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Structuring Sentencing Decisions American sentencing laws and practices underwent more extensive changes in the 197~1980 period than in any other 5-year period in American history. In this chapter we review the range of sentencing innovations adopted since 1960, examine the uses of research in the development of sentencing standards, and consider problems related to the imple- mentation and enforcement of sentencing policy innovations. THE VARIETY OF INNOVATIONS THE RETREAT FROM INDETERMINACY Twentieth-century American sentencing systems before 1976 are com- monly referred to as "indeterminate." Under indeterminate sentencing judges and parole boards have wide discretion in setting prison terms within broad statutory ranges for sentence length. Usually the actual length of a prison term remains unknown to a prisoner until the parole board authorizes release. This broad discretion and uncertainty was intended to facilitate individualized treatment for purposes of rehabil- itation. In the state of Washington during much of this century, for example, judges only decided who received prison sentences: they were required by law to impose the statutory maximum sentence on all offenders to be imprisoned, and the parole board decided how long any prisoner actually remained in prison. Under the indeterminate sentencing laws 126

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Structuring Sentencing Decisions 127 of other states, judges have more influence. In Pennsylvania, for ex- ample, judges set both the maximum and the minimum sentence; the minimum cannot exceed half the maximum, and the parole board's authority is confined within the range set by the judge. Although the division of authority between judges and parole boards varies from state to state, the systems are indeterminate: discretion is broad and the duration of imprisonment remains unknown until the parole authorities actually release the prisoner. What most of the sentencing changes of recent years have in common is their rejection of this pattern in which judges and parole boards make ad hoc decisions, subject to few meaningful constraints, and are effec- tively immune from review. The narrowing of discretion and the intro- duction of greater certainty into sentencing have taken many different forms. Some jurisdictions abolished parole release entirely: California established detailed statutory standards for prison sentences, Minnesota established a detailed system of presumptive sentencing guidelines, and Maine established no standards at all. Other jurisdictions made other changes: Pennsylvania adopted both mandatory minimum sentences and sentencing guidelines while retaining parole release; and in Washington the parole board established parole guidelines, the judiciary established sentencing guidelines, and the legislature later created a commission charged to develop sentencing guidelines to take effect in 1984. CLASSIFICATION OF OFFENSES The federal criminal laws and those of most states developed adventi- tiously. New offenses were created and existing sentencing laws were amended in response to particular notorious events or social changes. Sentences authorized for particular offenses varied widely, reflecting the emotions, personalities, attitudes, and political imperatives of particular times (see National Commission on Reform of Federal Criminal Laws, 1970:1246 49~. As a result, anomalies characterize the sentencing laws of many jurisdictions. Offenses of comparable seriousness are often subject to substantially different penalties: federal law, for example, recently specified a maximum 20-year prison sentence for robbery of a federally insured bank and a 10-year maximum for robbery of a post office (see Senate Report 96-553:5, 1980), and offenses of different seriousness are often subject to the same maximum penalties. Consistent and evenhanded application of sentences is unlikely to be achieved in a system in which offenses and authorized sanctions are internally inconsistent and reflect no discernible logic. To introduce greater consistency to criminal law, the Model Penal Code developed

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128 RESEARCH ON SENTENCING THE SEARCH FOR REFORM by the American Law Institute (1962) classified all felonies into three classes, each bearing a specific maximum sentence of fine, probation, or imprisonment. More than 30 states have enacted new criminal codes in recent years, and these have followed the Model Penal Code's lead in classifying felonies into a small number of categories, usually three or five. Every proposed federal criminal code, from Study Draft of a New Federal Criminal Code (National Commission on Reform of Fed- eral Criminal Laws, 1970) to S. 1630, which was approved by the Senate judiciary committee on November 18, 1981, has provided for classifi- cation of felonies. REASONS REQUIREMENTS AND PRESUMPTIONS Accountability is enhanced if decision makers must justify their deci- sions. In most contexts judges must give reasons for their decisions: this allows affected parties to understand the rationale for the decision and facilitates appellate review by providing appellate judges with a basis for knowing whether the trial judge applied the appropriate rule to the case under consideration and for evaluating the persuasiveness of the reasons for the decision. Until recently, sentencing decisions were anomalous. Judges were seldom required to give reasons for the sentences they imposed, and sentence appeals were not usually available in most jurisdictions. There were for all practical purposes no bases or procedures for holding judges accountable for sentencing. Now, however, reasons requirements have been proposed and enacted in a number of forms. Criminal codes sometimes provide that judges may not impose par- ticular sentences unless they give reasons for doing so. The study draft of the National Commission on Reform of Federal Criminal Laws (1970) provides that judges may impose minimum sentences (Sec. 3201) or maximum sentences beyond specified lengths (Sec. 3202) only if the court "shall set forth in detail" the reasons for its decision. In a variation the study draft established presumptions in favor of nonincarcerative sentences and parole release at first eligibility (Sees. 3101, 3402) along with criteria for determining when the presumptions are overcome. These provisions do not expressly require that reasons be given for decisions, but the effect is the same. A defendant who contests a sentence to incarceration or retention in prison would assert that the presumption has not been overcome; the sufficiency of the decision-maker's contrary judgment and the reasons for it would be the issues under consideration on appeal.

