Haven recent ballot measures and statutes eliminated the role of discretion?
No. By far the most numerous cases in our system are less serious crimes which are not covered by mandatory minimum sentences or even by the sentencing guidelines that apply to felonies. The guidelines allow for departure to serve compelling and substantial interests, but even for those cases subject to mandatory minimum sentences, judges have tremendous discretion to impose greater sanctions than those required. They frequently have discretion whether to impose consecutive or concurrent sentences. And in the great majority of cases, judges have wide discretion whether to impose incarceration or probation with conditions, to structure conditions of probation and to recommend programs during incarceration, and whether and when to revoke probation or to continue probation with modified conditions. Without sentencing support technology, all of these decisions are commonly based on ideology, philosophy, or faith; they are almost never made based on (or even with access to) information abou
