42 Years of Impactful Scholarship

ILJ Online

ILJ Online is the online component of Fordham International Law Journal.

Should the United States Reconsider Structured Sentencing? Comparing Irish and US sentencing law

Sentencing guidelines aim to create a system that promotes both consistency and proportionality. In return, consistent and proportional sentencing promotes fairness for the accused and builds community trust in the judiciary.

The US Congress has set minimum and maximum punishments for various crimes, which Federal Judges use to establish sentences. One example is the use of mandatory minimum sentences for  possession of narcotics. The US Sentencing Commission (“USSC”) is in charge of providing recommendations for the degree of punishment for different crimes. In US v. Booker the US Supreme Court held that the USSC guidelines are to be considered as advisory as opposed to mandatory.[1] The intended benefit of structured sentencing is to eliminate bias excluding irrelevant factors such as race or social class.  It is clear that this kind of system does not completely fix the issues of consistency and proportionality, and arguably does not end bias. [2] Although the Supreme Court held in  Booker  that sentencing guidelines are advisory, one should keep in mind that the case applies only to federal courts. Structured sentencing remains an important feature of American criminal Justice.

Ireland, on the other hand, has no structured sentencing. Proponents of non- structured sentencing argue that judges are better equipped to tailor punishments based on the individuality of each crime.[3] I will compare sentencing in Ireland and the United States, and argue that a move toward non-structured sentencing in the United States would promote the goals of proportionality and consistency.

Although judges in the United States generally have discretion in sentencing, the Supreme Court has set some limits on judges enhancing sentences beyond the maximum. In Apprendi, the  Supreme Court addressed New Jersey’s hate crime statute that gave judges the authority to increase sentencing based on facts proven merely by a preponderance of the evidence, rather than beyond a reasonable doubt.[4]  The Supreme Court found such authority to be unconstitutional under the Sixth Amendment. Under Apprendi, only prior convictions can justify a sentence in excess of a statutory maximum without being submitted to a jury and proven beyond a reasonable doubt.[5] The Court reinforced Apprendi in Blakely v. Washington (2004), by invalidating a Washington state statute that gave judges discretion to go beyond the maximum sentence where there is a judicial finding of a substantial or compelling reason to increase the sentence.[6]

While cases like Apprendi and Blakely limit American judges’ ability to go beyond statutory maximum, they retain significant discretion to be more lenient than the sentencing guidelines recommend.  In United States v. Gall, a man was found guilty for conspiracy to sell ecstasy. Guidelines recommended 30-37 months of imprisonment, yet the court decided to give the defendant thirty-seven months of probation, due to various factors such as the defendant completing school and being a rehabilitated drug user. The court found that a variance from sentencing guidelines is permissible even in the absence of extraordinary circumstances.[7]  Further, the Supreme Court allowed a district court to not follow sentencing guidelines which recommended punishing possession of crack cocaine 100 times more severely than possession of powder cocaine.[8]

In contrast, Ireland has no guidelines for sentencing.  Rather, general principles are derived from landmark judgements. Presently, the Court of Appeals utilizes a two-stage approach for sentencing. First, the court locates the offense and the gravity of that offense.  Second, the court makes adjustments for particular circumstances. Judges therefore possess a high level of discretion when it comes to rape sentencing.

Sentencing in Irish rape cases is instructive. Although rape is punishable by a life sentence in Ireland, this rarely happens.  Even in cases where multiple rapes have occurred or there are other aggravating factors, unless there is a pattern of sexual child abuse, it is very rare for a life sentence to be established.  For example, the Irish Supreme Court, in DPP v. Tiernan, held that since rape is punishable by a maximum sentence of life in prison, there are very few exceptions where rape does not warrant custodial punishment. Therefore, a substantial amount of immediate imprisonment should be given even without aggravating circumstances.[9]  However, the Court did not rule out the possibility that, in extreme circumstances, a shorter sentence or even no imprisonment may be justified. In Tiernan, the victim was gang raped by three men, while sitting in a car with her boyfriend. There were a series of aggravating factors, including the fact that the perpetrators pulled her out of the car and physically abused her.  Even in such an extreme situation, the Supreme Court sentenced the accused to a term of twenty-one years, which was ultimately reduced to seventeen.[10] 

Prolonged abuse of children can also be punished very severely in Ireland. Analysis of the duration, frequency, and intensity of the abuse are key in determining the severity of the punishment. Other factors that tend to impact the sentencing include whether or not the defendant held a position of authority the ages of the defendant and victim, victim vulnerability, and breach of trust..[11] Serial child abuse without rape is usually given a sentence ranging from ten to seventeen years. For instance, in DPP v. Griffin, the defendant was sentenced to life imprisonment for sexually abusing a child from the age of eight to sixteen. [12] However, punishment is not limited to that range; the Supreme Court later found the life sentence in Griffin too harsh and substituted a fifteen-year sentence.

While proponents of structured sentencing argue that it creates more consistency and proportionality in the sentencing process, there are advantages to a less rigid system, like that of Ireland. In jurisdictions with structured sentencing, judges still exercise discretion and account for mitigating and aggravating factors. This trend has grown after Booker. Strict guidelines, while intending to eliminate bias, have been shown to disproportionately impact low-income and minority defendants.[13] Strict guidelines on drug crimes that affect low-income communities, such as possession, sale, and use of crack cocaine, are sentenced more harshly than other drug crimes. [14] Establishing mandatory minimums does not allow judges to take these facts into account. Each case has its own set of unique circumstances. More dynamic sentencing may ultimately provide a fairer system, as it permits sentencing tailored to the individual circumstances of a crime. Although the cases analyzed above demonstrate that multiple cases with very similar facts may end up with very different sentencing results under such a system, most of the differences in the above cases are not very significant.

As a result, I believe the trend towards a more dynamic sentencing system is the right path to be taken, and states will benefit from looking at sentencing on a less rigid case-by-case basis.

Eric Freiman spent the summer of 2018 as an intern in the chambers of Justice Deirdre Murphy at the Irish High Courts in Dublin. 

This post is a student blog post and in no way represents the views of the Fordham International Law Journal.


[1] United States v. Booker, 543 U.S. 220, 245 (2005).

[2]Mona Lynch, Institutionalizing Bias: The Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment, 41 Am. J. Crim. L. 91, 93 (2013)

[3] Matthew Van Meter, One Judge Makes the Case for Judgment, The Atlantic, February 25, 2016, https://www.theatlantic.com/politics/archive/2016/02/one-judge-makes-the-case-for-judgment/463380/

[4] Apprendi v. New Jersey, 530 U.S. 466, 468 (2000).

[5] Id. at  485.

[6] Blakely v. Washington, 542 U.S. 296, 313 (2004).

[7] Gall v. United States, 552 U.S. 38, 42 (2007).

[8] Kimbrough v. United States, 552 U.S. 85, 110 (2007).

[9] DPP v. Tiernan [1988] 190 IR 250 (SC) (Ir).

[10] Id.

[11] DPP v. Payne (Unreported, CCA, 27th July, 1999).

[12] DPP v. Christopher Griffin [2011] IECCA 62 (CCA) (Ir).

[13] Chief Judge Patti B. Saris, Sentencing Reform, Boston B.J., Summer 2015, at 6

[14] T. Michael Andrews, Unequal Sentences the Crack and Powder Cocaine Disparity, Ariz. Att'y, April 2008, at 23, 22