Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter.
Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.
OCR for page 184
4
Sentencing Reforms and
Their Effects
Recent changes in sentencing laws and practices have variously affected
judges, prosecutors, parole boards, and other officials in the criminal
justice system. Many sentencing reforms have been directed only at one
set of officials and have not addressed or attempted to anticipate shifts
of discretion to other officials. For example, the California legislature
eliminated parole release for most prisoners and established detailed
statutory criteria for prison sentences but did nothing to control the
discretion of prosecutors whose influence on sentencing through charg-
ing and plea negotiation increased. Because the punishment process is
complex, it is important if the effects of changes are to be recognized
and understood—to look not only at processes that are formally and
immediately affected by a change but also at earlier and later processes.
Thus, an adequate assessment of the impact of sentence reforms requires
that consideration be given to its implications for court procedures and
plea-bargaining practices as well as to its apparent impact on sentences
received by offenders.
This chapter summarizes the findings of the literature on evaluations
of the impact of sentencing reforms. A detailed review of that literature
is contained in Cohen and Tonry (Volume II). We are primarily con-
cerned with the effectiveness of sentencing reforms as a means of re-
ducing disparities, altering sentence severity, and making decision mak-
ing systematic. Consequently, we focus on how innovations affect what
happens to defendants and how participants in the system have altered
their behaviors in reaction to innovations. The innovations we consid-
184
OCR for page 185
Sentencing Reforms and Their Effects
185
ered were directed at the actions and decisions of prosecutors, judges,
and parole authorities. More specifically, we review evaluations of ef-
forts to abolish plea bargaining in three jurisdictions; mandatory min-
imum sentencing laws in Michigan, Massachusetts, and New York; Cal-
ifornia's Uniform Determinate Sentencing Law; presumptive and voluntary
sentencing guidelines; and parole guidelines in four jurisdictions.
This chapter is divided into four sections. The first section summarizes
research findings on the extent of formal compliance with several sen-
tencing innovations. The second section examines evidence of efforts
by lawyers and judges to dispose of cases in ways inconsistent with
apparently applicable rules and laws. The third section reviews evidence
concerning the impact of sentencing innovations on sentence outcomes.
Section four describes the major methodological shortcomings that char-
acterize the evaluations. (The organization of this chapter requires that
we discuss particular studies and innovations in more than one section.
In order to minimize repetition, studies are described relatively fully
when first mentioned and are thereafter described by cross-reference.)
The corpus of sentencing reform impact evaluations is small, and most
published reports suffer from serious methodological shortcomings. There
has not yet been a sufficient number of well-executed evaluations to
permit the panel to offer detailed conclusions about the effects of diverse
sentencing innovations. However, the following four broad generali-
zations emerged from many of the evaluations considered:
1. Formal compliance with the requirements of innovations has been
widespread: assistant prosecutors have adhered to plea-bargaining bans
and restrictions; parole board examiners have tended to set release dates
that are consistent with applicable parole guidelines provisions; judges
have tended to adhere to statutory sentencing standards, especially man-
datory minimum sentence laws. Outside the parole context, however,
compliance has often been formal rather than substantive.
2. Judges and lawyers have often substantially modified case-pro-
cessing procedures in order to achieve dispositions of cases that were
different from those specified in applicable rules or laws. Partial plea-
bargaining bans and mandatory minimum sentencing laws appear es-
pecially vulnerable to circumvention.
3. Parole and sentencing guidelines systems that have legal or ad-
ministrative force and are subject to credible enforcement mechanisms
have operated to reduce the extent of sentencing disparities.
4. Plea-bargaining bans and mandatory and determinate sentencing
laws have produced modest changes in sentencing outcomes, particularly
some increases in prison use. Typically, increases in severity have been
OCR for page 186
186 RESEARCH ON SENTENCING THE SEARCH FOR REFORM
experienced by marginal offenders, who previously might or might not
have received prison sentences.
COMPLIANCE WITH SENTENCING REFORMS
Whether officials comply with the formal requirements of sentencing
innovations appears to depend on the legal authority of an innovation
and whether it is subject to credible enforcement mechanisms. Plea-
bargaining bans, mandatory minimum sentencing laws, Minnesota's pre-
sumptive sentencing guidelines, California's determinate sentencing law,
and parole guidelines commonly result in substantial formal compliance.
Voluntary sentencing guidelines have not been shown to achieve high
rates of formal compliance.
Aso~T~oN OF PLEA BARGAINING
There have been several efforts to "abolish" plea bargaining in full or
in part. Some of these efforts have been evaluated: the Alaskan attorney
general's 1975 ban on plea bargaining in that state (Rubinstein et al.,
1980~; the actions of a county prosecutor in Michigan to abolish charge
bargaining in drug trafficking cases (Church, 1976~; the Wayne County
(Detroit) prosecutor's prohibition of bargaining in firearms cases subject
to a mandatory 2-year sentence (Heumann and Loftin, 19794; and the
restrictions placed on charge reductions in New York's mandatory sen-
tencing laws for drug offenses (Joint Committee on New York Drug
Law Evaluation, 1978~.
These evaluations found that plea bargaining can be substantially
controlled when the chief prosecutor wishes to do so, establishes internal
review and management systems that effectively monitor assistant pros-
ecutors' behavior, and wins the support of assistant prosecutors. When
the ban is only partial (only charge bargaining is banned or only sen-
tencing bargaining), judges and lawyers tend to shift to alternative bar-
. .
gaining systems.
