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Determinants of Sentences ISSUES A diverse body of research exists on the determinants of sentences. This subject has been pursued from widely varying perspectives exploring the roles of normative premises and conceptions of justice, social struc- ture, organizations, conflict, and politics in influencing sentence out- comes. Underlying much of this research has been a fundamental con- cern with accounting for the diversity of sentence outcomes observed in courts. This has involved attempts to identify the variety of variables, and the interrelationships among those variables, that combine to in- fluence observed sentence outcomes. The increasing complexity of variables considered as factors influ- encing sentences has been accompanied by increasing methodological sophistication of the statistical analyses of sentencing. The earliest stud- ies often involved no more than simple bivariate contingency tables examining the relationship of a single variable to sentences (e.g., the number sentenced to prison for each race). More recent studies use assorted multivariate techniques, usually applied to linear models, that permit simultaneous statistical controls for the variety of factors thought to affect sentences. To date, the general state of knowledge about the factors influencing sentence outcomes remains largely fragmented, and there is no widely accepted theory on the determinants of sentences. Indeed, research on sentencing derives from a variety of different theoretical and disciplinary perspectives. 69

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70 RESEARCH ON SENTENCING THE SEARCH FOR REFORM THE RANGE OF VARIABLES CONSIDERED AS DETERMINANTS OF SENTENCES Research on sentencing has considered both the role of case attributes at the time of sentencing and the role of various aspects of the sentence decision-making process. The principal variable measures that are used in sentencing research are listed below. I. Case Attributes 1. Offense Attributes a. Offense Seriousness: crime type~s) charged or convicted; num- ber of charges; statutory maximum sentence; injury or threat of injury to victim; weapon use; value of property stolen or damaged; number of accomplices; role of offender as principal or accessory in offense; victim vulnerability; victim provoca- tion; nature of offender/victim relationship; intent b. Quality of Evidence: number of witnesses; cooperation of wit- nesses; existence of tangible evidence; strength of defendant's alibi 2. Offender Attributes a. Prior Criminal Record: number of arrests, convictions, or in- carcerations; types of offenses; recency of prior events; liberty status at time of offense release on bail, probation, or parole at time of offense b. Demographic Attributes: age; race; sex c. Socioeconomic Status: occupational prestige; income; educa- tion d. Social Stability: employment history; marital status; living ar- rangements; history of drug or alcohol abuse 3. Case-Processing Variables Charge reductions or dismissals; pretrial release statuson bail or detained; attorney typenone, court-appointed, or privately retained; method of case dispositionguilty plea, bench or jury trial; time of guilty plea; presentence recommendations by pro- bation officer, prosecutor, and defense counsel II. Attributes of Decision-Making Process 1. Structural Variables ("Where") Community attitudes toward crime and punishment; publicity surrounding this case or other similar cases; selection process of

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Determinants of Sentences 71 judgeselected or appointed; timing of next election of court officials; stability of courtroom workgroups; processing time; his- torical time period 2. Individual Decision-Maker Variables ("Who") Individual identifiers of key decision makers in each case; de- mographic attributes of key decision makers; general political/ ideological orientation of decision makersconservative or lib- eral; decision maker's philosophy of sentencing relative impor- tance placed on retributive, rehabilitative, deterrent, or incapa- citative goals; decision maker's "special hang-ups" (e.g., being especially harsh on drug offenses or weapons offenses) 3. Procedural Variables ("How") Local legal practices in criminal cases; role of judge in plea bar- gaining; plea bargaining over charges and/or sentencing options; statutory (e.g., criminal code) or administrative regulations gov- erning sentencing; richness of variables maintained for each case; accuracy of those variables (data sources and validity checks); accessibility of data (e.g., manual or machine-readable files) Variables on case attributes include attributes characterizing the of- fender and the offense, particularly variables that function as indicators of criminal culpability and the potential rehabilitative/deterrent/inca- pacitative effect of imprisoning the offender. These variables include various factors in offense seriousness and characteristics of the offender, such as prior criminal record, employment, age, and sex. Also among the case attributes at the time of sentencing are the outcomes of earlier decisions in case processing, like charging and bail decisions, mode of case disposition, and attorney type. The variables characterizing the sentence decision-making process relate to where the decision is made, who makes the decision, and how the decision is made. The "where" variables refer to the social context in which the decision is made (e.g., jurisdiction or region) and are meant to reflect differences in community attitudes toward crime and punish- ment and differences in system attributes (e.g., case load, backlogs, elected or appointed judges). The "who" variables refer to decision- maker attributes, particularly attributes of judges and perhaps of pro- bation officers, prosecutors, and defense counsel if they have contrib- uted to the sentence outcome. These variables might include indicators of primary cultural reference groups, political orientation, and philos- ophy of sentencing for individual decision makers. The "how" variables refer to procedural differences, such as whether or not there is a formal

