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1
Introduction:
Sentencing Practices
and the Sentencing
Reform Movement
The sentencing decision is the symbolic keystone of the criminal justice
system. It is here that conflicts between the goals of equal justice under
the law and individualized justice with punishment tailored to the of-
fender are played out and here that the criminal law is interpreted and
applied. So it is not surprising that, as crime increased and questions
about the fairness and effectiveness of the criminal justice system grew
more and more pressing in the United States in the early 1970s, re-
formers turned to the courts and their sentencing practices, which one
federal judge characterized as "lawless" (Franker, 1972~.
Increased awareness of the pivotal role of sentencing in linking the
criminal law and criminal sanctions has recently focused reform efforts
on sentencing. These developments followed 50 years in which there
had been little change in sentencing practices and institutions. When
the National Commission on Reform of Federal Criminal Laws reported
to Congress in 1970, its sentencing proposals to rationalize and simplify
the then-ubiquitous systems of indeterminate sentencing differed little
from those of the Model Penal Code developed in the 1950s. When the
commission reported, "determinate," "presumptive," and "flat-time"
sentencing had not yet been proposed. The U.S. Parole Commission's
parole guidelines were several years away. With minor exceptions, sen-
tencing was not on state legislative agendas. Sentencing guidelines were
beyond the horizon.
Since 1975, however, substantial changes have been introduced. Pa-
role has been abolished in at least 10 jurisdictions, while parole guide-
39
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40
RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
lines have been established in at least 9 others More than 30 states have
passed mandatory minimum sentencing laws for selected offenses. By
1982, statewide sentencing guidelines were in effect or in advanced stages
of development in 6 states, and local sentencing guidelines had been
developed in more than 50 jurisdictions. In Alaska, plea bargaining has
been abolished by the attorney general, and many local prosecutors
have banned some or all forms of plea bargaining or have regulated it
closely.
The sentencing reform movement has forced a reconsideration of the
sentencing process and the goals of criminal sanctions. For many years
the term "sentencing" produced civics-book images of high-ceilinged
courtrooms, robed judges, and abashed defendants. The existence of
plea negotiations was usually not acknowledged, and so defendants were
often required to pretend at sentencing that their confessions had re-
sulted only from remorse or contrition. The hypocrisy was blatant: every-
one in the courtroom knew that most guilty pleas were induced by
prosecutorial concessions or assurances, but the illusion of autonomous
judicial decision making was maintained. Similarly, questions about the
conflicts between utilitarian and retributive sentencing goals and the
tensions between an individualized offender-oriented approach and uni-
form treatment of similar offenses were ignored. The claims of sup-
porters of the system that the indeterminate sentence simultaneously
was just and effective in incapacitating, rehabilitating, and deterring
would-be offenders meshed neatly with the interests of criminal justice
system personnel to maintain the status quo. By the late 1970s it was
generally acknowledged that negotiated justice is the norm in most
criminal courts, and there was a growing sense that neither fairness nor
crime control had resulted from existing practices. And it was also rec-
ognized that "sentencing" encompasses a variety of participants, proc-
esses, and conflicting goals that influence a judge's sentence. ~
Sentencing is now understood as the allocation of punishment, and
among the allocators are legislators, victims, police officers, prosecutors,
defense counsel, judges (and occasionally juries), parole boards and
examiners, and prison administrators. The decisions of criminal justice
officials at arrest, prosecution, conviction, sentencing, and parole affect
the nature and amount of punishment suffered by an offender. Addi-
tional choices by criminal justice system officials also can affect the
punishment of an offender: the bail-release decision; assignment to a
diversion program; assignment to a particular prison; loss or award of
"good time" time off a sentence for good behavior by prison au-
thorities; and revocation of probation or parole. At any point in the
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Introduction
41
process the decisions of victims, police officers, prosecutors, and judges
can terminate official proceedings or affect the decisions of others at a
subsequent stage. Each of those decisions takes place in the context
provided by the legislature through the criminal laws that prohibit certain
behaviors and establish minimum and maximum punishments for them.
And throughout this process, the decisions are affected by the conflicting
normative goals and institutional interests that characterize the system.
In this chapter we first describe the variety of decision processes that,
together, determine whether an offender is formally punished and, if
so, how much. We next survey the origins of the processes described
and the purposes they serve and review some of the philosophical con-
troversies involved in the sentencing decision. We conclude with a brief
survey of the origins, chronology, and manifestations of the current
movement to change sentencing rules and institutions.
THE PROCESSES THAT CONSTITUTE SENTENCING
Any effort to "reform" or even to understand sentencing must take into
account the existence of the many participants and decisions that to-
gether constitute "sentencing" and the conflicting values, perspectives,
and interests among them. This very complexity, however, frustrates
efforts to change the criminal justice process in America.
VICTIMS AND WITNESSES
Victims initiate criminal justice action when they decide to complain to
the police. They also, subsequently, affect the likelihood of conviction
and punishment through their ability and willingness to cooperate with
the prosecution. Victim and witness noncooperation is a major cause
of charge dismissals in the United States (Institute for Law and Social
Research, 1981; Vera Institute of Justice, 1977~. According to the Na-
tional Crime Survey, 56 percent of violent crimes went unreported in
1978 (including 35 percent of robberies with injury), as did 75 percent
of personal crimes of theft and 64 percent of household crimes (U.S.
Department of Justice, 1980b). In general, the more serious the crime
and the greater the likelihood that reporting the crime will produce
some result, the higher the rate of reporting, and the more likely a
victim is to cooperate with the prosecution.