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Structuring Sentencing Decisions 129 Most major sentencing innovations and proposals that provide criteria for decisions contain reasons requirements. The California Uniform Determinate Sentencing Law, for example, requires judges to give rea- sons for imposing a sentence not specified by the applicable statutory sections. Both sentencing guidelines systems and parole guidelines sys- tems typically require that decision makers provide reasons for decisions that do not adhere to the apparently applicable guidelines. While the commonsense case for reasons requirements in sentencing is straightforward and seldom contested, implementing these require- ments raises some practical questions. For example, requiring that judges give reasons for their sentencing decisions in every case may result in the trivialization of reasons; those given may become routine and me- chanical. Consequently, most reasons requirements obligate judges to give reasons only for exceptional decisions. A related practical question concerns the form for providing reasonswhether decision makers should be provided checklists that contain possible reasons for decisions or whether they be required to write out reasons of their own devising. (See Zeisel and Diamond t1977] for discussion of some of the difficulties involved in making reasons requirements meaningful.) SENTENCING INSTITUTES American trial judges work alone. Under indeterminate sentencing laws they have broad statutory flexibility, and they are typically not required to account for their decisions. Partly to facilitate communication among judges, the U.S. Congress in 1958 authorized sentencing institutes for the federal judiciary, and similar sentencing institutes have been held by many states. At these institutes judges discuss sentencing develop- ments and often engage in simulated sentencing exercises; they then discuss their respective reactions to the simulated cases and the sentences they would have imposed. The premises of sentencing institutes are that they familiarize judges with the views of their colleagues, thus allowing them to learn whether their own attitudes and opinions are consistent with general patterns; that newly appointed judges benefit from the accumulated experience and "going rates" of their colleagues; and that all participating judges become more self-conscious in sentencing. Every major criminal law reform body in recent decades has declared its sup- port for sentencing institutes. Widespread participation by judges in institutes over the last two decades may have increased their awareness of the dilemmas sentencing poses and their receptivity to proposals for reform.

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130 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM SENTENCING COUNCILS Sentencing councils are groups of judges who meet on a regular basis to discuss sentences for pending cases. Established in several federal district courts beginning in 1960, they were the first modern institutional innovation expressly aimed at reducing sentencing disparity. Each par- ticipating judge reviews presentence reports and prepares sentencing recommendations before attending the council meeting at which the recommendations are discussed. The recommendations are advisory, and the responsible judge in a case may disregard the recommendations. One of the rationales for sentencing councils is that the exchanges of views would sometimes cause judges to reconsider their initial sentencing recommendations because of incongruity with the recommendations of their colleagues. Several accounts indicate that the initial recommen- dations of judges do differ from their ultimate sentences in one-third or more of the cases that come before the councils (Levin, 1966:511; Phil- lips, 1980:36~. However, several major evaluations of sentencing coun- cils find evidence that sentencing councils do not eliminate substantial sentence disparity (Diamond and Zeisel, 1975; Phillips, 1980~. Like sentencing institutes, sentencing councils have been endorsed by every major criminal law reform body of recent years. ABOLITION OR REGULATION OF PLEA NEGOTIATION The legitimacy of the American dependence on plea negotiation as a primary method of case disposition has long been questioned. The Pres- ident's Crime Commission (1967) and the American Bar Association Task Force on Sentencing Alternatives and Procedures (1980) both re- viewed objections to plea bargaining and proposed methods to bring it into the open and to subject it to regulation. The National Advisory Commission on Criminal Justice Standards and Goals (1973:46) rec- ommended abolition of plea bargaining. At least nine major objections to plea bargaining have been asserted. First, until the 1970s, most plea negotiation was hypocritical: a majority of convictions resulted from guilty pleas, but defendants were required to deny in court that they had been offered inducements to plead guilty (President's Crime Commission, 1967:9~. Second, serious principled ob- jections can be made to the propriety of offering defendants inducements to waive their constitutional right to trial: in effect, prosecutors threaten to punish the assertion of trial rights by withholding from defendants benefits they would receive if they pleaded guilty. Third, there is always a risk that an innocent defendant will plead guilty from fear of being

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Structuring Sentencing Decisions 131 sentenced more harshly if convicted after trial: this risk is especially great when the defendant is offered a probationary sentence for pleading guilty and is threatened with going to prison if convicted. Fourth, plea- bargaining conflicts with the public interest in soundly administered Justice: presentence reports and other investigations of the defendant are generally only available after conviction and are not available at the plea-bargaining stage. Thus the judge must often approve or disapprove a proposed bargain without adequate information about the defendant. Fifth, plea bargaining can result in excessive leniency for professional criminals who are familiar with the courts' operations and are repre- sented by courtroom regulars: unsophisticated minor offenders who are unaware of the manipulative benefits of plea bargaining may simply plead guilty to the original charges and be treated relatively harshly. Sixth, institutionalized plea bargaining undermines the substantive crim- inal law: defendants plead guilty not to the offense they committed but to some lesser offense that has been negotiated. One often cannot know from the offense of conviction what offense was actually committed. Seventh, plea bargaining effectively shifts power to set sentences from judges to prosecutors. Eighth, plea bargaining reduces judges' aware- ness of investigations and arrests and thereby lessens their knowledge of police practices and their influence on them. Ninth, by merging the conviction and sanctioning decisions, plea bargaining increases the risk that each decision will not receive the separate attention that it should. Although the moral and practical case against plea bargaining is quite strong, several arguments have been made in its defense. First, it is sometimes said that the criminal courts would be grossly overburdened if plea bargains did not induce most defendants to plead guilty. ~ Supreme Court Chief Justice Warren Burger has observed (Santobello v. New York 404 U.S. 257, 260 t19713~: [Plea bargaining] is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities. Second, plea bargaining relieves defendants and prosecutors of the un- certainties of trial. Third, it can be used to mitigate the harshness of mandatory sentencing laws that prescribe punishments more severe than ~ For the contrary argument and supporting evidence that the majority of defendants would continue to plead guilty without plea bargains, see Feeley (1979:Ch. 8), Heumann (1978), and Rubinstein et al. (1980~.