Alaska is the only jurisdiction to attempt the statewide elimination
of plea bargaining in all its variant forms. On July 3, 1975, effective
August IS, 1975, the attorney general of Alaska ordered state prose-
cutors to desist from plea bargaining and sentence recommendations.
Charge dismissals or reductions as inducements to guilty pleas were later
forbidden, but unilateral charge dismissals for good-faith professional
reasons were permitted. The Alaska Judicial Council evaluated the im-
pact of the abolition in Anchorage, Fairbanks, and Juneau (Rubinstein
et al., 1980~. Case record data were collected on case dispositions in
OCR for page 187
Sentencing Reforms and Their Effects
187
the 12-month periods before and after the ban, and interviews were
conducted covering more extended periods. The credibility of the study's
statistical analyses is doubtful, as are the conclusions deriving from the
statistical data, but the rich interview data provide a firmer basis for
most of the study's major conclusions. The study concluded that "plea
bargaining as an institution was clearly curtailed" (Rubinstein et al.,
1980:314. Sentence bargaining and prosecutorial sentence recommen-
dations declined abruptly from 43.5 to 13.1 percent of all cases in the
three jurisdictions. The interview data from judges, prosecutors, and
defense attorneys supported the statistical indications that sentence bar-
gaining had essentially ceased. The study concluded that charge bar-
gaining also had substantially disappeared.
An effort to eliminate prevailing charge-bargaining practices was in-
itiated by the newly elected prosecutor in "Hampton" County, Michi-
gan,~ in January 1973. He instituted a strict policy forbidding bargained
charge reductions in drug sale cases and, at the same time, substantially
tightened the standards under which drug prosecutions were authorized.
Church (1976) collected information on drug sale warrants and dispo-
sitions for the 12-month periods before and after January 1, 1973. These
data were supplemented by data from interviews with judges, defense
counsel, prosecutors, and the court administrator. Church concluded
that guilty pleas to reduced charges fell from 81 percent of cases before
the ban to 7.1 percent afterward but that charge bargaining was quickly
replaced by sentence bargaining involving judges and defense lawyers.
The Michigan Felony Firearms Statute created a new offense of pos-
sessing a firearm while engaging in a felony and mandated a 2-year
prison sentence, which could not be suspended or shortened by release
on parole, to be served consecutively to the sentence imposed for the
predicate (underlying) felony. Since the gun possession charge had to
be separately charged, its applicability depended on the decisions of
Michigan prosecutors. The law took effect on January 1, 1977, and was
supplemented by the Wayne County prosecutor's ban on charge dis-
missals of firearms charges pursuant to plea bargains. Since the charge
determined the mandatory incremental sentence, prohibition of charge
bargaining also accomplished a prohibition on sentence bargaining. Heu-
mann and Loftin collected data from court records on cases disposed in
the 6-month periods before and after the ban took effect and conducted
interviews with lawyers and judges. They found that the prosecutor was
~ 'Hampton" County is a pseudonym used by the researcher to conceal the identity of
the research site.
OCR for page 188
188 RESEARCH ON SENTENCING THE SEARCH FOR REFORM
generally successful in obtaining formal compliance with the ban (Heu-
mann and Loftin, 1979:402~.
MANDATORY SENTENCING LAWS
Numerous mandatory sentencing laws have been passed in recent years.
Evaluations of three of the laws have been published (Beha, 1977;
Heumann and Loftin, 1979; and Joint Committee on New York Drug
Law Evaluation, 1978~. All three evaluations were largely concerned
with the deterrent effects of the laws studied: case processing and dis-
positions received subsidiary attention, and, accordingly, the data are
sometimes unsatisfying and must be interpreted cautiously.
There appear to have been few blatant refusals to impose the pre-
scribed sentences on defendants convicted under the mandatory mini-
mum sentencing laws. However, in each jurisdiction studied the per-
centage of prosecutions resulting in convictions declined, which suggests
that officials attempted to shelter some defendants from the law's effects.
In the case of the Michigan felony gun law, for example, the proportion
of offenders incarcerated after conviction in "other assault" cases (a
category of assault cases of moderate severity) rose from 57 percent to
83 percent; however, the conviction rate declined by 20 percent (Heu-
man and Loftin, 1979: Table 3~.
Under New York's "Rockefeller" drug laws, which went into effect
on September 1, 1973, severe mandatory prison sentences were pre-
scribed for narcotics offenses at all levels, and selective statutory limits
were placed on plea bargaining. The Joint Committee on New York
Drug Law Evaluation (1978) found that the risk of incarceration after
conviction increased substantially, from 34 percent in 1972 to 55 percent
in 1976. However, the likelihood that a person arrested for a drug offense
would be incarcerated remained the same because indictment and con-
viction rates declined. Sentence lengths did increase substantially: the
percentage of sentenced drug felons receiving minimum prison terms
longer than 3 years increased from 3 to 22 percent.