Victims have little direct effect on the actual sentences received by
convicted offenders, because they rarely are consulted by the judge or
the prosecutor during plea negotiations, at trial, or during a sentencing
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RESEARCH ON SENTENCING THE SEARCH FOR REFORM
hearing. However, their role- in activating the criminal justice system is
very important, and the growing awareness of the frustration and neglect
of victims of crime has contributed to increased attention to their con-
cerns.
POLICE
Police decide whom to notice, to stop, to arrest, to book, and (in some
jurisdictions) to charge. Police officers have the primary authority to
decide who will not be pursued by the criminal justice system. Most
police patrol work involves officers in "keeping the peace" or handling
threats to public order (Bittner, 1970; Wilson, 1973~. For perpetrators
of minor offenses involving public disorder, family violence, and small-
scale drug trafficking, Feeley (1979) asserts that "the process tof going
through misdemeanor court] is the punishment" (also see Alfini, 1981;
Ryan, 1980/1981~. The exercise of discretion in the police decision to
arrest largely dictates the outcome in these cases. The police also possess
substantial autonomy in handling serious crimes of violence and inves-
tigating organized illegal activities and large property loss or damage
(see Manning, 1980; Rubenstein, 1974~. Police are relatively free to
decide which complaints to follow up, with what diligence and resources,
and to select their means of investigation, using informants, surveillance,
undercover, and "sting" operations. Police decisions to file criminal
charges are subject to review by prosecutors and judges, but police
decisions~to disregard crimes or to pursue only informal remedies are
not subject to any further review.
PROSECUTORS
Prosecutors establish priorities and determine the vigor with which var-
ious kinds of cases will be pursued. In the 1970s, for example, many
prosecutors ceased prosecuting marijuana possession cases; in effect,
those prosecutors decriminalized marijuana use in their jurisdictions.
Prosecutors also exercise substantial discretion over individual cases.
Prosecutors decide what charges to file or, if the police file charges,
what to dismiss. Like the decisions of police officers, prosecutors' de-
cisions to release without arrest, or to arrest on only minor charges, are
final. Charge dismissals or unilateral reductions are not subject to in-
dependent review. Prosecutors also decide whether, when, and what to
negotiate and whether to recommend a particular sentence to a judge
or agree to a recommendation by defense counsel. The large majority
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Introduction
43
of convictions result from guilty pleas, most of which are the result of
negotiations.
Plea bargaining takes diverse forms. In horizontal charge bargains, a
prosecutor agrees to drop several charges for an offense type if the
defendant pleads guilty to the remaining charges (e.g., three burglary
charges are dropped when the defendant pleads guilty to a fourth). In
vertical charge bargains, a prosecutor agrees to drop the highest charge
if the defendant pleads guilty to a less serious charge (e.g., a narcotics
trafficking charge is dropped if the defendant pleads guilty to a narcotics
possession charge, or a charge of armed robbery is dropped if the de-
fendant pleads guilty to a charge of robbery). In sentence bargains, a
prosecutor agrees that the defendant will receive a specific sentence in
return for a guilty plea. In fact bargains, a prosecutor agrees not to
introduce evidence of specific aggravating circumstances. Other plea
bargaining variants involve prosecutorial agreements to recommend or
not to oppose particular sentences or to dismiss charges in consideration
of the defendant's cooperation in other prosecutions or investigations.
Whatever form plea bargaining takes, the prosecutor and to a lesser
extent the defense counsel often stand supreme. The judge sometimes
has little choice but to ratify their decisions, and, constitutionally, pros-
ecutors' plea-bargaining tactics are virtually immune from judicial re-
view (Bordenkircher v. Hayes, 434 U.S. 357 1978.
The criteria by which prosecutors screen and evaluate cases and al-
locate their offices' limited resources are rarely the subject of public
debate, but they pose difficult questions regarding priorities, policies,
and goals. Should uniform policies or rules regulating plea bargaining
be adopted? What should they be? How should such policies or rules
balance considerations of the seriousness of the offense, the character-
istics of the offender, the strength of evidence or the likelihood of
winning a case, and its possible political repercussions? Should an office
concentrate its resources on, and recommend incarceration for, chronic
property offenders who may pose little physical danger to other people
but who are likely to continue offending; on white-collar offenders or
corrupt public officials whose nonviolent property offenses may involve
large dollar losses to the public or affect confidence in the integrity of
their government; or on violent offenders, particularly those who may
have short prior records and who may be unlikely to repeat their of-
fenses? Should considerations of whether an individual is likely to be
deterred from further offending, incapacitated by incarceration, or re-
habilitated by a particular sanction affect prosecutors' recommenda-
tions, or should there be a uniform standard of punishment based on
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44
RESEARCH ON SENTENCING THE SEARCH FOR REFORM
only the seriousness of the offense? If the latter, how should a uniform
standard be devised?
JUDGES
Judges impose sentences. They decide who goes to prison and who does
not; they set the terms of nonincarcerative sentences; and (depending
on whether there is a parole board and on the rules governing parole
eligibility) they set minimum, maximum, or actual lengths of jail and
prison terms. Where there is a parole release agency, the judge's critical
decisions are who goes to prison and for what minimum and maximum
terms; where there is no such agency, the judge's decision also deter-
mines the actual amount of time served.
Judges' decisions are affected by the diverse goals they pursue in
sentencing in general and in any particular sentence. How might a judge
sentence a person who is a chronic property offender compared with an
offender convicted for the first time of assault? A judge who has utili-
tarian goals might be more inclined to incarcerate the property offender
on the basis of crime prevention concerns. Such a judge might ask
whether a period of incarceration is likely to deter or rehabilitate either
offender and assess the chances of recidivism in terms of the offender's
prior record and personal characteristics. Or the judge might consider
how many similar offenses might be averted by incarceration and weigh
the cost of incapacitation against the cost of the crimes and the danger
to public safety posed by the offender. A judge who has retributive
goals would focus on the amount of harm done by the criminal acts and
the offender's personal culpability in deciding on the sentence that is
"deserved." Such a judge might give the assaulter a heavier sentence
on the basis of offense seriousness.