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experience.) 132 RESEARCH ON SENTENCING THE SEARCH FOR REFORM a prosecutor believes are warranted. Fourth, plea bargaining in which leniency is exchanged for information, assistance, and testimony in other prosecutions can serve important law enforcement interests. Fifth, plea bargaining can be viewed as a form of dispute resolution in which the parties compromise their differences and thereby achieve a more mu- tually satisfactory resolution than if the parties were unfailingly adver- sarial. Sixth, plea bargaining permits prosecutors to achieve convictions in cases in which evidentiary or procedural problems might otherwise result in acquittals. Efforts have been made to "abolish" plea bargaining in full, or in part, in several jurisdictions. In Wayne County, Michigan, for example, the prosecutor forbade plea bargaining by his assistants in cases in which a firearm was used in the course of a felony (see Heumann and Loftin, 1979~. The most dramatic plea-bargaining ban occurred in Alaska. Ef- fective August 15, 1975, the attorney general banned plea bargaining in all its forms (Rubinstein et al., 19804.2 For much the same reasons that some prosecutors have attempted to ban plea bargaining, others have attempted to regulate it by establishing internal office policies governing charge and sentence bargains and sen- tence recommendations (e.g., Kuh, 1975a,b). Plea bargaining has also been regulated as part of more general efforts to establish and enforce office policies and systems of managerial controls (see Eisenstein and Jacob, 1977; Jacoby, 1980~. Efforts have been made in a number of jurisdictions to institutionalize plea bargaining. In one series of projects supported by the National Institute of Justice, scheduled plea confer- ences included the judge, the lawyers, andif they wished to partici- patethe defendant, the victim, and the involved police officer. (See Kerstetter and Heinz t1979] for a report on the Dade County, Florida, MANDATORY MINIMUM SENTENCES Between 1977 and 1980, mandatory minimum sentencing laws were adopted in 27 states and were under consideration in at least 14 others (U.S. Department of Justice, 1980a). Mandatory minimum sentencing laws take several forms but have as their common characteristic the statutory directive that convicted defendants whose offenses and prior 2 Because public prosecution is generally organized at local levels, most state attorneys general lack authority to promulgate such a ban and the means to enforce it. In Alaska, however, public prosecution is organized on a statewide basis.

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Structuring Sentencing Decisions 133 record fall within specified categories be sentenced to a prison term of not less than a specified period of years. Under some mandatory sen- tencing laws, judges retain the option to impose a nonincarcerative sentence but must impose a sentence of at least the mandatory minimum term on those whom they send to prison. Other laws expressly preclude nonincarcerative sentencing options and direct that all persons convicted of the designated offense receive a term of imprisonment of not less than the mandatory minimum term. Massachusetts's Bartley-Fox law, for example, provides that all persons convicted of unlawfully carrying a firearm be imprisoned for a term not less than 1 year. Other variants are more complicated. A Michigan law enacted in 1977 requires that persons convicted of the use of a firearm in a felony receive a prison sentence of not less than 1 year; both the firearms charge and the underlying felony charge have to be either pled or proved, and the minimum sentence law does not apply if either charge is not proved. STATUTORY DETERMINATE SENTENCING LAWS (ABOLITION OF PAROLE) Determinate sentencing laws take two forms. In the first, discussed in this section, a legislature specifies the presumptive sentences or sentence ranges. In the second, discussed in the next section, a legislature sets the general outlines of the sentencing system and the standards for sentences but delegates the responsibility for developing guidelines to . . . a sentencing commission. Determinate sentencing exists in those jurisdictions in which the lengths of prison sentences can be determined, assuming the prisoner's good conduct in prison,3 at the time the judge announces the sentence; the release date is not determined later, by a parole-type agency.4 By that criterion, at least nine states have enacted determinate sentencing laws: 3 Most state prisons operate good-time systems under which the length of any prison sentence can be reduced as a reward for good behavior while in prison. Throughout this report, discussion of the lengths of prison sentences should include the qualification "assuming good behavior in prison and that good-time credits are not administratively reduced or increased." 4 A somewhat different concept of determinacy includes parole systems under which release dates are set in the early months of confinement but excludes those jurisdictions that have not established relatively detailed standards for sentencing and parole decisions. (See van Hirsch and Hanrahan t1979:25-35] on the desirability and practicality of parole systems that set release dates early; on definitions of determinacy, see von Hirsch and Hanrahan t1981:29~2964.)