In Massachusetts the Bartley-Fox Amendment, effective April 1, 1975,
required imposition of a 1-year mandatory minimum prison sentence,
without suspension, furlough, or parole, for anyone convicted of car-
rying an unlicensed firearm. Beha (1977) collected data on all prose-
cutions for firearms crimes in the 6 months after the law took effect and
for the corresponding 6 months of the preceding year. Only indirect
evidence is available regarding compliance by lower court judges in
imposing the 1-year minimum prison term for carrying a gun. The per-
centage of cases proceeding to superior court either on an appeal, as a
OCR for page 189
Sentencing Reforms and Their Effects
189
trial de novo, or bound over directly from the lower court, increased
from less than one-fifth of cases to more than one-half after implemen-
tation of the new law, suggesting that lower court judges imposed more
severe sentences in compliance with the law. However, these increases
in severity were offset by sharp reductions in the number of cases avail-
able for sentencing because dismissals and acquittals increased.
DETERMINATE SENTENCING IN CALIFORNIA
The original California Determinate Sentencing Law (DSL) took effect
July 1, 1977, and was amended twice in 1978 to increase the severity of
penalties for some offenses.2 The DSL prescribes three base terms for
each crime (e.g., for robbery the terms are 2, 3, or 5 years). The middle
term is the presumptive term to be imposed except in cases in which
the judge concludes that mitigating or aggravating circumstances warrant
the use of the lower or upper base terms.
Seven major research projects have examined the postimplementation
impact of determinate sentencing in California. As summarized in Table
=1, these studies vary considerably in questions addressed, in the ju-
risdiction levels and stages in case processing studied, and in the relative
strengths or weaknesses of their evaluation designs. Together they pro-
vide a comprehensive picture of the impact of determinate sentencing
in California.
The available evidence indicates a high degree of formal compliance
with the requirements of DSL in California. Available evidence for fiscal
1977-1978 and for 1979 indicates that most offenders sentenced to prison
in those years received the presumptive middle base term (61 percent
in 1977-1978 and 54 percent in 19794. The use of the lower and upper
base terms for mitigating and aggravating circumstances varied among
offenses. Upper base terms were more likely to be imposed than lower
base terms for crimes against persons, and lower base terms were more
common than upper base terms for property and drug offenses. In more
recent years there has been a marked increase in the proportion of
convicted persons who receive the lower base term; possible explana-
tions for this trend are discussed in Cohen and Tonry (Volume II).
The law also prescribes additions to prison sentences ("enhance-
ments") when particular aggravating circumstances, including weanon
___=, - --I
2 The crime types directly affected by the amendments were first-degree burglary,
robbery, voluntary manslaughter, rape, crimes against children, and oral copulation. Both
the middle and upper terms were increased for all these offenses except robbery, where
only the upper term was increased.
OCR for page 190
190
-
~ ax
~ _'
Ct
._
-
._
E
Ct
._
._
Ct
. .
._
An
a
I
o
.
Ct
-
Ct
Lid
Ct
E
i_
._
Cal
o
._
Ct
._
Ct
˘
U'
.
~ Cal U: ~ Cal Cal
I\
V ;^ ;^ ;^ ;^
C _ ~
_'
·4-
o ~ ~ ~ ~ ~ U)
V >~ ;~~ ~~ I'm ~
o ~
~ ·:>
~ Cad ~ ;^ ;^
C=t ~
= ~ ·3
To ~
~ oo ._
3~ us ~ :^
~ _ ;^
X~ VZ Z Z
==
c~ ~ u) ;^ ;^ ;^
A A ~ ~ ~ O ~ ~ U ~ ~ ~ ~ ~
1)
D
Ct
._
;>
O
a;
c3'
o~
._
U:
C~
o
CD
-
._
C5
C)
5
o
;^
C
o~
C
._
·3
o
D
e~
._
C~
:>
O
cn
Ct
3
o
_
Ct
._
C_
"s:
Ct
C)
C:
OCR for page 191
Sentencing Reforms and Their Effects
191
use, great bodily injury to the victim, large property loss, or prior prison
terms, are charged and proved. Statewide, among persons committed
to the Department of Corrections, the use of enhancements tends to be
limited to weapon or firearm use, especially in robbery cases, for which
the enhancement was charged in 90 percent of eligible cases and proved
in 74 percent of charged cases. This contrasts sharply with enhancements
for victim injury and prior prison, which were charged and proved in
less than 25 percent of eligible cases among persons admitted to prison.
The statutes impose no obligation on prosecutors to charge or prove
facts that would support an enhancement. Charging patterns vary from
county to county in California, and thus the imposition of enhancements
also varies (see Casper et al., 1982; Utz, 19814.
Contrary to the wide discretion exhibited by prosecutors in charging
and proving enhancements, once enhancements were proved judges
routinely added the prescribed additional years to the base sentence.
Thus, with respect to the enhancements, there was considerable com-
pliance by judges with the formal requirements of DSL (see Cohen and
Tonry, Volume II:Table 7-17~.
SENTENCING GUIDELINES
As we discussed in Chapter 3, sentencing guidelines have taken many
forms and approaches. A distinction is sometimes drawn between "de-
scriptive" guidelines, which are based on statistical characterizations of
past practice, and "prescriptive" guidelines, which are in the first in-
stance the result of policy decisions about appropriate punishments.
They are also distinguished by their respective legal authority. "Vol-
untary" guidelines do not have legal authority: judges are not required
or authoritatively encouraged to comply with voluntary guidelines, and
defendants have no recourse against judges who fail to do so. "Pre-
sumptive" sentencing guidelines, like Minnesota's, do have legal au-
thority: judges are directed to impose sentences prescribed by the guide-
lines unless "substantial and compelling" circumstances are present that
justify departure from them, and defendants and prosecutors may seek
review of the appropriateness of a departure.
