical Approach at 2 (2012),

[66] Utah Sentencing Comm’n, Adult Sentencing & Release Guidelines at 4 (2015)….

[67] Va. Code Ann. § 17.1-803(8) (2016).

[68] Va. Code Ann. § 30-19.1:4 (2016).

[69] Va. Criminal Sentencing Comm’n., 2016 Annual Report (Dec. 2016),

[70] Wash. Rev. Code § 9.94A.010(6) (2016).