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134 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM Alaska, California, Colorado, Indiana, Illinois, Maine, Minnesota, New Mexico, and North Carolina. The statutory determinate sentencing sys- tems in those states vary widely. At one extreme, Maine abolished its parole board in 1975 when it enacted a comprehensive criminal code based on the Model Penal Code. Except for the maximum sanctions specified for each class of felonies, no criteria were provided to guide judicial sentencing decisions. Thus Maine judges retain the substantial unregulated discretion that judges typically have had under indeterminate sentencing systems. Because of the abolition of parole, however, prisoners can predict at sentencing when they will be released (see Zarr, 19764. California's Uniform De- terminate Sentencing Law, at the other extreme, abolished parole re- lease for most prisoners and enacted detailed statutory sentencing stan- dards. That law provides that, when sentencing offenders to prison, judges choose one of three specified sentences as the "base term" for persons convicted of a particular offense (for example, 2, 3, or 5 years for robbery). The middle term is to be imposed in an ordinary case. The higher or lower term may be imposed in cases with aggravating or mitigating circumstances. In addition, the California law provides for a variety of increments (called "enhancements") that can be added to the base term if various prior-record factors (primarily prior incarcerations) or aggravating offense circumstances are alleged and proved. Among the specified aggravating circumstances are use of a firearm or other dangerous weapon, serious bodily injury, and major property loss or damage. The other existing determinate sentencing laws range between those of Maine and California. They provide more guidance to judges than the former but less than the latter. Several criticisms of such laws have been offered. Zimring (1976) notes that sentencing is especially vulnerable to being politicized when detailed sentence criteria are placed before a legislature: introduction of amendments to increase sentences is politically effective evidence of a legislator's devotion to law and order. However carefully developed proposed statutory sentencing criteria may be, they can be altered simply by changing a number in a committee room or even on the floor of the legislature. The many bills introduced in the California legislature to increase sentence severity since adoption of the original determinate sentencing law provide some support for Zimring's observation. A related objection is that legislatures are not institutionally suited to the development and review of detailed sentencing policy. Sentencing is but one among many subjects competing for legislators' time and attention, and they lack special expertise in the subject. The legislative

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Structuring Sentencing Decisions 135 floor is a poor place for consideration of any subject that requires de- tailed, sustained attention. While legislatures are well suited to the adop- tion and enunciation of broad normative choices, they are institutionally less capable of the detailed policy making and gradual refinement of policy over time. For these reasons, legislatures have frequently dele- gated rule-making authority over technical subjects, such as regulation of securities and public utilities and, recently, sentencing, to adminis- trative agencies. A third objection is that statutory sentence criteria tend to shift dis- cretion from judges to prosecutors. When, as under California law, the offense of conviction and any pled and proved enhancements determine the applicable sentence, some sentencing power may be shifted from judges and placed in the hands of the lawyers participating in the plea- . . bargaining process. PRESUMPTIVE/PRESCRIPTIVE SENTENCING GUIDELINES AND SENTENCING COMMISSIONS Existing sentencing guideline systems differ on two important dimen- sions: their legal authority and the influence and role of empirical in- formation on past sentencing practices in generating the guideline sen- tences. Guidelines are presumptive or voluntary, depending on their legal force. Guidelines are also labeled "descriptive" or "prescriptive," depending on whether they are designed largely to articulate and codify past sentencing practices (descriptive) or are focused primarily on de- veloping new sentencing policies (prescriptive). Although there are four possible combinations of these dimensions, two principal combinations are actually found: presumptive/prescriptive guidelines, illustrated by those in Minnesota, Pennsylvania, and Washington; and voluntary/de- scriptive guidelines, illustrated by those in Denver and Massachusetts.5 In three jurisdictions, Minnesota, Pennsylvania, and Washington, the legislatures have delegated authority for developing detailed sentencing criteria to sentencing commissions. The sentencing commissions are charged to develop presumptive sentencing guidelines. Judges are ex- pected to impose sentences recommended by the guidelines in ordinary 5 Depending on the dimension of particular interest in each context, we may refer to sentencing guidelines simply as presumptive or voluntary or as "descriptive" or "pre- scriptive." A1SO7 "descriptive" and "prescriptive" are in quotation marks because these terms are widely used but not literally accurate: regardless of their origins, all guidelines are statements prescribing policy and most have used data describing past practice in some way in their development.