Several examinations of the construction and effects of voluntary/
descriptive guidelines have been conducted: Rich et al. (1981) assessed
the construction and subsequent impact of judicially adopted guidelines
in Denver and Philadelphia; Sparks et al. (1982) reviewed the construc-
tion of the Massachusetts guidelines in depth and those of other juris-
dictions in less detail; Cohen and Helland (1982) examined guidelines
in Newark.
OCR for page 192
192 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
Formal compliance with voluntary/descriptive guidelines has appar-
ently been limited in the jurisdictions studied. It is important to note
that in this context we distinguish between "compliance" and "consis-
tency." A sentence is compliant with guidelines when a judge has con-
sciously considered the sentences indicated by the applicable guidelines
and elected to impose a sentence from within the guideline range. A
sentence may be consistent with guidelines even if a judge was unaware
of their existence. Thus sentencing in a court could be consistent with
guidelines but not compliant. Indeed, the original Denver guidelines
were drafted with the intent that 8~85 percent of the cases in the
construction sample would fall within ("be consistent with") the guide-
lines.
Rich et al. (1981) found that in Denver judicial decisions to incarcerate
were consistent with guidelines in about 70 percent of cases, both before
and after guideline implementation. Postimplementation consistency in
terms of sentence length was lower, about 40 percent of those sentenced
to prison. In Philadelphia and Denver, there was consistency on both
the in/out and length decisions in only about one-half of all cases. Similar
results were found in Newark (Cohen and Helland, 1982~. Lawyers and
judges interviewed in Philadelphia and Denver indicated that few judges
made significant efforts to comply with the guidelines. Thus there was
little evidence of formal compliance and evidence of even less consis-
tency than had been expected given the avowedly descriptive basis of
the guidelines.
As of early 1982, Minnesota was the only jurisdiction that had im-
plemented sentencing guidelines that are both presumptive and pre-
scriptive. The early indication from internal evaluations by the guidelines
TABLE ~2 Percentage of Cases Sentenced
Consistently With Minnesota Sentencing Guidelines
Presumptive
Outs77
Who Were
Sentenced
"Out77
Presumptive
``Ins77
Who Were
Sentenced "Ink
1978 baseline cases 86 44
198~1981 sentences imposed 96 77
NOTE: The figures in this table were estimated from data provided
by Knapp (1982). They are not precise because some cases that appear
among the presumptive "outs77 are actually treated as presumptive
"ins' under separate statutory provisions for mandatory sentencing.
OCR for page 193
Sentencing Reforms and Their Effects
TABLE ~3 Percentage of Cases Sentenced Consistently With
Presumptive Sentences Within Selected Cells of Minnesota
Sentencing Guidelines
193
Percentage Actually Sentenced "Out"
1978 198~1981
Presumptive "Out" Cells Baseline Cases Sentences Imposed
Offense 5, history 1 60.7 95.0
Offense 5, history 2 21.8 74.2
Offense 3, history 3 45.4 80.3
Percentage Actually Sentenced "In"
1978 198~1981
Presumptive "In" Cells Baseline Cases Sentences Imposed
Offense 7, history 0 39.1 71.8
Offense 8, history 0 41.9 85.4
Offense 8, history 1 29.1 75.0
SOURCE: Knapp (19824.
commission is that there is substantial formal compliance by judges in
both decisions to incarcerate and decisions about sentence length. As
shown in Table 3-1, the Minnesota guidelines are expressed in a grid
format; cases falling in cells above the in/out line should receive "out"
sentences (i.e., stayed state prison terms), and cases falling in cells below
the line should receive state prison sentences.
Table ~2 shows the percentages of cases in the commission's 1978
baseline sample that would have been sentenced consistently with the
presumptive "in" and "out" sentences had the guidelines been in effect
in 1978 and the percentages of cases sentenced consistently with the
presumptive sentences under the guidelines in 198(}1981. For both "in"
and "out" decisions there were marked shifts in sentences consistent
with the guidelines. As Table ~3 reveals, these shifts in sentencing are
often larger when individual cells in the guideline grid are examined
than is apparent overall.
The relatively low preguideline consistency with the guidelines illus-
trates the extent to which the guidelines departed from previous sen-
tencing practices in Minnesota. Since this is one of the few sentencing
reforms that has resulted in substantial changes in the behavior of a
state court system and its participants at least in the preliminary find-
ings the panel encourages a longer-term and more extensive exami-
nation of the nature and extent of compliance with the Minnesota sen-
tencing guidelines.
OCR for page 194
194 RESEARCH ON SENTENCING THE SEARCH FOR REFORM
PAROLE REFORMS
Parole Abolition
On May 1, 1976, Maine became the first state in modern times to abolish
parole release and establish a determinate sentencing system in which
the duration of prison terms could be calculated at the time of sen-
tencing. Maine is not an ideal jurisdiction in which to assess the impact
of parole abolition. The small numbers of criminal prosecutions and
convictions in that state make meaningful statistical analyses of changes
in sentences by offense type virtually impossible. However, two eval-
uations of Maine's innovations have been completed. Kramer et al.
(1978) assessed the impact of the change during its first 12 months;
Anspach's (1981) report provides a content analysis of changes in Maine's
substantive criminal law without data on the impact of the parole ab-
olition.