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72 RESEARCH ON SENTENCING THE SEARCH FOR REFORM pretrial conference, whether that conference involves the judge, and whether the conference is limited to consideration of charges or also explicitly includes sentence options. DISCRIMINATION AND DISPARITY Exploration of the determinants of sentences is often framed in the context of important policy questions. Motivated by charges that sen- tencing is unfair, a major concern in sentencing research has been the extent of unwarranted variation in criminal sentences, particularly the validity of claims of widespread discrimination against black and poor defendants, and of large disparities in sentences. While widely used, the concepts of "discrimination" and "disparity" are rarely defined consis- tently. In this report they are distinguished in terms of the legitimacy of the criteria for determining sentences and the consistency with which those criteria are applied to similar cases. Discrimination exists when some case attribute that is objectionable (typically on moral or legal grounds) can be shown to be associated with sentence outcomes after all other relevant variables are adequately con- trolled.i Such an association is taken as presumptive evidence of the existence and extent of deliberate discrimination. Race is the clearest example of an illegitimate criterion; it is a "suspect classification" from a legal perspective and is widely viewed as inappropriate on moral grounds. The range of potentially illegitimate variables is viewed broadly in this report and may include case-processing variables, like bail status or type of attorney, in addition to the personal attributes that are conventionally cited as bases of discrimination (see list above). Disparity exists when "like cases" with respect to case attributes- regardless of their legitimacyare sentenced differently. For example, this might occur when judges place different weights on the various case attributes or use different attributes in their sentencing decisions. Dis- parity refers to the influence in sentence outcomes of factors that char- acterize the decision-making process. The most commonly cited ex- amples of disparity are differences among judges within the same jurisdiction or in different jurisdictions. ~ As a policy matter, concern with discrimination has been primarily concerned with deliberate behavior that is discriminatory in intent. Research on discrimination, however, rests on outcomes and cannot distinguish purposive discriminatory behavior from behavior that is discriminatory in effect. As a result, research findings of discrimination refer to findings of discriminatory outcomes that may or may not result from discriminatory intent.

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Determinants of Sentences 73 By these definitions discrimination and disparity are quite distinct behaviors (see Table 2-1~. If all decision makers behaved similarly, and used race or bail status as a factor in sentences, for example, it would be possible (though unlikely) to have discrimination without disparity. If all decison makers held shared values about legitimate case attributes, but placed different weights on them, the result would be disparity without discrimination. If some decision makers gave weight to race in their sentencing decisions and some did not (or gave race less weight), sentences would exhibit both disparity and discrimination. Evaluating the extent of discrimination or of unwarranted disparity requires important normative judgments about how much and what types of variation are unwarranted. Concern with discrimination focuses largely on the invidious role of certain personal attributes of the of- fender, particularly race and socioeconomic status, and the use of various case-processing variables. Concern for disparity, on the other hand, centers on the role of the organizational or structural context in which sentencing decisions are made and on the attributes of individual de- . . clslon ma hers. Discrimination A finding of discrimination first requires evaluation of the legitimacy of the potential factors associated with sentencing outcomes. This assess- ment is likely to be highly subjective, involving disagreement over the goals of sentencing and a balancing of those goals with whatever con- straints on sentencing may prevail in a particular society at a given time. Consider, for example, the ambiguous status of variables like age and employment. The use of such variables in sentencing is often explicitly justified by statute, as in special sentencing provisions for juvenile and young adult offenders and in revisions to the Federal Criminal Code recently proposed in the U.S. Senate (S. 1722, 1980~. Youthfulness can TABLE 2-1 Characterizing Sentence Outcomes in Terms of Disparity and Discrimination Legitimacy of Sentencing Criteria Application of Sentencing Criteria Consistent Inconsistent Legitimate No disparity and Disparity no discrimination Illegitimate Discrimination Disparity and discrimination

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74 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM be considered a mitigating factor based on the presumed diminished culpability of young offenders. Use of unemployment can be justified on grounds that it is an indicator of greater risk of further crime for offenders placed under supervision in the community. But arguments can also be offered that these variables are not legitimate sentencing criteria. It might be argued, for example, that the intensity of offending is high among the young and that they thus pose a serious threat of continued offending. On grounds of deterrence or incapacitation, then, youthfulness would not be a legitimate basis for being sentenced leni- ently (Boland and Wilson, 1978; Kennedy, 1978; Wolfgang, 1978~. Like- wise it might be argued that employment status is highly associated with race; to the extent that race is an illegitimate variable for sentencing, employment should be similarly suspect. For these reasons employment was recently removed as a factor in the Maryland statewide sentencing guidelines (Sentencing Guidelines Project, 19814. Similarly, because of considerations of legitimacy, education no longer appears in the federal parole guidelines (Hoffman et al., 1978~. The legitimacy of a variable for sentencing may also vary with the type of sentencing decision. Because of differences in the probabilities of recidivism, it could be argued that employment status is legitimate for determining whether to incarcerate or not, but that employment status should be immaterial to the length of a prison term. In this case, use of employment status would be nondiscriminatory (i.e., legitimate) in the prison/no prison decision, but discriminatory (i.e., illegitimate) in the decision on length of incarceration. Discrimination can also exist when an otherwise legitimate variable is given an illegitimately large weight in the sentencing decision. For example, it might be widely accepted that pleading guilty warrants a discount in sentence; the amount of that discount, however, would likely be unacceptable if type of plea were used to determine whether or not the prosecutor seeks the death penalty. Here discrimination occurs when the impact of an otherwise legitimate variable exceeds (or falls short of) some acceptable margin. Disparity When considering the extent of unwarranted disparity, it is useful to distinguish four types of disparity. These different forms of disparity cannot be evaluated equivalently; they may or may not be justified, and some may even be desirable.