Judges' powers, however, are informally but importantly affected by
the work of other court personnel. First, in jurisdictions in which sen-
tence bargaining is common, often a judge's choice is whether to ratify
the negotiated sentence. Second, where charge bargaining is prevalent,
a judge usually accedes to proposed charge dismissals and may impose
a sentence only within the constraints set by any statutory sentence
provisions. Third, probation officers devote more time to investigation
of the offender's circumstances and to consideration of the case than
judges possibly can, and so they control the flow of information to
judges. Probation officers are attached to most modern felony courts;
presentence reports containing their recommendations are commonly
provided to judges, and these recommendations are usually followed
(Carter and Wilkins, 1967; Townsend et al., 1978~.
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Introduction
PAROLE BOARDS
45
Although parole boards have been abolished in some jurisdictions and
in others they have lost their authority to determine release dates in
the majority of states they retain control over parole release. Judges
often set maximum sentences (and in some states minimums as well),
but the maximum is often very long; parole boards decide who and when
to release prior to sentence expiration; the conditions to which a parolee
will be subject while on parole; when and why parole can be revoked;
and when after revocation, if at all, an offender can be rereleased prior
to the end of the maximum sentence. Parole revocation receives little
attention from researchers or reformers, yet one of every five paroled
prisoners is recommitted or otherwise returned to prison for violation
of parole conditions within 3 years after an initial parole (Criminal
Justice Research Center, 1980:668, hereafter cited as Sourcebook, 1980~.
Parole boards traditionally make individualized release decisions, tak-
ing account of a wide variety of offender characteristics. In establishing
uniform criteria for releasing offenders, they, too, face the basic dilemma
in criminal justice: How much emphasis should be placed on the seri-
ousness of the conviction offense in attempting to follow the injunction
to "treat like cases alike" and how much on the characteristics of the
defendant, including prior record and employment status, in predicting
whether the release constitutes a danger to the community?
CORRECTIONS ADMINISTRATORS
Corrections administrators affect the duration of imprisonment by the
award, withdrawal, or denial of time off for good behavior and by their
recommendations and reports to parole boards when a prisoner is being
considered for early release. Corrections administrators also influence
the quality of a prisoner's confinement through decisions about insti-
tutional assignments and participation in various kinds of furlough pro-
grams. Whether an inmate spends time in a maximum security prison,
in a less restrictive minimum security facility, or in a group home in his
or her hometown is almost entirely in the hands of corrections author-
ities. Admission to a work, educational, or terminal furlough program
is often akin to release from prison.
EXECUTIVE CLEMENCY: COMMUTATIONS AND PARDONS
Although pardons and similar executive release mechanisms once played
a major part in prison releases (see Barnes and Teeters, 1959; Messinger,
1979), these ad hoc powers are no longer extensively used in most states.
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46
LEGISLATURES
RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
Legislative influence in sentencing is first and last: it is first because a
legislature constructs and can always alter the basic statutory framework
that other officials are charged to carry out; it is last because most
punishments prescribed by law are not self-executing but can be realized
only through other officials. If those officials behave inconsistently with
the law, there is little a legislature can do. Even such seemingly au-
thoritative laws as those calling for mandatory minimum sentences can
be effected only through others; if prosecutors and judges choose to
circumvent the law, mandatory terms will not be imposed. Sometimes
a legislature's punishment decisions are definitive: for example, if in-
carceration is eliminated from the sanctions available for marijuana
possession, the remaining punishment decisions are of less consequence
than before; if marijuana use were legalized, punishment would no
longer be applicable. Sometimes statutes are drafted so broadly that
they provide little guidance in individual cases. For example, the max-
imum prison terms authorized for most offenses- 5 or 10 or 25 years-
are so much longer than the sentences typically imposed or served that
the legislative decision has little significance for the operation of the
system.
THE SYSTEM AS A WHOLE
The operations of this complex system of criminal justice, with its net-
work of multiple, overlapping, and interconnecting discretions and con-
flicting goals, are not easily altered; like the operation of any complex
system, they are influenced by powerful forces of tradition, institutional
convenience, scarcity of resources, and self-interest. Officials who wish
to circumvent or undermine a new law can usually find ways to do so;
legislative changes are impositions from outside and are often resisted.
A mandatory minimum sentence law, for example, can easily be avoided
if the prosecutor dismisses or never files charges. A determinate sen-
tencing law or sentencing guidelines can be evaded by artful charge
bargaining. Parole guidelines can be evaded by lawyers who regard the
applicable parole release date as an upper limit and arrange for the
defendant to plead guilty to an offense bearing a maximum sentence
less than that specified in the guidelines.
Such reactions are foreseeable. The staffs of prosecutors' offices and
the courts have institutional goals and personal interests to serve and
limited resources to expend. Sometimes their personal views of justice
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Introduction
47
and injustice may not easily accept legislative solutions to the crime
problem. Since new laws are seldom accompanied by appropriation of
funds sufficient to permit literal and wholehearted compliance with them,
something must give, and that something is often compliance.
