ADIR - L'altro diritto

ISSN 1827-0565

Sentencing in the American federal system

Salvatore Cannata, 2002


The need to reform the Italian sentencing system rests on its long term deficiencies. Mainly responsible for these deficiencies is the key norm on sentencing, the article 133 of the Criminal Code, whose ample and scarcely prescribing formulation made possible all sorts of interpretations. The 133 article justifies an "arbitrariness of punishment" explained also by the habit of the Italian lawmakers to use very high edictal limits, therefore inevitably giving to the courts plenty of room for interpretation.

These and other causes lead to a crisis of the Italian sanctioning system that is common to many other western democracies, included the USA.

The attentive analysis that this research attempts of sentencing in the American system could therefore point at a possible solution for the crisis in liberal democracies of the sentencing systems, as regards both their efficiency and their legitimization. A reform of the Italian sentencing system cannot ignore a study of the American reform, centered as it is on an idea of strictly determined sentencing, that leave no room to arbitrary interventions of the courts.

The first part of the research is an historical introduction of the American reform, describing the evolution of American sentencing from the affirmation of the "indeterminate sentencing principle" to the 1984 Sentencing Reform Act. The third chapter in particular presents an in-depth analysis of the 1984 Sentencing Reform Act and of the appointment of the United States Sentencing Commission: the preconditions of the new "Federal determinate sentencing system".

The second part of the research takes into account the content of the reform, discussing the "federal sentencing guidelines" and their fixation in the United States Guidelines Manual.

The last part of the research presents a critical reflection on the actual functioning of the new sentencing system, and questions its excessive sternness and strictness.