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Determinants of Sentences 7s First, there may only be the appearance of disparity. This occurs when cases seem alike to an outside observer but differ materially in case attributes observed by the judge. For example, if the facts in two cases are identical but one defendant exhibits remorse and the other does not, they might receive different sentences. What appears to be disparity to a researcher working only from case records could be explained by the variables evident to the judge but not available in the records. Improved observations of independent variables like offender culpability, includ- ing such subtle considerations as remorse, may reduce the amount of this seeming disparity. Second, there may be planned disparity or disparity that is deliberately introduced as a matter of social policy, such as use of exemplary sen- tences (Morris, 19824. Consider, for example, several tax evaders who have been tried and convicted and who are thus all vulnerable to in- carceration. If it has previously been decided that it is sufficient to incarcerate only one of these offenders to achieve the desired general deterrent effect and thereby reduce the social costs associated with pun- ishment, singling out the one offender among many for such punishment would represent planned disparity. Planned disparity might also arise if "like" offenders are entitled only to an equal opportunity of receiving a particular sentence, which might be imposed through means of a lottery, for example. Under both these schemes, justice is served when all like offenders are vulnerable to some range of acceptable sentences by virtue of conviction. They are, however, not all sentenced equally harshly. Instead, particular sanctions are allocated with reference to other social ends, such as crime prevention through deterrence or in- capacitation and minimizing the social costs of punishment. A deliberate social policy of planned disparity would be warranted to the extent that the interests of justice can be responsibly limited to concern for an offender's vulnerability to a range of acceptable (i.e., not unjust) sen- tences. If, however, one's concept of justice requires equal treatment for like offenders, planned disparity in forms like exemplary sentences or equal opportunities to sanctions would be unwarranted. The third type of disparity involves interjurisdictional disparity such as that found between urban and rural courts in the same state. Such juris- dictional differences may reflect differences in community standards of offense seriousness or punitiveness, or it might reflect local organizational conditions like court overcrowding. Whether these jurisdictional differ- ences are warranted or not depends on the resolution of competing values, such as concern for evenhandedness or uniformity of standards versus the value of preserving local community control. In either case, however,

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76 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM jurisdictional differences arising from application of discnm~natory (ille- gitimate) sentencing criteria would remain unwarranted. The last type of disparity relates to individual judges.2 This type of disparity can arise from fundamental philosophical differences regarding the goals of sentences, which may not be shared universally, or, even if they are, cannot be applied consistently. These differences may reflect differences in the experiences, training, and background of individual judges (or of court personnel making sentence recommendations to the judge) and would show themselves in use of different sentencing criteria or the application of different weights to the various criteria. The in- terjudge or intrajudge disparity that results may or may not be war- ranted. On one side, it could be argued that some variation in sentences is to be expected and even tolerated in order to accommodate reasonable differences of opinion in the application of legitimate sentencing stan- dards. As long as vulnerability to a particular judicial perspective does not vary systematically with defendant or case attributes (e.g., defen- dants charged with offenses involving gun use are no more likely to appear before judges favoring strong gun control than are any other defendants), the differences among judges in sentencing similar cases may be regarded as an acceptable or tolerable reflection of variation in the legitimate standards held within a community and so be warranted. (From this perspective, however, differences between jurisdictions or judges that arise from use of discriminatory (illegitimate) sentencing criteria by some judges or jurisdictions would remain unwarranted.) Alternatively, it might be argued that the application of different legal standards to identical defendants is inconsistent with the rule of law. Normally, the U.S. legal system operates through appellate review and legislative change to eliminate conflicting legal rules, particularly when individual liberty is at issue, and does not tolerate the degree of incon- sistency that may today characterize the sentencing behavior of different judges. If sentencing is to be similarly constrained by legal rules (as some proponents of reform urge), philosophical differences among judges would have to be significantly reduced or eliminated, perhaps through some compromise among judges or through the selection of a preferred sentencing rule by some democratically accountable body. Under this perspective, convergence of sentencing standards is preferable to con- 2 While judges are the decision makers typically identified in discussions of disparity, disparity in sentence outcomes can also arise from differences among prosecutors or other criminal justice decision makers.