The complexity of the system also often confounds reform initiatives
by merely shifting the locus of decision-making power from one agency
to another. The California determinate sentencing law, for instance,
eliminated parole release decisions for most prisoners, but in doing so
it simply shifted power over release from the parole agency to the judge
and beyond the judge to the prosecutor. Although there is no evidence
that prosecutors are better situated or qualified than judges or parole
boards to make sentencing decisions, the greater predictability of sen-
tences under the new law afforded prosecutors increased influence on
sentences by means of their charging and charge dismissal decisions.
Illinois's determinate sentencing law abolished parole release and al-
lowed day-for-day credits for good behavior, but the prisoner receives
no vested right to earned good time. And since good time can be with-
drawn for misconduct, it is prison guards and officials, not the parole
board, the judge, or the legislature, who effectively determine when
prisoners are released.
The criminal justice system's complexity makes it difficult to predict
the effects of change. In later chapters, we discuss the implications of
this complexity for conducting research on the determinants of sen-
tencing (Chapter 2), for thinking about how to structure and implement
new sentencing strategies (Chapter 3), for evaluating the impact of new
sentencing systems (Chapter 4), and for anticipating and structuring the
effect of changes in sentencing on prisons (Chapter 5~. In the rest of
this chapter, we explore the often-conflicting goals of criminal justice
sanctions; we briefly review the evolution of present American sen-
tencing institutions, comparing them with their European counterparts;
and we use that as background for describing the origins of the sen-
tencing reform movement.
TtIE GOALS OF CRIMINAL SANCTIONS
Sentencing in general or the methods and consequences of change in
specific sentencing practices cannot be considered without regard for
the purposes and goals of the sanctioning process. Whether the allo-
cation of punishment is efficient, just, or effective cannot be assessed
without specifying the criteria by which to judge the outcomes. The
criteria might include the expeditious disposition of cases, the reduction
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48
RESEARCH ON SENTENCING THE SEARCH FOR REFORM
of crime, and the rendering of morally perfect justice, however mea-
sured. Such issues have moral and philosophical implications far beyond
the panel's mandate or competence. While we have made no effort to
resolve differences about the philosophy of punishment, we have at-
tempted to be sensitive to those differences. We also suggest how various
philosophical premises might differentially affect sentencing structures
and the formulation of sentencing policy. The goals and purposes of
punishment that are most often asserted are of two sorts: normative and
functional.
.
NORMATIVE GOALS
It is often stated that the normative goals of punishment are the utili-
tarian ones of rehabilitation, incapacitation, and deterrence and the
retributive one of imposing deserved punishment as an end in itself.
Rehabilitation refers to the reform of the offender, and it can include
special deterrence, which is the inhibiting effect of the sanction on the
future behavior of the offender. Incapacitation refers to the effect of
isolating identified offenders from society, thereby preventing them from
committing further crimes Deterrence refers primarily to general de-
terrence, which is the inhibiting effect of sanctions on others. To state
these goals, however, obscures more than it enlightens. These diverse
goals often conflict and, depending on their relative priority, may argue
for different dispositions in particular cases.
The English philosopher H. L. A. Hart (1968) provides a useful frame-
work for consideration of the normative goals of punishment. Observing
that debates about the philosophy of punishment are often unnecessarily
confused, he proposed that debaters devote separate attention to the
three distinct questions:
· The general justifying aim—What is the general justification of the
social institution of punishment?
· The question of liability Who is to be punished?
· The question of amount How much?
Hart's framework usefully isolates issues for discussion and demon-
strates the potential coherence of punishment philosophies that have
more than one purpose. For example, one can reasonably claim the
utilitarian goal of crime prevention as the general justification of pun-
ishment and still insist that retributive considerations require that pun-
ishment be limited to conscious offenders and that the amount of
punishment be closely proportioned to the offender's moral culpability.
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Introduction
49
Thus one can consistently accept utilitarian prevention as the social
justification of punishment and at the same time argue that moral con-
siderations forbid the imposition of exemplary punishments. Alterna-
tively, one can invoke retributive considerations to argue that liability
to punishment should depend on an individual's conscious offending
while the amount of punishment need not be closely proportioned to
culpability but can instead be adjusted to reflect rehabilitative needs,
deterrent and incapacitative considerations, and so on.
Developments in philosophy over the last 20 years have importantly
influenced the criminal law and sentencing. In both moral and political
philosophy there has been a resurgence of interest in contractarian the-
ories, often called "rights theories" (e.g., Dworkin, 1977; Gewirth,
1978; Nozick, 1973; Rawls, 1971), which pose several questions as their
central concerns: What rights do individuals have? What is the source
of those rights? When and under what circumstances may rights be
disregarded or overridden? This new interest in rights conflicts with the
older utilitarian premises of the substantive criminal law and the insti-
tutions of the criminal justice system. A punishment philosophy based
primarily on concern for rights is what Hart called "backward-looking,"
interested primarily in the moral quality of the offender's acts and the
punishment that the offender deserves for them; a utilitarian punishment
philosophy is "forward-looking," primarily concerned with the effects
of punishment.
In Hart's terms, indeterminate sentencing and its institutions are de-
cidedly forward-looking. Thus, one rationale of parole is that people
will remain incarcerated until they are rehabilitated. Parole release pol-
icies have typically been influenced by recidivism rates and the aim of
keeping in prison longer those offenders who are expected to commit
additional crimes. Criminal codes commonly provide maximum sen-
tences that are designed to permit substantial scope for their discre-
tionary reduction by the parole board and to permit judges to indivi-
dualize sentences. Both the Model Penal Code (American Law Institute,
1962) and the Study Draft of the National Commission on Reform of
Federal Criminal Laws (1970) are avowedly rehabilitative in their prem-
ises. Few of these practices or premises follow from a backward-looking
punishment philosophy.