Both of the evaluations are fundamentally flawed, and neither pro-
vides credible findings on the impact of Maine's abolition of parole.
Plausible arguments have been made that parole release operates in
important respects as a monitoring system for sentencing- evening out
disparities in the lengths of prison terms and providing a device to relieve
prison crowding; the Maine evaluations have not provided insights into
these or other questions. It is to be hoped that other evaluations will
be undertaken that are designed to test hypotheses about the compar-
ative advantages of judicial and parole systems for determining the
lengths of prison sentences.
Parole Guidelines
There have been three major evaluations of the operations of parole
guidelines systems. Arthur D. Little, Inc., and Goldfarb, Singer, and
Austern (1981, hereafter cited as ADL, 1981) examined the U.S. Parole
Commission's parole guidelines system and state systems in Washington,
Oregon, and Minnesota. Mueller and Sparks (1982) studied the oper-
ation of the Oregon parole guidelines. In 1982 the General Accounting
Office released a study on the operation of the federal parole guidelines
system. Four primary questions have been studied: the extent to which
parole guidelines are correctly applied in prison release decisions; the
extent to which parole release decisions are consistent with apparently
applicable guidelines; the extent to which parole guidelines serve to
reduce disparities in punishment compared with parole release without
guidelines and compared with the distribution of sentences imposed by
OCR for page 214
214 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
TABLE i7 Changes in Length of Prison Terms by
Sex Based on Statewide Data
Mean Prison
Terms,
in Months
Offense
Time Served
by Women as
a Percent of
Lime Served
Men Women by Men
All offenses
Pre-DSL: 1972-1976 40.0 23.7 59
DSL adjusted:a 1977-1978 28.7 24.8 86
2nd degree burglary
Pre-DSL: 1972-1976 30.0 19.5 65
DSL adjusted:a 1977-1978 18.4 16.0 87
Robbery
Pre-DSL: 1972-1976 44.8 26.7 60
DSL adjusted:a 1977-1978 35.7 29.6 83
Assault with deadly weapon
Pre-DSL: 1972-1976 40.9 22.3 55
DSL adjusted:a 1977-1978 32.9 34.7 105
a Adjusted to reflect maximum allowable good-time credits.
SOURCE: Derived from data in Brewer et al. (1980:Tables 7 and 8~.
particularly when discounted DSL terms are used. For men, for example,
the comparisons of DSL terms actually imposed with time served before
DSL in Brewer et al. (l980:Table 7) indicate that the standard deviation
decreased from 20 to 50 percent for five of the seven crime types with
increases in means (Brewer et al., 1980~. However, Casper et al.
(1982:Table 17) note that the range of DSL sentences actually imposed
in robbery and burglary cases is quite broad, due principally to the use
of enhancements and consecutive terms on multiple charges in sentences
for offenders convicted of the same crime type.
In sum, despite the magnitude of the change in sentencing procedures
under DSL, there is no compelling evidence of substantial changes in
sentence outcomes attributable to DSL. While prison use increased and
time served decreased after the new sentencing law, both changes rep-
resented continuations of trends that began several years before deter-
minate sentencing was implemented.
SENTENCING GUIDELINES
When the impact of various voluntary sentencing guidelines has been
examined, there is little or no evidence of changes in sentencing prac-
OCR for page 215
Sentencing Reforms and Their Effects
215
tices. In particular, the relative use of different sanctions and the length
of prison terms imposed have remained unchanged, and there has been
little effect on the extent of variation in sentences imposed on like cases,
as classified by the guidelines. This absence of substantial differences
in sentences can be attributed largely to the nature of the guidelines
themselves.
In addition to being voluntary in their implementation, the guidelines
were largely "descriptive," articulating past sentencing practices without
intending to substantially alter them. As a result, very little change from
past practices was expected from even strict compliance with the guide-
lines. Instead, the guidelines were intended to provide judges with a
description of prevailing practices in their jurisdiction, to be used as a
standard in their own sentencing decisions and to serve as a basis for
possible reconsideration of those practices in an iterative process of
description, evaluation, and modification of the guidelines.
The Minnesota guidelines represent a complete departure from this
model of voluntary/descriptive guidelines. The Minnesota guidelines are
presumptive, having the force of a legislative requirement, and the pre-
scribed sentences represent a deliberate departure from past sentencing
practices. On the basis of early in-house data, Minnesota's presumptive
guidelines appear to have significantly altered sentencing patterns in
that state.
The Minnesota guidelines included an explicit policy choice to increase
the use of prison for serious offenses against persons by offenders with
limited criminal histories while decreasing the use of prison for property
offenders, regardless of their prior criminal history. Consistent with the
guidelines, the proportion of total commitments to state prisons rep-
resented by individuals convicted of person offenses increased from 32
to 46 percent. There was no increase in the proportion of convictions
for person offenses; cases with presumptive prison sentences represented
about 13 percent of convictions before (1978) and after (198~1981)
guidelines implementation. Table ~8 provides further evidence of the
effectiveness of the guidelines in shifting prison sentences from property
to person offenses. The proportion of low-history offenders convicted
of serious offenses who were sentenced to prison increased sharply,
from 45 to 77 percent after implementation of the guidelines, while the
proportion of high-history offenders convicted of the least serious fel-
onies who were sentenced to prison decreased from 53 to 16 percent
(Knapp, 1982; Minnesota Sentencing Guidelines Commission, 1982~.