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136 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM cases and to provide reasons for sentences that do not follow the guide- lines. Minnesota's is a determinate sentencing system. Parole release has been abolished, and the sentencing guidelines specify "real-time" sentences. Pennsylvania's guidelines are indeterminate and affect only the minimum sentence to be served before parole eligibility: the parole board continues to decide when prisoners are released. The Washington guidelines will establish determinate sentences for offenders convicted after July 1, 1984, while the parole board will establish release dates for offenders convicted prior to that date until it ceases to exist on July 1, 1988. These presumptive guidelines have substantial legal authority, deriv- ing from the sentencing commission's legislative mandate. The guideline sentence must be imposed or an explanation provided as to why some other sentence was imposed. Both defendants and prosecutors have the right to have the sufficiency of that explanation reviewed by an appellate court. (By contrast, voluntary sentencing guidelines are hortatory and create no defendants' rights; noncompliance by judges does not give rise to a right of appeal. Voluntary guidelines have thus far been initiated by judges and not legislatures.) The operation of a presumptive guidelines system can be illustrated by the Minnesota guidelines. Table 3-1 shows the sentencing grid of the Minnesota Sentencing Guidelines Commission. The left-hand column lists the 10 categories of criminal offenses, and the top row lists the 7 categories of criminal offenders. The offense categories include all com- monly occurring criminal offenses, ranked in order of their seriousness. The offender categories are based on a defendant's "criminal history" (prior record), using a weighted scoring system developed by the com- . . mlsslon. The sentence for any defendant is found by first determining the offense severity and criminal history ranking and then consulting the cell of the sentencing grid in the applicable row and column. The cells above the bold block line call for sentences other than state imprison- ment: the numbers in these cells represent the prescribed lengths of stayed (i.e., unexecuted) sentences.6 Each cell below the bold line con- 6 In general, a stayed sentence is one that is not carried out. Two types of stayed sentences are permitted under Minnesota law: a stay of imposition and a stay of execution. A stay of imposition means the defendant is convicted of a felony, is given a probationary sentence (that may include up to 12 months in jail), and upon completion of the sentence the felony conviction is reduced to a misdemeanor on the record. If the offender violates probation, a felony prison term may be imposed. A stay of execution means that the defendant is convicted, a felony conviction is placed on the offender's record, the offender is placed on probation, and the felony prison term that is pronounced but not carried out may be executed if probation is violated.

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Structuring Sentencing Decisions a. Just Deserts (low) 1 111 > IN ~ v IV v Vl V111 IX (high) X (low) 1 11 IV - > an V I I V Vl V111 IX (high) X _ _ ! 1 1 1 I Imprisonment (low) 1 11 111 iV V Vl V11 V111 IX l I I I (high) X 0 1 2 3 4 5 6 (low) H ISTORY (high) high emphasisseverity very low emphasiscriminal history c. Incapacitation J Imprisonmen ~ (low) 1 11 111 lo: Al Oh V IV V Vl V111 IX I I I I I I J (high) X 0 1 2 3 4 5 6 (low) HISTORY (high) very low emphasis severity high emphasiscriminal history 173 b. Modified Just Deserts _ . Imprisonment 0 1 2 3 4 5 6 (low) HISTORY (high) moderate emphasisseverity low emph - iscriminal history d. Modified Incapacitation _ I Imprisonment _ 1 1 1 1 1 1,~1 0 1 2 3 4 5 6 (low) H ISTORY (high) low emphasis~severity moderate emphasiscriminal history FIGURE ~1 Dispositional models considered by the Minnesota Sentencing Guidelines Commission. SOURCE: Knapp (1980:13~.

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174 RESEARCH ON SENTENCING THE SEARCH FOR REFORM criteria, many of these questions have become salient and are receiving more attention from policy makers. THE PROCESSES OF DEVELOPING, IMPLEMENTING, AND ENFORCING NEW SENTENCING STANDARDS This section is concerned with political choices and planning questions that confront policy makers as they develop, implement, and enforce new sentencing standards and try to maximize compliance with them. DEVELOPMENT PROCESSES AND IMPLEMENTATION Sentencing is a complex process involving discretionary decisions by many people. Attempts to promulgate new sentencing standards that result in institutional changes have varied markedly in the processes by which reforms have been designed and the consideration given to po- litical repercussions of policy choices. Those jurisdictions that have made extensive efforts to obtain the understanding and support of all affected interest groups appear to have been more successful in gaining legislative approval when needed and fuller compliance when implemented than those that have not made such efforts. Martin's (Volume II) case study of the politics of sentencing reform in Minnesota and Pennsylvania indicates that: the complexities of developing sentencing guidelines involve not only the tech- nical issues related to the development of statistical models of past sentencing practices and projections of future prison populations, but also the political aspects of the policy-making process. In both states the legislature created a sentencing guidelines commission to promulgate guidelines that would go into effect unless rejected by the legislature. The differences in mandates, development processes, products, and outcomes illustrate the political problems of attempting to redistribute discretionary authority and change local sentencing prac- tices. In Minnesota the legislature determined that disparities in the pun- ishment of offenders convicted of felonies should be reduced through presumptive sentencing guidelines and the abolition of the parole board's discretionary releasing authority. The commission defined its task pri- marily as the development of public policy rather than as a technical activity. To gain support for its guidelines, the commission conducted a broad campaign to influence individuals and interest groups that would be affected by the guidelines and to involve them in the development process. The commission held a series of public meetings to publicize