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Determinants of Sentences 77 tinned toleration of disparity. Some proponents of change also argue that significant variations among judges based on different philosophies are also unwarranted, because many operational consequences of that variation like "judge shopping" by both defense and prosecuting at- torneys, and perceptions of arbitrariness in sentences~ontribute to a sense of impropriety and injustice that undermines confidence in the legitimacy of the courts and the entire criminal justice system. ALTERNATE METHODOLOGICAL APPROACHES TO ANALYSES OF SENTENCING In this chapter we focus primarily on statistical studies of sentencing that have used quantitative data on case attributes and decision-process variables; in Volume II, Garber et al. and Klepper et al. discuss the possibility of developing more sophisticated formal models of the sen- tencing process as a basis for improved statistical analyses. However, much work on criminal sentencing has used quite different research methods. Among the most common have been observation of the behavior of criminal court participants and interviews with them. Some of this work has used the paradigm of anthropological study of a new culture; some has used concepts from organization theory as the basis for data gathering and analysis; and some of this work has been primarily descriptive. Another body of research uses experimental simulations in which subjects are asked to "sentence" experimental cases. A major concern in this experimental research is the process of attribution of factors, like offender culpability and victim provocation, by decision makers. While the processes involved in forming these judgments are not fully under- stood, several factors have been suggested as potentially relevant. These include the individual's ability to carry out the act, the effort expended, the degree of planning involved, the level of psychological functioning, and the type of motivation.3 Experimental manipulation is particularly well suited for exploring the impact of these subtle and often unmeasured factors. Our focus on one research approach is due to the large number of 3 Research examining elements of attribution in the context of sentencing includes: Harvey and Engle (1978), Hogarth (1971), Hood (1972), Joseph et al. (1976), Kapardis and Farrington (1982), Monahan and Hood (1976), Sebba (1980), Thomas (1979), Walster (1966), and Wheeler et al. (1981~. More general treatments of attribution theory are available in Heider (1958) and Weiner (1974~.

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78 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM studies and the technical questions that they raise; it should not be taken to imply that this approach is the only one of value. Indeed, we believe that statistical analysis of quantitative data about sentencing or attempts to model the process should include consideration of the particular court- house cultures in which the behavior is embedded. Such consideration requires gathering information from participants themselves. In addi- tion, the careful controls possible in experimental research provide the opportunity for isolating the potentially subtle effects of variables, like defendant demeanor, that are difficult if not impossible to measure in aggregate statistical analyses. Studies of criminal courts have repeatedly demonstrated that juris- dictions vary substantially in terms of norms of appropriate sentencing policy (e.g., levels of harshness) as well as in standard operating pro- cedures (e.g., use of trial versus guilty plea and the implications of selection of one mode of disposition for ultimate sentence outcome). These norms are crucial to explanations of why different sentence out- comes occur but are typically unmeasured by generally available statis- tical data. In some jurisdictions, for example, bench trials are the equiv- alent of "slow pleas" and are appropriately coded as guilty pleas rather than trials; in others, they are quite real trials. Thus, a decision to treat bench trials as trials or as guilty pleas for purposes of statistical analysis cannot sensibly be made without knowledge of the operating norm within the particular jurisdiction. Furthermore, the potential differences in processing cases across jurisdictions, and sometimes even between courts within a jurisdiction, raise important questions about the appropriate- ness of cross-sectional analyses that assume a single homogeneous pro- cess in different settings. Observation and Interviews In our discussion of the use of variables measuring crime seriousness and prior record, we note that problems of measurement error present a difficult obstacle. Interviews with court personnel may be useful in identifying the key dimensions of case seriousness (degree of harm ac- tually done? risk of injury? offender culpability? victim provocation?) and the important aspects of prior record (arrests? convictions? jail or prison terms? recency versus severity of prior arrests or sentences?), as well as in alerting a researcher to differences among jurisdictions that may be obscured in multijurisdictional comparisons that use only one set of measures. Formal modeling of justice system operations can be considerably

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Determinants of Sentences 79 improved by field work attempting to assess accurately the actual goals and behavior of participants. Do prosecutors attempt to maximize con- viction rates or sentence severity? Interviews are essential to develop sensible models. By the same token, models that use realistically dif- ferent utility functions for different types of attorneys (e.g., public de- fenders versus marginal private practitioners versus well-established criminal lawyers) could be developed on the basis of interviewing par- ticipants. Research based on observations or interviews faces real issues of the validity and reliability of often qualitative and subjective judgments made by investigators. Moreover, whether using quantitative or quali- tative techniques, research from a single jurisdiction must confront issues of generalizability. Experiments Experimental manipulation of a small number of variables permits iso- lating the independent contribution of variables that covary or interact with other independent variables in natural settings (e.g., age and crim- inal record). It also provides an opportunity to explore the impact of the full range of variation in variables whose effect in natural settings is difficult to measure because of their limited variation in those settings (e.g., sex or conviction type guilty plea or trial). Small effects of some variables that may be obscured by the much larger effects of other variables in aggregate statistical analyses can also be highlighted in ex- periments. This is particularly important in considerations of variables that, despite their small effect in aggregate data, are nevertheless im- portant for conceptual or policy reasons (e.g., racial discrimination). Experimental studies face challenges to the external validity of results arising from the artificial and often contrived character of the experi- mental situation. These studies, for example, often use inappropriate decision makers, drawing from jury pools or college students who are markedly different from and lack the experience of typical sentencers. Recognizing the problems of having inexperienced respondents assign sentences, the studies often ask respondents to assign levels of respon- sibility or blameworthiness, factors that no doubt affect sentences but are not the sole determinants. Furthermore, the use of often limited case information leaves considerable room for respondent interpretation and imputation of relevant but missing information, which jeopardizes the validity of experimental controls. Experimental research is also vul-