Another explicit choice articulated in the Minnesota guidelines was
in the direction of uniform sentences, in particular that sentences should
be neutral with respect to the race, sex, and socioeconomic status of
OCR for page 216
216 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
the defendant. One indicator of the success of the guidelines in achieving
more uniform sentencing is the rate of departure of sentences from the
guidelines for different demographic groups. The data in Table =9
indicate that variations in sentences remained after implementation of
the guidelines. The total in/out departure rate was reduced from 19.4
to 6.2 percent after guidelines were implemented, and similar reductions
in departures were found for all demographic groups. Nevertheless,
minority, male, and unemployed offenders continued to experience higher
rates of departures from the presumptive sentences, and these depar-
tures tended to be in the direction of more severe sentences: presumptive
'~outs" who were in fact sentenced to the state prison.
The mix of cases differed sharply among different demographic groups:
cases of convicted whites, females, and employed offenders were more
likely to involve low-seriousness offenses and low criminal history scores.
Departure rates were also generally lower for these less serious cases;
the typical reasons for departures related to the extent of injury to
victims- conditions that do not apply in low-seriousness property of-
fenses. These differences in the distribution of cases could affect com-
parisons of departure rates across demographic groups. As a minimum
control for the potential influence of differences in the distribution of
cases, departure rates were estimated separately among presumptive
"ins" and presumptive "outs." As indicated in Table ~10, the differ-
ences across race and sex remain after minimally controlling for case
distribution and the differences between employed and unemployed
offenders are increased.
TABLE ~8 Shift in Prison Sentences From
Property to Persons Offenses Under Minnesota
Sentencing Guidelines
Percent of Cases Sentenced
to State Prisons
Cases Sentenced
1978 Under
Offense Criminal Baseline Guidelines, 198
Severity Level History Score Cases 1981
VII, VIII, IX 0,1 45 77
(high) (low)
I, II 3, 4, 5 53 16
(low) (high)
SOURCE: Data from Minnesota Sentencing Guidelines Commission
(1982). Also available from Knapp (1982).
OCR for page 217
Sentencing Reforms and Their Effects
TABLE ~9 In/Out Departure Rates for Cases Sentenced Under
Minnesota Sentencing Guidelines in 198~1981
217
Percentage of Percentage of
Severe Departures Lenient Departures
~ Among Total Among Total
Percentage of (Presumptive (Presumptive
Demographic Departures, "Outs" Who Were "Ins" Who Were
Group All Cases Sentenced "In") Sentenced "Out")
Total 6.2 3.1 3.1
Race
Whites 5.2 2.6 2.7
Blacks 9.6 4.9 4.7
Native Americans 12.4 7.5 4.9
Sex
Males 6.5 Not reported Not reported
Females 3.1 Not reported Not reported
Employment
Employed 3.4 0.2 3.2
Unemployed 8.9 5.0 3.9
SOURCE: Data from Minnesota Sentencing Guidelines Commission (1982~.
The actual departure rates were compared with an independent as-
sessment of justified departures by the guidelines commission, and sim-
ilar differences by race and sex were found. Based on this analysis, it
appears that differences in case seriousness account for a large part of
the differences found in departure rates by sex and raced The rate of
severe departures for blacks relative to whites is, however, somewhat
higher than expected and remains a matter of concern.
PAROLE GUIDELINES
Departure Rates
As we noted earlier, evaluations of parole guidelines have noted de-
parture rates that have varied from under 10 percent (Minnesota in
1979) to 68 percent (Washington in 1976) (ADL, 1981c,d). Unfortu-
nately, departure rates alone are not informative their salience de-
pends on several factors, including the specificity of policy guidance,
the width of guidelines ranges, whether the applicable guideline has
6 No independent assessment is available for the unemployment variable.
OCR for page 218
218 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
TABLE ~10 Departure Rates Among Presumptive "Ins" and
Presumptive "Outs" (Under Minnesota Sentencing Guidelines)
Percentage Sentenced Percentage Sentenced
Demographic "In" Among Presumptive "Out" Among Presumptive
Group "Outs"a "Ins"
Race
Whites 3.1 15.4
Blacks 6.8 10.7
Native Americans 9.5 17.2
Sex
Male 4.0 14.2
Female 1.6 25.9
Employmentb
Employed 0.2 46.4
Unemployed 6.3 18.8
a Severity level VI offenses are excluded from the presumptive "outs" because some of
these offenses are in fact presumptive "ins" under the terms of separate mandatory
sentencing laws.
b The departure rates by employment status are estimated from data on departure rates
and the distribution of cases for different categories of offenders available from the
Minnesota Sentencing Guidelines Commission. The figures estimated here are approxi-
mations based on estimates of both the number of departures and the total number of
cases in each category. They include severity level VI offenses among presumptive "outs."
SOURCE: Data from Minnesota Sentencing Guidelines Commission (1982~.
been correctly identified, and clarity about the character of a departure.
To elaborate this last point, we repeat our earlier distinction between
consistency and compliance: a decision may be inconsistent with guide-
lines but compliant if the case is one which the developers intended the
offender to receive an aggravated or mitigated sentence outside a normal
range; conversely, a decision may be consistent but noncompliant if the
case is one that should have been handled by a departure but was not.
Consequently, data on departure rates are necessarily ambiguous unless
full and detailed contextual information is available.