One influential manifestation of the development of rights theories
is the just deserts theory articulated by Andrew von Hirsch, who argues
that the justification of punishment in individual cases rests on the of-
fender's moral culpability and that the amount of punishment must be
proportional to that culpability rather than being determined by utili-
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58
Colonial America
RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
Prior to the American revolution, American criminal justice practices
resembled those in Britain. The criminal law was harsh. In a society
with limited communications, no police (only a voluntary nightwatch
system), few jails, and rudimentary record-keeping, crime control efforts
were designed principally to deter would-be offenders by imposing pun-
ishments so terrible that few would dare break the law. More than 350
offenses were punishable by capital punishment (Hartung, 1952), and
less serious offenses were subject to sentences of corporal punishment,
fines, or banishment. Penal incarceration was a rarely applied sanction,
although sometimes offenders were held in jail to prevent flight pending
trial or until their execution.
1790-1820: Reform of the Law
The founding of the republic and the era of political ferment that fol-
lowed it led to major reforms in American sentencing ideas and practices
that increasingly diverged from those in Europe. The principal one was
a movement away from capital punishment to imprisonment a mea-
sured time of exclusion from society for criminal offenses. This change
had both ideological and practical support. The number of capital crimes
was greatly reduced, in part because such harsh punishment had failed
to deter crime and had resulted, instead, in juries that more and more
frequently refused to convict. At the same time, Enlightenment ideas,
particularly those of the philosopher Beccaria, gained favor. He argued
that greater certainty of punishment, rather than an emphasis on se-
verity, would more effectively deter crime. Many legislatures came to
the conclusion that wholesale reliance on capital punishment was self-
defeating. More lenient codes prescribing fixed periods of imprisonment
were recognized as both more humane and appropriate for a new nation
with a populist government. They also represented a more promising
form of crime control, since they offered the prospect of reforming
criminals, not merely punishing them.
By 1820 many state legislatures had drafted new criminal codes that
prescribed fixed sentences to match the seriousness of the offense. Sen-
tences were long: 40 years for murder, 20 years for arson, and 10 years
for burglary were common (Rothman, 1981~. Yet, in contrast to capital
punishment, imprisonment seemed more humane and more certain, and
therefore more effective.
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Introduction
1820-1900: Emphasis on Prisons
59
Although reformers at the beginning of the nineteenth century had
hoped to find an answer to the crime problem through sentencing reform
and criminal codes, for much of the rest of the century attention was
shifted from sentences and the likelihood of their imposition to the
penitentiary as nineteenth century prisons were called and the ex-
perience of punishment as the critical mechanism of crime control.
By midcentury penitentiaries had been built in many states. The rea-
sons for and significance of this development have been variously in-
terpreted. It has been argued that they signified the triumph of Enlight-
enment ideals and the rejection of inhumane forms of corporal and
capital punishment (McKelvey, 1977~; an indictment of a disordered
society by Jacksonian reformers nostalgic for a stable but vanished co-
lonial society (Rothman, 1971~; and a precursor, or metaphor, for a
surveillant disciplinary society (Foucault, 1978~. Whatever their origins,
prisons were built and prisoners were sentenced to long terms of incar-
ceration fixed by judges.
Faith in the rehabilitative potential of the penitentiary affected sen-
tencing procedures in several ways. Initially it reinforced the legitimacy
of uniform fixed dispositions based exclusively on the crime itself: the
penitentiary was viewed as a panacea for all types of deviant behavior.
In addition, the promise of offender reform led to a shift in emphasis
from the traditional principles of deterrence and retribution to concern
with rehabilitation. Reformers expected imprisonment not only to dis-
suade would-be and sentenced offenders from pursuing criminal acts,
but also to alter the offenders themselves. Until about 1850 there was
no sense of conflict among the purposes of sentencing, since reformers
viewed the penitentiary and its regimen as simultaneously deterring
offenders from further criminality, incapacitating them, and rehabili-
tating them through fixed sentences of long duration. All agreed that
sentences should be lengthy: for the conservatives, to deter offenders;
for reformers, to allow time for rehabilitation to occur.
By the 1860s, when penitentiaries were only a few decades old, their
defects had become clear, and a new wave of reformers set out to
improve the institutions and save prisoners from them (Rothman, 1980~.
To cope with the crowding, brutality, and disorder of prisons, "good
time" was introduced, giving wardens a mechanism of control other
than corporal punishment; the use of governors' pardoning powers greatly
increased; and probation programs first appeared, to keep minor of-
fenders out of institutions. More important, from the standpoint of
sentencing, was the arrival of indeterminate sentences under which
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60
RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
corrections officials could decide when prisoners would be released based
on their rehabilitation initiated at New York State's Elmira Refor-
matory when that institution opened in 1877.
1900-1970: The Rehabilitative Model
Among the accomplishments of the Progressive era reformers between
1900 and 1930 was the all-but-universal adoption of indeterminate sen-
tencing based on rehabilitation of the offender and the creation of parole
boards with discretion over release decisions. Reformers asserted that
the causes of criminal behavior were different for each offender, and
therefore they sought to individualize criminal justice procedures. The
medical model prevailed as the offender came to be viewed as sicker
in need of treatment and the prescription had to be tailored to each
offender's illness. Thus the determinants of sentences were shifted away
from the offense to the offender from what he had done to who he
was. And a decision about the offender's "cure" could only be made
by a professional after treatment, not at the time of commitment.3
Just as historians differ in their accounts of the origins of the prisons,
they also disagree on the reasons for the creation of the rehabilitative
penal system with its vast discretions and minimal accountability. Roth-
man (1980) believes modern institutions resulted from a congruence
between the humanitarian impulses of benevolent reformers and the
instrumental convenience that rehabilitative discretions afforded offi-
cials; other historians disagree with this explanation (see, e.g., Mennel,
1973; Platt, 1977; Walker, 1979, 1980~. There is agreement, however,
that modern American criminal justice practices are of very recent or-
. .
gln.