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Determinants of Sentences 115 tical analyses of case records in a wide variety of jurisdictions. Several statistical studies report substantial sentence differences by plea when other factors like record and charge are controlled (Brereton and Cas- per, 1982; Nardulli, 1978; Rhodes and Conly, 1981; Rich et al., 1981; Uhlman and Walker, 1980~. One study reports sentence differences by plea in selected courtrooms but no aggregate differences in three juris- dictions (Eisenstein and Jacob, 1977), while another reports sentence differences for some crime types but not others (Rhodes, 19784. The statistical evidence on what is called the guilty-plea discount is subject to possible biases arising from measurement error and sample selection. These potential biases are particularly troubling because they would result in overestimates of the effect of the discount. Several studies have found an association between offense seriousness and mode of disposition, with more serious cases more likely to go to trial (Eisenstein and Jacob, 1977; Hagan, 1975; Klepper et al., Volume II: Table 14. This might occur because of a prosecutor's decreased will- ingness to accept guilty pleas to reduced charges in serious cases and a corresponding decreased willingness by a defendant to plead guilty when the risk of severe sanction is high. To the extent that offense seriousness is poorly measured, independent measurement error would contribute to underestimates of the effect of seriousness and overestimates of the effect of trial on severe sentences. This measurement error bias will be large relative to the true effect of guilty pleas when: offense seriousness in sentence plays a large role; the role of disposition type in sentences is small; the error in measuring seriousness is large; or the correlation between seriousness and dispo- sition type is large. Thus, measurement error bias from an association between disposition type and offense seriousness could lead to estimates of an effect of disposition type when in fact there is none. However, the interview data from court participants suggest that this statistical bias is likely to be small relative to the true effect. To begin with, the views of participants are informed by direct knowledge of the relative influence of dimensions of seriousness that may be unobservable to the researcher. Moreover, as participants in the plea negotiation process, judges, prosecutors, and defense counsel are privy to the offers made to defendants who go to trial; they thus have firsthand knowledge of the size of the guilty-plea discount reflected in the actual differences found between offers made and sentences received after trial for the same case. Sample selection bias also may be present through differences in con- viction rates, and hence different likelihoods of sentence, for trial and guilty-plea cases. Offenders who plead guilty are certain to be convicted

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116 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM and thus selected for sentencing, while some portion of trial cases do not result in convictions. If the strength of evidence also affects con- viction rates independently of mode of disposition, stronger cases are more likely to end in a conviction. Hence it is possible that cases with the strongest evidence and those with the weakest evidence are more likely to go to trial. For the strongest cases, the prosecutor might not be willing to bargain down and accept a guilty plea to reduced charges, and there would be little advantage to the defendant to plead guilty. For the weakest cases, the defendant would have reason to hope for acquittal or dismissal in court. Among those cases going to trial, the cases with the strongest evidence would be more likely to end in con- viction. On the average, then, cases that result in convictions through trial would be stronger than cases resolved by a guilty plea. Strength (or quality) of evidence may also contribute to more severe sentences, perhaps as an indicator of greater defendant culpability for the offense. In this event, controlling for other factors, the stronger evidence against offenders convicted in trials would lead to more severe sentences for those offenders than for offenders who plead guilty. However, to the extent that strength of evidence is poorly measured and thus poorly controlled in an analysis, any contribution of evidence to more severe sentences for those convicted in trials may be misinterpreted as an effect of disposition type. In this event the observed sentence differential be- tween pleas and trials might be explained in terms of differences in the strength of evidence. The magnitude of bias due to sample selection depends on the relative strength of the relationship between case quality and sentence severity: the smaller the role of case quality in sentence severity, the smaller the potential bias. While playing a major role in case dismissals and con- victions, case quality is likely to be at most a minor factor in sentences. Certainly there is little empirical evidence supporting a claim of any major effect on sentences. Overestimates of the guilty-plea discount from sample selection are thus not likely to be large. The preponderance of evidence suggests that mode of disposition probably does exercise an independent effect on sentence outcomes. It is a common finding that defendants held in pretrial detention receive substantially harsher sentences than those who are free awaiting trial (Clarke and Koch, 1976; Foote et al., 1954; Goldkamp, 1979; Greenwood et al., 1973; Landes, 1974; Lizotte, 1978; Morse and Beattie, 1932; Rankin, 1964; Spohn et al., 1982~. This finding persists after controlling for factors like offense seriousness and prior record. A variety of processes have been suggested as factors in the observed