Changes in Disparity and Severity
All of the studies we reviewed that assessed the impact of parole guide-
lines on disparity found evidence that the guidelines reduced sentencing
disparities. For Oregon, Mueller and Sparks (1982:2~21, 36) concluded
that, controlling for offense seriousness and using the parole board's
OCR for page 219
Sentencing Reforms and Their Effects
219
offender scoring system, the variability of prison terms in that state was
less in 1976 and 1978, under guidelines, than it had been in 1974, before
guidelines were implemented. The Arthur D. Little study of the impact
of the U.S. parole guidelines on disparity compared actual times served
by prisoners convicted of robbery and selected property offenses who
were released in 1970 (preguidelines) and- 1979 (postguidelines) and
found "measurably less dispersion in the distribution of actual time
served" for the 1979 releases that could not be explained by reduced
variability in sentences imposed by judges (ADL, 1981e:3~. Finally, for
Minnesota, Arthur D. Little found that for persons convicted of aggra-
vated robbery, "offenders released in 1979 under the guidelines system
tended to serve more nearly the same amount of time . . . when stratified
into subgroups based upon prior history" than did aggravated robbery
prisoners who were released in 1974, before guidelines (ADL, 1981d:63~.
Thus it appears that well-managed parole guidelines systems can operate
to reduce sentence disparity among persons imprisoned.
Only one study has addressed the question of whether the overall
severity of prison sentences served increased with the implementation
of parole guidelines. Mueller and Sparks (1982:20) concluded that in
Oregon between 1974, before guidelines were implemented, and 1978,
when guidelines had been in effect for several years, there was "an
overall increase in severity of terms." They cautioned, however, as we
do in regard to the California evaluations, that one cannot conclude that
"the guidelines caused the observed changes" (Mueller and Sparks,
1982: 1).
CONCLUSIONS
SUBSTANTIVE FINDINGS
Most of the studies we reviewed reported that formal compliance with
the procedural requirements of reforms has been achieved. Prosecutors
have refrained from bargaining, judges have imposed the mandated
sentences on convicted offenders, and parole boards have released pris-
oners according to guideline requirements. But this behavioral change
often represented compliance more in form than substance. When par-
ticipants considered the new rules inappropriate, they routinely at-
tempted to circumvent the procedural changes by filtering out those
cases they believed should not be subject to those rules. With respect
to sentence outcomes, the impact of the sentencing reforms has been
modest. There has been some increase in prison use, some increase in
OCR for page 220
220 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
sentence severity for marginal cases, and some decrease in disparity.
These changes have varied by type of reform and jurisdiction.
Formal Compliance
The mechanisms for achieving compliance with new sentencing rules
differ. Plea-bargaining and parole reforms have been successfully im-
plemented through administrative orders. The three evaluations of plea-
bargaining bans indicate that when prosecutors sought to abolish plea
bargaining in general or in a particular form and were serious about it
they were able to do so. Similarly, the evaluations of parole guidelines
indicate that parole examiners attempt to follow the guidelines of parole
boards.
High compliance of prosecutors and parole boards with sentencing
reforms, when it occurs, is likely to be the result of both administrative
controls within the relevant agencies and favorable responses to the
sentencing innovations by participants. Prosecutors working in systems
that have prohibited plea bargaining tend to prefer the new regime
(although defense lawyers dislike it). For prosecutors, the shift from
haggling over sentences and charges to expending greater effort to de-
velop cases for trial enhances their self-image and demands more
"professional" behavior. The support for parole guidelines sometimes
expressed by hearing examiners and parole board members, too, was
not surprising, since the guidelines represent the policy of the board
that initiated their development, can be changed by the board when
guidelines and practice tend to diverge, and relieve individual members
of some of the difficulties of decision making.
Judges, who traditionally operate as independent agents relatively
free of administratively imposed changes and organizational controls,
have complied with new sentencing provisions only when changes have
been mandated by statute, as in the instances of mandatory and deter-
minate sentencing laws and statutory sentencing guidelines. In the ju-
risdictions studied, voluntary sentencing guidelines have produced no
measurable judicial compliance.
Adaptive Responses
There is much evidence of adaptive responses by officials who alter case-
processing methods in order to circumvent new rules and procedures
for some categories of offenders. Increased case screening or other early
disposition of cases effectively avoids application of sentencing laws.
Voluntary sentencing guidelines have had no discernible impact on ju-
dicial behavior or court processing; they have simply been ignored.
OCR for page 221
Sentencing Reforms and Their Effects
221
Sentencing Outcomes, Disparity, and Marginal Cases
Modest changes in sentencing outcomes, particularly in the use of prison
sentences, followed implementation of sentencing innovations. In-
creases in sentence severity were most typically found in those marginal
cases for which imprisonment had been most uncertain prior to the
innovations. Both high-seriousness cases, for which imprisonment had
been and continued to be likely, and low-seriousness cases, which were
unlikely to be given a prison term, experienced little change.
Concerns that defendants with minor records or those accused of
minor offenses would become enmeshed in the rigidity of the new scheme
were expressed by critics of plea-bargaining bans and mandatory sen-
tencing laws. The evidence from virtually every study indicates that these
apprehensions were well founded: marginal offenders who did not ben-
efit from early filtering decisions have been subject to harsher sentences.