Between 1930 and 1970 there were changes in criminal law and pro-
cedure, but these had little impact on the ways criminal offenders were
handled. The American Law Institute worked on the Model Penal Code
throughout the l950s and completed its work in 1962; in the following
years many state legislatures adopted derivative criminal codes. The
Model Penal Code and the proposed criminal code of the National
Commission on Reform of Federal Criminal Laws (1970) exemplify the
stability of the attitudes of the legal establishment toward the criminal
justice system between 1930 and 1970. Both codes had avowedly re-
habilitative outlooks; both perpetuated the indeterminate sentence and
3 During this period, too, juvenile courts were established with an even stronger emphasis
on rehabilitation, and the scope and claims of probation were expanded.
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61
the parole board; both granted immense discretion to judges and parole
boards. Although the Model Penal Code also dealt with some matters
of criminal procedure, the major procedural changes of the 1960s em-
anated from the Warren Court, which issued a series of opinions that
applied to the states most of the criminal procedure provisions the Bill
of Rights imposed on the federal system.
THE CURRENT SENTENCING REFORM MOVEMENT
Since 1970 numerous sweeping reforms of the criminal justice system
have been undertaken. After nearly 40 years of stability, the indeter-
minate sentencing system has been abruptly rejected in state after state.
Between 1975 and January 1982, 11 states abolished parole release for
the majority of offenders,4 17 states established administrative rules for
release decisions (e.g., parole guidelines),5 more than 30 states passed
mandatory minimum sentence laws, and, in almost every state, judges
experimented with guidelines to structure their own sentencing deci-
sions.
The history of sentencing reform in the 1970s is yet to be written;
time must pass before historians will be able to understand this frenzy
of activity. However, we note several recent developments that either
influenced recent sentencing initiatives or were themselves symptomatic
of the same social forces that caused those initiatives.
Prison Uprisings and the Civil Rights Movement
Prison uprisings in the late 1960s, at the Tombs in New York City and
state prisons in Florida' Indiana, New York (Attica), and elsewhere,
demonstrated several things: prisoners were deeply discontented; they
were disproportionately black and brown; rehabilitation rhetoric was,
in many prisons, no more than rhetoric. The civil rights movement had
reached inside prison walls by the mid-1960s. A large number of suc-
cessful prisoners' rights cases in the federal courts gave prisoners an
opportunity to be heard outside the prison, and they were listened to.
The first influential book calling for rejection of the indeterminate sen-
4Alaska, Arizona, California, Colorado, Connecticut, Illinois, Indiana, Maine (which
was first), Minnesota, New Mexico, and North Carolina.
s Florida, Georgia, Hawaii, Louisiana, Maryland, Michigan, Minnesota, New York,
Ohio, Oregon, Rhode Island, South Carolina, Washington, West Virginia, and Wisconsin
(Uniform Parole Reports, 1980~.
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RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
fencing system, Struggle for Justice (American Friends Service Com-
mittee, 1971), began by quoting the demands of a group of prisoners in
the Tombs. Prisoners, their complaints, and what goes on inside prisons
were major catalysts of modern sentencing reform (see, for example,
Zimring, 1983~.
The Philosophy of Rights and Control of Discretion
Modern criminal law and the indeterminate sentencing system took
shape in an era when utilitarianism was the philosophical perspective
most commonly brought to bear on public policy matters. The Model
Penal Code and the more than 30 state codes emulating it were avowedly
utilitarian in premises and outlook. Retribution was expressly de-
nounced, and rehabilitation was endorsed as the primary goal of pun-
ishment. Williams in England (e.g., 1961) and Wechsler in the United
States, among the foremost scholars of the criminal law, were both
utilitarians primarily concerned with crime prevention as the foremost
goal of the criminal law. The indeterminate sentencing system overtly
focused primarily on offenders and their amenability to treatment rather
than on their offenses. Until the 1960s few principled objections were
raised to indeterminacy, to the rehabilitative ideal, and to the primacy
of utilitarianism in the philosophy of punishment (but see Allen, 1959;
Hart, 1968~.
Although it was anticipated by Hart's Punishment and Responsibility
(1968), the recent challenge to utilitarianism was exemplified by Rawls's
A Theory of Justice (1971), which was followed by a series of powerful
antiutilitarian books (e.g., Dworkin, 1978; Gewirth, 1978; Nozick, 1974~.
Grossly oversimplified, the primary complaint of antiutilitarians was that
utilitarianism does not adequately address justice for individuals. The
advocates of rights theories are primarily concerned with the rights of
individuals and the constraints that those rights place on the assertion
of state power. These theories require that criminal responsibility should
be predicated on moral culpability (which is not necessarily a require-
ment of a utilitarian jurisprudence) and that punishment should be pri-
marily retributive in aim and proportional in amount to an offender's
culpability.
Parallel trends appeared in writings on sentencing reforms. Von Hirsch's
Doing Justice (1976) endorsed retribution, or just deserts, and proposed
that sentencing be guided by detailed sentencing criteria relating largely
to a defendant's moral culpability (see also The Twentieth Century
Fund, 1976~. The indeterminate sentencing system with its vast range
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63
of discretion conflicted with rights theories. The principal theoretical
rival of retribution, the modified utilitarianism of Norval Morris (1974)
and the American Bar Association Criminal Justice Standards Project
(1980), gives greater weight to crime preventive strategies in sentencing
while still insisting that retributive concerns establish meaningful limits
on the amount of punishment that can be imposed in individual cases.