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Determinants of Sentences 117 relationship between pretrial detention and harsher sentences. One pos- sibility is that detained defendants are less able to assist in the prepa- ration of their cases, both for trial and for subsequent sentence hearings. Some defendants may also lose their jobs while detained; the loss of income may affect their ability to retain private counsel, and their un- employment may be held against them in sentencing decisions. The conditions of pretrial detention may also induce detained defendants to plead guilty early and settle for less favorable outcomes. Those defen- dants who are free awaiting trial, on the other hand, are in a better position to delay disposition of their cases, possibly resulting in better offers from the prosecutor and decay in the strength of the prosecution case as witnesses tire of court appearances and memories fade. Finally, more severe sentences may result from a labeling process in which de- tained defendants are presumed to be more serious or dangerous (other- wise they would not have been detained) and hence deserving of harsher penalties. It is also possible that the relationship between pretrial detention and harsher sentences is at least partially spurious, resulting from the role of common determinants of pretrial detention and sentence after con- viction. Bail amount and subsequent release on bail, for example, have been found to be associated with the key determinants of sentences offense seriousness and prior record (Lances, 1974; Lizotte, 1978~. The more serious the offense and the worse the prior record, the more likely it is that the bail amount is set high and the defendant is detained. While most studies attempt to control for any spurious role of pretrial detention by including offense seriousness and prior record in their analyses, these variables are often poorly measured. Independent measurement error in either of these important variables will yield underestimates of the contribution of seriousness or prior record and overestimates of the contribution of pretrial detention to severe sentences. With systematic measurement errors, on the other hand, the biases might be in the opposite direction (see Table 2~. Sample selection biases may also distort the estimated effects of pre- trial detention. The selection stage presumed to be most affected by pretrial detention is conviction, with detained defendants being more likely to be convicted. Selection biases arise when some poorly measured variable, like offense seriousness or prior record, affects both selection (in this case through conviction) and sentence severity. In the event that detained defendants are more likely to be convicted, regardless of se- riousness or record, those defendants who are not detained but are convicted would be likely to have more serious offenses or worse rec-

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118 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM ords. Such a relationship would contribute to more severe sentences for defendants who are not detained, leading to underestimates of the impact of detention on sentence outcomes. The association of pretrial detention with poorly measured variables like offense seriousness and prior record raises the possibility of biases in either direction in the estimated effect of pretrial detention on more severe sentence outcomes. While there appear to be both empirical evidence and theoretical reasons to support the view that pretrial de- tention has an independent influence on sentences, further research is needed to establish the existence and magnitude of such a relationship. Anecdotal evidence suggests that defendants represented by public defenders or appointed counsel receive harsher sentences than those represented by privately retained counsel (Alschuler, 1975; Blumberg, 1964; Casper, 1972~. This difference has been attributed to heavier work loads or less criminal experience for public or appointed attorneys, which contributes to less adequate defense and increased pressure to dispose of cases through plea negotiations. The spirit of cooperation and com- promise that characterizes courthouse regulars is another factor that might jeopardize defendants' positions. At the same time, many pri- vately retained counsel represent large numbers of nonaffluent clients and depend upon rapid turnover of cases to generate adequate incomes from small individual case fees. Thus, their case loads and practice styles may not be very different from those of public attorneys. Moreover, the expertise and courthouse familiarity of public defenders may work to the advantage of their clients. It should be noted that there are also likely to be important jurisdictional differences in the quality of public defense counsel. Statistical analyses of the effects of attorney type have generally failed to control adequately for other determinants of sentences and are thus vulnerable to biases arising from measurement error and sample selec- tion. Furthermore, the studies result in mixed conclusions, with some studies supporting the proposition of an advantage for the clients of privately retained counsel (Bin" and Rosenfeld, 1970; Katz et al., 1971; Spohn et al., 1982) and others contradicting it (Beattie, 1935; Eisenstein and Jacob, 1977; Oaks and Lehman, 1968; Rhodes and Conly, 1981; Smith, 1970; Taylor et al., 1972~. The evidence to date does not support the conclusion that attorney type is independently related to sentence. DISPARITY In studying the determinants of sentences, it is not sufficient to consider only factors relating to the offense, the offender, and case-processing