Ironically, while the severity of those sanctions that were imposed for
certain offense types sometimes increased, the rate of persons impris-
oned and the likelihood of imprisonment declined. In New York, for
example, about 11 percent of those arrested on drug charges were im-
prisoned in both 1972 and the first half of 1976, but the number of drug
arrests was much smaller in 1976 so that there were fewer prison sen-
tences imposed overall.
One of the goals of the sentencing reforms was the reduction of
disparity in time served by like offenders with like cases. Several studies
present some evidence suggesting that reduction in sentence variation
did result from DSL in California, Minnesota's sentencing guidelines,
and parole guidelines in several jurisdictions. However, this does not
address variations in case processing before the sentencing stage and
their effects. For example, two cases in which the underlying offense
behavior is the same might still result in different charges at conviction
and thus still be sentenced differently as a result.
METHODOLOGICAL CONCERNS
Our review of impact evaluations suggests the need to address a number
of key methodological issues in subsequent evaluations of criminal jus-
tice reforms generally and of sentence reforms particularly.
The Need for Extended Observation Periods
Several of the evaluations reviewed here involved simple two-point,
proreform and postreform designs that are inadequate for a number of
reasons. First, such designs do not permit distinguishing discrete changes
OCR for page 222
222 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
or effects associated with a reform from the continuation of preexisting
trends. Multiple observations of outcomes before implementation of a
change are highly desirable, as indicated by several studies of DSL in
California; those extended observations were crucial to the conclusion
that introduction of determinate sentencing in California resulted in no
substantial changes in sentencing outcomes in that state.
Ideally, the postreform observation period should also extend for
multiple observations after the reform, because case processing often
takes months or even years. Thus a sentencing reform that is to apply
to all cases involving offenses committed after January 1 of a year may
not be applied to any substantial number of cases until well into the
second year after the reform is implemented. If the reform increases
case-processing time, there will be further delay before full impact. To
the extent that cases disposed early differ significantly from cases that
take longer to resolve, early evaluations of effects are likely to be biased
and may indicate opposite effects from later evaluations.
The possibility of delayed impact was strongly suggested both by the
dramatic increase in early guilty-plea rates in California and under the
New York drug laws, where median disposition times increased and
conviction and imprisonment rates for drug felonies fell immediately
after the law went into effect. A gradual increase of sanction rates in
New York by 1976 and a drop in early guilty pleas in the second year
under DSL in California suggest the need for more data points.
To avoid possible spurious findings of effects arising from delays,
evaluations should routinely include measures of case-processing times
and changes in work loads and backlogs. These variables are important
not only as direct indicators of impact, but also for identifying necessary
follow-up periods after a reform.
The Need for Outcome Measures at All Levels of Case Processing
Evaluations are often limited to aspects of the process directly affected
by a reform and fail to address processing at earlier or later stages in
the criminal justice system. This narrowness of focus fails to acknowl-
edge the complexity of criminal case processing and the many oppor-
tunities for the exercise of discretion that it affords. While in a literal
sense criminal sentences are limited to the sanctions imposed by the
court on convicted offenders, the character of these sentence outcomes
is substantially influenced by factors determining which cases are actually
available for sentencing.
If those cases least likely to end in a prison sentence if convicted are
OCR for page 223
Sentencing Reforms and Their Effects
red =
223
weeded out by changes in screening, charging, case dismissal, or shifting
final disposition from higher to lower courts, the cases that reach the
higher courts will be increasingly restricted to the more likely prison
cases. An observed increase in prison use among higher court convictions
then might be more apparent than real, because it derives at least in
nart from a chance in the mix of cases at the higher court rather than
from a real change in policy to extend prison use to cases previously
sentenced to nonprison outcomes.
The importance of changes in the filtering process is clearest in the
evaluations of the New York drug laws (Joint Committee on New York
Drug Law Evaluation, 1978) and the mandatory sentencing law for
firearms violations in Detroit, Michigan (Heumann and Loftin, 1979~.
In both jurisdictions prison use for convicted offenders increased dra-
matically after the reform, but conviction rates fell and fewer cases
entered the system; consequently, there was virtually no change in the
proportion of all cases entering the system that resulted in imprisonment.
The considerable opportunities for filtering cases before they reach
the sentencing stage cannot be ignored. The need to adequately address
the effects of changes in filtering is a central lesson from our review.
The Need for Adequate Controls for Changes in Case Attributes
General changes in the character of cases particularly changes in the
seriousness of cases are related to but certainly not limited to the
filtering process. Case attributes relevant to sentencing outcomes might
also be affected by general changes in offending patterns and demo-
graphic changes in the offender population. Failure to control for any
resulting changes in ease attributes before and after a reform can seri-
ously jeopardize the validity of conclusions about the impact of that
reform on case outcomes at various stages, particularly sentencing out-
comes.
The Need for Qualitative Analysis of System Functioning
Many evaluations are limited entirely to statistical analysis of abstracted
case-processing data, often available from centralized automated data
systems. While such analyses can provide aggregate average character-
izations of case processing for large numbers of cases, they seldom
provide adequate data to understand the ways courtroom participants
alter their behavior to cope with the changes. The complexity of the
sentencing process strongly indicates that statistical research based on
OCR for page 224
224 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
official records cannot adequately address the system impact of legal
changes. Although statistical analyses are an important component of
evaluation research, they must be augmented by extensive use of par-
ticipant observation, systematic interviewing, and other qualitative
methods.
Representative terms from entire chapter:
sentencing reforms