These philosophical developments, along with the distrust for authority
characteristic of the 1960s and 1970s, gave important support to pro-
posals for changing the extensive discretion of judges and parole ad-
ministrators in deciding who went to prison and how long they stayed
there.
Demand for Accountability
Throughout the legal system in the 1960s and 1970s, there was a move-
ment for increased accountability in official decision making. Judicial
decisions in many contexts required that public officials indicate reasons
for decisions and give adversely affected individuals an opportunity to
defend themselves and to dispute material allegations or evidence. Prison
administrators, for example, began to be required to publish their dis-
ciplinary rules and to give prisoners an opportunity to defend themselves
against rule violation charges (Wolff v. McDonnell, 418 U.S. 539 t19743~.
Other cases established procedural requirements to be observed before
offenders could have probation revoked (Gagnon v. Scarpelli, 411 U.S.
778 t19734), have parole revoked (Morrissey v. Brewer, 408 U.S. 471
t1972~), or, in some states, be denied parole (Greenholtz v. Inmates,
442 U.S. 1 t1979~.
Parole came under vigorous attack on the grounds that parole release
decisions lacked standards and, hence, accountability (Davis, 1969, 1976~.
These attacks, coupled with the general movement for increased ac-
countability in official decision making, led to studies of whether parole
boards followed implicit criteria in parole release decisions and whether
those criteria could be expressed in decision rules. A major long-term
project demonstrated the feasibility of detailed published criteria for
parole release decisions (Gottfredson et al., 1978~. The U.S. Parole
Commission adopted parole guidelines based on that research in 1974,
and several state parole boards soon followed. The research team that
had developed the first parole guidelines later explored the feasibility
of using that same method to develop sentencing guidelines for judges
(Wilkins et al., 1978~. Empirically derived sentencing guidelines projects
have since been undertaken in more than 50 jurisdictions.
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RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
Rejection of Rehabilitation
After three-quarters of a century of intellectual hegemony, the reha-
bilitative ideal began to crumble in the 1960s (see, e.g., Allen, 1959)
and collapsed in the 1970s, primarily because of two objections. First,
there was substantial evidence that rehabilitative programs do not de-
monstrably and substantially reduce the later criminality of their clients
(Brody, 1976; Greenberg, 1975; Lipton et al., 1975; Robison and Smith,
1971~. In reviewing the most comprehensive of the reviews, by Lipton
et al., a National Research Council panel concluded that the authors
were "reasonably accurate and fair in their appraisal of the rehabilitation
literature," but it noted two significant limitations (Sechrest et al., 1979:5-
6~:
. . . first, inferences about the integrity of the treatments
analyzed were uncertain and the interventions involved were
generally weak; second, there are suggestions to be found
concerning successful rehabilitation efforts that qualify the
Lipton et al.] conclusion that "nothing works."
Nonetheless, the uncritical support that rehabilitative programs received
before 1970 has been displaced by a deep skepticism. If rehabilitative
programs didn't "work," the claim that prisoners could be released when
they were rehabilitated lost much of its credibility.
Second, there were objections to the rehabilitative ideal because the
extensive discretion characterizing sentencing and corrections programs
were often abused. This was a powerful criticism in a period of wide-
spread distrust of authority and acute sensitivity to the reality even
to the appearance- of racial discrimination and arbitrary decisions.
Disparity and Discrimination
No doubt influenced by prison uprisings, rights theories, increasing em-
phasis on accountability, and decreasing emphasis on rehabilitation (as
well as by the widespread availability of computers for social science
research, which made elaborate multivariate analyses possible), re-
searchers undertook many statistical simulation studies to determine
whether there was substantial evidence of disparity and racial and class
discrimination in sentencing. The findings on discrimination were mixed
(see Hagan, 1974; Hagan and Bumiller, Volume II), but on disparity
they were striking: the research could account for only a small amount
of the variation in sentences imposed by judges (Diamond and Zeisel,
1975; Institute for Law and Social Research, 1981; Partridge and Eld-
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65
ridge, 1974; Rich et al., 1981; Tiffany et al., 1975). While such disparities
were not particularly troublesome when the rehabilitative ideal pre-
scribed sentence variation based on offender characteristics, without
that justification the evidence of substantial, unexplained, and often
apparently unwarranted disparities in sentencing became a primary ra-
tionale for proposals to structure, confine, and monitor the discretion
of trial judges and parole boards.
Crime Control
Official rates of reported and recorded crime have increased almost
steadily since the early 1960s, and there have been numerous criticisms
of the effectiveness of the criminal justice system (van den Haag, 1975;
Wilson, 1975~. Accordingly, increased attention and federal research
funding were given to nonrehabilitative sentencing strategies like in-
capacitation and deterrence and to projects concerned with "career
criminals." (Federal funds were used to establish "career criminal" pros-
ecution units across the United States.) With this heightened emphasis
on crime control, people on the political right joined people on the
political left, concerned about discrimination, disparity, and accounta-
bility, in a combined assault on the institutions of the indeterminate
sentencing system.
The indeterminate sentencing system that had been all-but-universally
supported through most of the 1960s had few defenders left by the late
1970s. By then, a broad consensus in favor of change had formed among
the political left and right, law enforcement agencies and prisoners'
groups, and reformers and criminal justice systems officials. There was
rather less agreement on what should replace indeterminate sentencing.
Unlike previous waves of reform, the current movement is characterized
by a cacophony of voices disagreeing over the purposes and justification
for determinate sentences and over whose discretion should be curtailed.