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Determinants of Sentences 119 variables. Although some statistical studies have included as many as 30 explanatory variables relating to case attributes, two-thirds or more of variation in sentence outcomes remains unexplained. Many research- ers have looked to elements of the decision-making process, especially differences among judges, for the sources of that remaining variation. Attempts to measure variation in judicial sentencing are not a 1970s phenomenon. As early as 1895 researchers tried to document the extent of interjudge disparity or the differences in sentencing attributable only to the identity of the judge (Francis Galton, Nature, 1895, cited in Banks, 1964~. Early approaches were relatively straightforward; they generally compared the rates of particular sentences given by different judges. Everson (1919) found that the frequency of suspended sentences given for public intoxication by 42 magistrates in New York City varied from less than 1 percent to 83 percent. Gaudet et al. (1933) studied the sentences imposed by six New Jersey judges and showed that the rates of incarceration for their cases varied from 34 percent of all individuals sentenced by the most lenient judge to 58 percent of those sentenced by the most severe judge. In order to conclude from these studies that judge differences ac- counted for the differences in sentencing patterns, it is necessary to assume that the samples of cases sentenced by each judge were com- parable. Even if initial case assignment was randoma practice unlikely in most courts due to management considerations and simple careless- nesscomparability of samples at the time of sentencing would probably not result. Since the judge who initially receives a case may affect its disposition by trial or guilty plea, the mix of cases ultimately available for sentencing by a judge may be a function of the judge's reputation and behavior. In order to correct for differences in the cases sentenced by different judges, some researchers have used statistical controls. The crudest of these is the matching strategy that identifies subgroups of cases sharing similar characteristics (e.g., offense, prior record) and compares the sentencing patterns of different judges for each subgroup of cases (e.g., Green, 19614. The difficulty with this approach is that a researcher can never be certain that the subgroups identified for each judge consist of strictly comparable cases; it is always possible that the cases of two judges are different on some unmeasured variable or set of variables that is crucial for the sentencing outcome. More elaborate versions of the same type of approach use regression and related statistical techniques (e.g., PROBIT) to control for case differences across judges. Variables identifying or describing judges are then introduced in the model as independent variables in addition to case attributes, and the researcher then tests to see whether a judge

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120 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM variable or set of variables can explain any additional variation in sen- tencing. Judge variables may be in the form of individual judge identity (e.g., Rhodes, 1977; Shane-Dubow et al., 1979) or attitudinal/person- ality groupings (e.g., Clarke and Koch, 1977, who classified Alaskan judges as "strict" or "lenient"; Hogarth, 1971, who measured Canadian magistrates for cognitive complexity as well as attitudes toward punish- ment). Most of these studies have shown a substantial impact of judge variables. A few have shown no judge effect (e.g., Rhodes, 1977~. One reason for the lack of judge effects in some studies of sentence outcomes is that such studies include case characteristics that may anticipate or reflect judicial reaction. Bail status, for example, was a predictor of sentence in Rhodes's study. Yet, as Rhodes mentions, the bail decision may reflect an earlier judicial decision on probable sentence. In this event the role of judge effects in both sentence outcomes and bail de- cisions must be investigated together. A more general problem with using statistical controls to create com- parable subgroups of cases is that, whenever the models fail to measure some variables adequately or omit them altogether, the ability of these models to assess the effects of judicial variables will be impaired. In general, the statistical controls cannot be assumed to have adequately controlled for case differences in evaluations of the separate impact of judicial identity. To avoid the problems of lack of comparability, a number of re- searchers have submitted identical cases to several judges, asking each judge to indicate a recommended sentence for the case. The "cases" have varied in detail from a list of eight case characteristicsoffense, age, record, defendant's role in the offense, plea, injury to victim, weapon, dollar amount (Forst and Wellford, 1981) through presentence reports (Partridge and Eldridge, 1974) to excerpts from trial record, testimony, and a detailed description of the offender (Hood, 1972; Kapardis and Farrington, 1982~. In each study, the results have shown substantial differences in the sentencing recommendations of different judges. Forst and Wellford (1981) found that for 9 of their 16 scenarios, some judges recommended sentences of at least 20 years, while other judges rec- ommended against imprisonment; for 2 of the cases half of the judges recommended prison and half did not. The judges in this study were all federal court judges and came from different districts. The results are similar, however, in studies comparing judges in a single district. In a study of the federal Second Circuit (Partridge and Eldridge, 1974), judges in one district disagreed on whether to incarcerate in 13 of 20 cases; in another district they disagreed in 15 of 20 cases. While the sentencing experiments described here are able to have