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Structuring Sentencing Decisions 175 its activities and solicit policy recommendations; cultivated close rela- tions with the media; had its members establish and maintain good relations with their respective constituencies; and held open meetings and arranged final hearings on the draft guidelines at meetings of as- sociations of trial judges, county prosecutors, and public defenders prior to submission to the legislature. The final guidelines embodied com- promises negotiated within the commission to reflect the views of interest groups and the extensive public debate the commission's work fostered. Consequently, all of the concerned groups perceived themselves as hav- ing a stake in the guidelines and viewed the resulting standards as pref- erable to the status quo; hearing no criticism, the legislature allowed the guidelines to go into effect without change. In Pennsylvania the commission was created to design guidelines for both felony and misdemeanor offenses (a broader mandate than in Min- nesota) and without clear guidance concerning the prison population ramifications of its possible decisions. When the commission designed guidelines similar to those in Minnesota, they met with criticism from virtually every interest group. This resulted in part from the commis- sion's limited effort to build a constituency and from the likely effect of the proposed guidelines. To reduce disparity in a state characterized by wide variation in local sentencing patterns, the commission proposed to average sentences statewide and restrict judicial discretion. Judges were angered at this limitation of their authority, and suburban and rural judges, prosecutors, and legislators opposed the reduction of sen- tence severity in their jurisdictions. These groups joined forces to press for legislative adoption of a resolution directing the commission to revise its guidelines to widen ranges and increase sentence severity. The revised guidelines now in effect aroused little opposition because they maintain symbolic acceptance of statewide standards but are broad enough to accommodate traditional local sentencing practices. The voluntary sentencing guidelines that have been adopted in several jurisdictions had neither legislative authorization nor broad support from or involvement of the local judiciary. Nor were defense bars and pros- ecutors' offices involved in the development process or, in several in- stances, even informed about the guidelines after they had been pro- mulgated. In Denver, Rich et al. (1981:165) note: the criminal division decided en bane that the probation department . . . should distribute the guideline work sheets to the judges but not to the attorneys. Sentencing guidelines . . . were to be downplayed as much as possible. In Chicago (Rich et al., 1981 :180~: . .

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176 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM with a few exceptions, Chicago prosecutors and defense attorneys were unaware of the existence of sentencing guidelines. Given these limited efforts to obtain cooperation and support from lawyers, who jointly with judges influence the sentences that convicted persons receive, it should come as no surprise that Rich et al. (1981) found little evidence of commitment to or impact of voluntary sentencing guidelines in the cities they studied. Sparks et al. (1982) point to the likely importance of efforts to inform affected interested groups of the nature and intent of sentencing guidelines. In contrast to the Minnesota commission's efforts to build bridges to affected interests during the development process, in Massachusetts only minimal information about the guidelines was disseminated before the guidelines were introduced. Equally important as political bridge-building during the development stage is attention to the mechanical operation of a new sentencing system to facilitate compliance. Proposed sentencing and parole guidelines or determinate sentencing schemes are often complex. Applicable sen- tences can be identified only after numerical and statistical calculations have been made, based on the availability of necessary information. All such systems, but especially the more complex ones, are vulnerable to missing data and administrative errors, which can be reduced by careful planning, attention to detail, and the development of quality control procedures to verify adherence to the new policies. Officials cannot be expected to comply with a complex system without adequate familiarity with their responsibilities, information about its operation, and a dis- incentive for continuing "business as usual." Furthermore, efforts must be made to ensure that all the information necessary for calculating guideline sentences is routinely available. The effect of careful attention to implementation issues, including training the people who must implement new sentencing standards, developing mechanisms that facilitate implementation, and creating pro- cedures for monitoring compliance, is illustrated by the contrast in ap- proach and results in Minnesota and several jurisdictions with voluntary sentencing guidelines. To facilitate successful implementation of its guidelines, the Minnesota Sentencing Guidelines Commission under- took the following activities (among others): Prepared commentary, which was included in training materials on the guidelines, to clarify the commission's intent, the relevant statutory provisions, and the applicable rules of criminal procedure to aid court personnel. Worked with the corrections department to supplement the state- wide criminal records information system to ensure the availability of necessary data.

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Structuring Sentencing Decisions 177 In conjunction with the Minnesota Corrections Association, devised a new presentence investigation form that includes information neces- sary for the calculation of guideline sentences. Recommended several legislative changes necessary to facilitate transition to the new system. Conducted extensive training sessions for all judges, prosecutors, probation personnel, and defense attorneys to familiarize them with the guidelines. In addition, smooth implementation in Minnesota was facilitated by the following activities by affected participants: 1. Establishment of procedures for sentencing hearings by an ad hoc judicial committee. 2. Development of rules and standards for appellate review of sen- tences under the guidelines by the state supreme court. 3. Revision of prerelease and furlough policies consistent with the guidelines policy by the Department of Corrections. In contrast to Minnesota's approach, in Chicago and Newark training was limited and implementation mechanisms were largely ignored. The results were chronic problems with missing data and errors in computing guideline sentences, disputes about the accuracy of the facts on which computations were made, and disagreements over definitions of guide- line variables, e.g., what constitutes a weapon or injury (Rich et al., 1981~. And Sparks et al. (1982) observe that the Massachusetts guide- lines were not effectively presented even to the Massachusetts judiciary. Their presentation was very brief (2 hours), written materials were lim- ited to the guidelines themselves, and the description of the guidelines by one of the judges on the committee that produced them was inadequate. ENFORCEMENT The legal authority of sentencing standards and the existence, nature, and credibility of enforcement mechanisms also appear to affect the likelihood that the standards will be followed. Because there is little i~ Judge Douglas Amdahl, a member of the Minnesota Sentencing Guidelines Com- mission and chief judge of the Hennepin County (Minneapolis) District Court (and, subsequently, chief justice of the Minnesota supreme court), took the initiative by estab- lishing an ad hoc committee of judges and lawyers to propose procedures for sentence hearings. The committee's proposed rules were presented to a statewide meeting of trial court judges, modified in light of comments received at the meeting, and submitted to the chief judges in each judicial district for voluntary administrative adoption. The rules have been adopted in most judicial districts.