The Role of Social Science Research in Sentencing Changes
Social science research tends to percolate into the policy arena and subtly
alter the ways policy makers and citizens think about issues. The results
of sentencing research have followed this pattern. Sentencing policy
changes have been influenced by social science research findings and
have themselves precipitated a substantial body of research (see Weiss,
1981~.
On the subject of rehabilitation, research pulling together the many
assessments of rehabilitation programs tended to confirm what some
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RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
observers had suspected about those programs and removed the basic
justifications for indeterminate sentencing policies. While research was
not the driving force behind the effort to reduce unwarranted disparity
in sentencing, the availability of data confirming the impression of wide-
spread disparities and suggesting the existence of discrimination by race
and socioeconomic status contributed to the quest for policies to limit
judicial discretion. Similarly, as the goals of sentencing shifted toward
deterrence and incapacitation, researchers sought to assess the magni-
tude of the deterrent and incapacitative effects of various sanctioning
policies on crime rates, as well as to assess the career criminal programs
designed to implement those goals.
The effect of research on the development of sentencing guidelines
has been direct and instrumental. The tradition of research on predictors
of parole success, which dates back to the 1920s, was stimulated in the
1960s by the availability of multivariate statistical techniques facilitating
better identification of the predictors of success. Corrections authorities
and researchers worked cooperatively to develop improved prediction
instruments to help parole authorities structure discretionary release
procedures. After successfully demonstrating the feasibility of the U.S.
Parole Commission's guidelines, researchers applied the same tech-
niques to modeling the factors associated with judicial sentencing de-
cisions. At a time when judicial decision making was under strong attack,
"descriptive" guidelines that would articulate and rationalize existing
sentencing policies had an appeal that led to their widespread dissem-
ination and adoption. More recently, social science modeling methods
and data on past sentencing practice were used by the Minnesota Sen-
tencing Guidelines Commission in developing "prescriptive" guidelines
that explicitly altered existing policies and practices.
In sum, research on sentencing has contributed to the general dis-
cussion of sentencing policy in several ways: it challenged prevailing
doctrines and assumptions; documented emerging beliefs and thereby
gave them added impetus; specified the nature and extent of bias in the
system; strengthened the case for change; provided a technology for
individual decision making; legitimated alternative rationales for pun-
ishment; encouraged the search for alternative policies while providing
ammunition for a critique of these options; and provided a conceptual
language for the policy discourse.
Several groups have had important roles in the diffusion of research
into the policy arena. Legal scholars, blue-ribbon commissions, and
crusading or popular authors have all drawn on social science research
to support policy recommendations. Federal agencies, particularly the
Law Enforcement Assistance Administration and the National Institute
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Introduction
67
of Justice (NIJ), have supported empirical research on sentencing. In
the late 1970s, NIJ made sentencing a priority area for research funding.
It has both funded and disseminated the results of some policy-relevant
research and evaluation studies, which include the development and
testing of various kinds of descriptive sentencing guidelines and assess-
ments of the impact of determinate sentencing laws.
SCOPE OF THIS REPORT
The policy and research developments in sentencing in the past decade;
the variety of proposals for changing sentencing practices that are pend-
ing in Congress, state legislatures, and administrative agencies; and the
newly emerging data on the impact of recently adopted policy innova-
tions suggested the need for an interim review of empirical findings
about what may be termed the sentencing reform movement. This report
is designed to meet that need. It reviews the findings and methodologies
of several bodies of sentencing research, points to the ways social science
research has informed policy making, and suggests future avenues of
inquiry and improved methods for research and for formulating sen-
tencing policy.
The historical, comparative, and descriptive review presented in this
chapter provides some perspective for what follows. Chapter 2 reviews
the methods and findings of empirical research on the determinants of
sentences, with particular attention to research on discrimination and
disparity. Chapter 3 considers the development and formulation of sen-
tencing policy. It reviews the variety of approaches taken to develop
systems of structured discretion for greater evenhandedness in sentenc-
ing decisions. Chapter 4 reviews the evaluation literature that has at-
tempted to determine the effects of various innovations on sentencing
outcomes and officials' behavior. Chapter 5 considers the relationship
between sentencing policies and prison populations. It examines the
implications of changes in sentencing practices on the size, conditions,
and management of prison populations, as well as the problems of pro-
jecting and controlling the size of those populations. Chapter 6 sets out
directions for future research.
It is important to make clear what is not included in this volume and
the reasons for these omissions. Although we recognize the importance
of the crime control effects of sentencing, we do not attempt to account
for the effects of sentencing on offender rehabilitation or on deterrence
and incapacitation; these subjects have recently been considered by
other National Research Council panels (Blumstein et al., 1978; Martin
et al., 1981; Sechrest et al., 1979~. Limitations of time and expertise
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RESEARCH ON SENTENCING: THE SEARCH FOR REFORM
and the absence of appropriate research led us to exclude several other
subjects from its broad conception of sentencing. For example, we did
not examine police arrest and charging practices, bail-setting and pretrial
release policies, or the role of public opinion in the establishment of
sentencing policies. Nor did we examine research or policy concerning
the sentencing of juveniles, even though young offenders are dispro-
portionately arrested for serious offenses against persons. We deter-
mined that despite the overlap of the juvenile and criminal justice sys-
tems, legal and organizational issues raised by an inquiry into the former
system would detract from a more intensive focus on the latter. Finally,
although we did devote some attention to programs that provide alter-
natives to incarceration, we have not surveyed those programs or ex-
haustively reviewed the relevant evaluation literature.
Representative terms from entire chapter:
parole boards