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178 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM research on these issues, this section simply suggests several distinctions that may usefully inform efforts to implement sentencing innovations. Legal Authority Rules are characterized by various degrees of legal authority, and de- cision makers can be expected to give greater weight to rules of greater authority. Three levels of legal authority can be distinguished in the sentencing initiatives implemented to date, and a fourth level may soon exist. Voluntary Voluntary standards such as voluntary sentencing guidelines typically possess only collegial authority, so their surface credibility may be critical. Part of the rationale of the early "descriptive" guidelines was that, by articulating the prevailing norms and embodying the implicit policies of a court, voluntary compliance would be achieved. One might hypothesize, however, that compliance with voluntary sentencing stan- dards will be low: (1) when the development process is not understood and respected by the judges who must use or ignore them; (2) when the standards take a form that is alien to judges, such as Massachusetts's weighted formula guidelines; and (3) when the ranges for sentencing are narrow and deviate from prevailing practices in a large percentage of cases. Since these guidelines by definition are voluntary, a primary aim of developers must be to persuade judges that compliance with the guidelines is a good idea and that compliance will achieve important public aims.~3 Presumptive Presumptive sentencing and parole guidelines and stat- utory sentencing standards have presumptive authority; they are to be observed in the ordinary case and are to be disregarded only under i2 The original Denver guidelines were intended to encompass 8~85 percent of the sentencing decisions in the construction and validation samples (Wilkins et al., 1978~. Consequently, assuming that individual judges did not drastically change their respective sentencing standards, one would expect 8~85 percent of the sentences to be consistent with the guidelines. Such consistency with guidelines, however, does not mean that judges were compliant; judges could sentence consistently with the guidelines even if unaware of them. ~ ~ ~ A i3 The developers of the original guidelines recognized the importance of judicial sup- port. They made strenuous efforts to induce the judges to perceive guidelines development as a collaborative process in which the judges make the critical policy decisions (Wilkins, 1981~.

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structuring Sentencing Decisions 179 special circumstances. Decision makers are generally required to give reasons for their decisions when they depart from the presumptive sen- tence. Thus under the federal parole guidelines, the Minnesota sen- tencing guidelines, and California's Uniform Determinate Sentencing Law, decision makers are required to provide written reasons for de- cisions contrary to the applicable presumptive standards. However, merely establishing presumptive standards does not necessarily lead to high compliance rates. Without effective appellate or other review, the rea- sons requirement may be meaningless. Or if the range of discretion permitted by the presumptive standards is large, substantial disparity may exist even though most sentences are in formal compliance with the applicable standards.~4 Mandatory Mandatory sentencing laws formally require that decision makers make particular dispositions. The mandatory sentence generally establishes a fixed minimum penalty for a broad class of cases that may vary widely in their individual circumstances. Such laws are vulnerable to circumvention because they are inflexible and require imposition of penalties that judges and prosecutors may believe to be inappropriate in individual cases. Their rigid and often severe penalties provide a powerful plea-bargaining weapon to a prosecutor who can promise to dismiss the crucial charge if a defendant pleads guilty to other charges. Their inflexibility can thus alter the balance of power relations in plea . . aargalnlng. Judicial Rules Judicial rules for sentencing, which do not yet exist in any jurisdiction, are an intermediate case. In several jurisdictions, no- tably Massachusetts and Michigan, statewide sentencing guideline proj- ects may eventually result in promulgation of court rules that give guide- lines presumptive foice. Trial judges are subject to numerous court rules on case processing and procedure; they are accustomed to adhering to such rules. Other things being equal, one might expect that sentencing guidelines that are promulgated as court rules are likely to possess greater authority than are voluntary guidelines and would be likely to result in greater levels of judicial compliance. i4 Under the original Illinois and Indiana presumptive sentencing laws, the statutory ranges applicable to persons convicted of forcible rape and to those who had two prior nonviolent felony convictions were ~50 and 6 60 years, respectively (Lagoy et al., 1978:399~. Under such presumptive standards, 100 percent compliance rates could easily exist along with gross unwarranted disparity.

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180 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM Review Mechanisms Legal authority by itself affords little basis for predictions about sub- stantive compliance with sentencing standards. Judges, parole exam- iners, and lawyers can ignore or willfully circumvent even presumptive and mandatory sentencing standards. Legal authority becomes mean- ingful in the presence of credible review mechanisms that pose a realistic threat that failure to comply will lead to appeal to and overrule by a higher authority. Appellate Sentence Review Obtaining judicial compliance with sen- tencing standards may present some difficulties. Appellate sentence re- view appears to provide reasonably searching scrutiny of sentencing decisions in other countries. In the United States, however, there is no tradition of rigorous appellate review of sentences. Indeterminate sen- tencing laws gave immense discretion to sentencing judges, and there were no obvious criteria that appellate judges could invoke in order to assess the appropriateness of particular sentences. Recent presumptive sentencing guidelines and statutes may provide meaningful standards for appellate review in the United States. The Minnesota supreme court, for example, is carefully reviewing appeals arising from departures from the Minnesota guidelines. As a result, case law is now developing in that state articulating certain basic principles governing the choice of appropriate sentences. Two principles in par- ticular have been affirmed in various Minnesota supreme court rulings: (1) that the sentence be based on the conviction offense and not on alleged but unproved offenses and (2) that the severity of the sentence should be proportional to the seriousness of the offense when compared with other offenses (see Minnesota Sentencing Guidelines Commision, 1982~. One should not, however, be sanguine about the prospects of appel- late sentence review as a policing mechanism. Its greatest drawback is that it is dependent on appeals by the parties. If no one appeals, appellate courts will have no opportunity to review sentences, and quite substantial departures from guidelines or from statutory presumptive or mandatory sentencing laws will be beyond the ken of the courts. Most convictions result from guilty pleas, often pursuant to plea negotiations, and neither party has an interest in appealing such negotiated sentences. If a pros- ecutor has agreed to accept a plea conditioned on the defendant's re- ceiving a below-guideline sentence, later appeal of the defendant's sen- tence is unlikely. Thus the only cases in which appeals are likely are

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Structuring Sentencing Decisions 181 those in which there was no agreement about a sentence and in which the judge failed to impose a sentence within the prescribed range, or there was an agreement the judge did not honor. Even if the number of appeals is small, however, appellate sentence review may have a powerful indirect effect on the application of pre- sumptive sentencing standards by providing an evolving frame of ref- erence within which plea bargaining occurs. Both prosecutors and de- fense counsel must negotiate in the shadow of the threat that if they are uncompromising, the case may be appealed. A possible result, therefore, is the gradual development of "going rates" for negotiated sentences, shaped and limited by the formal sentencing standards. Administrative Review The U.S. Parole Commission is in effect a sen- tence review agency for the federal district courts. Its parole guidelines are based on offense seriousness rankings and a parole prognosis (the "salient factor" score). The judge's sentence is not taken into account except when a minimum sentence is longer than the maximum guideline sentence or when a maximum sentence is shorter than the minimum guideline sentence: in these relatively rare cases (10 to 20 percent) the sentence prevails and the guidelines are overridden. Thus the Parole Commission in effect applies its own sentencing standards post hoc in reviewing sentence lengths to set release dates. Administrative sentence review of this sort has some advantages over appellate sentence review. Because parole review is not dependent on initiation by a party, it is less subject to collusive evasion of applicable sentencing standards. (However, it is not immune from collusive ma- nipulation: sentence bargaining with judicial acquiescence can ensure a sentence shorter than the earliest applicable parole guideline release date.) To avoid the effects of charge bargaining, the Parole Commission applies its guidelines on the basis of actual offense behavior, not the conviction offense, thereby adjusting for the effects of varying charging and bargaining patterns in different parts of the country. Moreover, because the Parole Commission has its own internal system of admin- istrative review, the quality of the reviewing decision can be assessed and revised when appropriate. Review mechanisms also are more likely to affect behavior in admin- istrative sentencing systems like parole than in judicially dominated systems. Administrative review procedures that have both formal and informal authority can be established. The formal authority resides in the review body's capacity to decide that the reasons provided for a noncompliant decision are unconvincing and to unilaterally change that

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182 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM decision. The informal authority results from the bureaucratic nature of parole organizations: as civil servants, examiners have career ad- vancement concerns that encourage compliance with agency policy. There has been some discussion in Congress of various ways to en- hance the Parole Commission's sentence review function. For example, it has been proposed that, in connection with a presumptive sentencing guideline system resembling Minnesota's, parole release be available only in those cases in which a judge has imposed a sentence longer than is provided in the applicable guideline. No comprehensive system of administrative review of sentences has, to the panel's knowledge, been established. California has established a partial administrative review system, but it does not yet appear to have had significant effect. California Penal Code Section 1170(f) ini- tially directed the Board of Prison Terms: not later than one year after the commencement of the term of imprisonment tto] review the sentence [in all cases] and . . . by motion recommend that the court recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced if the board determines that the sentence is disparate [emphasis added]. Whether this injunction will be effective in the future remains to be seen. Informal Review Mechanisms Several informal processes can be used for review of compliance with sentencing standards. Efforts can be made to attract media attention to sentencing. On numerous occasions citizens groups have organized court observation systems in order to monitor judicial sentencing behavior. The Minnesota commission has established an internal monitoring system. Sentencing information forms must be completed by the trial court for every case and must include reasons for departures in cases where the sentence departs from the guidelines. One copy of the sentencing report form is sent by the court to the commission for review. The commission has established a review and follow-up procedure by its staff that involves initially calling the pro- bation officer to obtain missing information or correct errors in sentence calculation prior to sentencing; contacting the judge if written reasons for a departure are missing following sentencing; and, if these are not forthcoming, contacting the chief judge in the judicial district. This monitoring system provides the sentencing commission with records on compliance and departures and serves as a constant reminder to judges that sentences are reviewed by the commission in every case, which may encourage judges to follow the guidelines.

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Structuring Sentencing Decisions Such monitoring devices, if well designed, may also be essential in the process of amending sentencing standards. They can provide feed- back on the effects of the new standards on the system as a whole and on the congruence between actual and desired sentencing practices. This information can serve as the basis for modifying guidelines to overcome unanticipated problems and to accommodate changes in community standards and values affecting sentencing. 183