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Determinants of Sentences 121 multiple judges "sentence" identical cases, it is possible that the "sen- tences" in the experiment would not reflect sentences given when the decision had real consequences for a flesh-and-blood offender. While the effect of personal interaction between judge and offender is probably very limited (the defendant usually pleads guilty, and the judge learns about the defendant through the presentence report and from statements by opposing counsel), the absence of real consequences in experiments and the use of often limited case information that leaves considerable room for judicial interpretation or imputation of relevant but missing information are potentially more troublesome. One study that reduced these problems took advantage of a naturally occurring collegial sentencing structure the sentencing council (Dia- mond and Zeisel, 1975~. Federal judges in several courts meet regularly to discuss their sentencing decisions. Before each meeting every council member receives presentence reports on the offenders to be discussed at the meeting. Before the council convenes, each judge privately re- cords a favored sentence for each case. These recommendations are discussed at the council meeting and are expected to influence the de- cision of the sentencing judge, who retains full power to determine the actual sentence. Thus, unlike a decision in sentencing experiments, a sentencing council recommendation has real consequences for the of- fender through its potential influence on the sentencing judge. The information supplied to the council judges also closely approximates the information available to the sentencing judge. The results of this study indicate substantial disparity in sentence recommendations: in 30 per- cent of the cases, a random sample of three judges disagreed about whether to incarcerate the offender. The figure is almost identical for sentencing councils in Chicago and in New York. The sentencing council study generally controls for case attributes and defendant vulnerability. Hence, the only remaining problem is the extent to which the measure of disparity is influenced by interpersonal processes of the council itself, so that the recommended sentences do not com- pletely reflect the sentences of individual judges sitting alone. Judicial disparity may be somewhat understated in council cases if the prospect of formal review of individual judicial decisions in council deliberations leads judges to be more circumspect in their sentence recommendations. It is also possible that the prospect of a moderating effect of council deliberations may lead individual judges to initially recommend sen- tences that are more extreme than they would actually desire as a result. This situation would exaggerate or overstate the extent of judicial dis- parity.

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122 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM In considering potential sources of systematic judicial variation, it is generally acknowledged that pursuing different goals in sentencing can often result in very different sentences in the same case. For example, general deterrence may suggest a prison sentence for the first-offender tax evader, while the goals of specific deterrence and rehabilitation would argue for a fine or probation. To the extent that different judges emphasize different goals, as found in Forst and Wellford (1981), for example, one would expect their sentences to differ. Aside from general judicial predilections, the particular goals of sen- tencing deemed appropriate in any case may be influenced by a variety of cues reflecting the degree of offender culpability (or responsibility for the offense) and the stability or enduring quality of offending be- havior for the defendant. The extent of blameworthiness of the offender affects judgments of the punishment deserved, and increases in blame- worthiness may well evoke sentences based on goals of retribution. To the extent that an offender is judged to be fully responsible for his or her actions and the offending is viewed as a stable attribute of the offender, the likelihood of incapacitative sentences increases. Sentences for the purposes of rehabilitation or deterrence are more likely when offending is perceived to be a temporary attribute of the offender. This perception increases the potential that a sentence can actually affect future offending behavior, both for the sanctioned offender and for others who witness the sanction. Various elements have been suggested as influencing attributions of offender culpability and stability. The level of responsibility for an of- fense varies with the offender's motivation and ability to commit the offense. Motivational factors like victim provocation (Harvey and Engle, 1978) and the extent of planning or forethought involved (Harvey and Engle, 1978; Joseph et al., 1976) have been found to affect attributions of culpability, as have ability factors like level of mental or psychological functioning (Monahan and Hood, 1976) and abuses of authority or po- sition (Diamond and Herhold, 1981; Thomas, 1979~. Another factor in culpability is the level of harm done (Hood, 1972; Kapardis and Far- rington, 1982; Walster, 1966; Wheeler et al., 1981~. There is little em- pirical work on cues affecting judgments of stability; some potentially important factors might include remorse, cooperation with authorities, and indicators of more general social stability, like family support and employment opportunities. Few of these variables effort, planning, level of psychological func- tioning, provocation, harm, and stability cues- have been directly mea- sured in studies of judicial sentencing. To the extent that they influence

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Determinants of Sentences 123 judges differently in different cases, they might well account for inter- judge and intrajudge disparity. It is also possible that the origins of judicial disparity may have little to do with judges. Several studies have identified the importance of the recommendations by the prosecutor or probation officers in determining sentence outcomes (Carter and Wilkins, 1967; Hagan, 1975, 1977; Ha- gan et al., 1979; Myers, 1979; Unnever et al., 19804. Variations in sentences among judges and even for the same judge thus may arise from variations in the individual prosecutor or probation officer making sentence recommendations in different cases. The evidence for sentence disparity is extensive, but data on the sources of that disparity are scarce. One plausible direction for research is to examine the sentencing goals of different judges, how the goals are formed, and where they lead. If sentences are in part a product of the goals they are meant to achieve, the absence of consensus on ap- propriate sentencing goals may be a major factor contributing to inter- judge disparity. The extent to which disparity is unwarranted remains an important policy question whose resolution depends on the weight given to com- peting values. On the one hand, there is concern that sentences result from the evenhanded application of general sentencing principles. On the other hand, there is a recognition that there are often legitimate social, cultural, and philosophical differences over what those principles should be, as reflected, for example, in conflicting interpretations of the goals of sentencing. Resolution of this policy issue would benefit from continued efforts to clarify and articulate the principles that currently do and those that ought to underlie sentence decisions. Such work would help to illuminate the dimensions of the choices that must be made. CONCLUSION Evidence on the determinants of sentences is beginning to emerge from several research approaches. The available research provides some gen- eral information on which factors may be important and which may not. Estimates of the magnitude of these effects are considerably less precise. One limitation of existing research is inadequate controls for poten- tially important determinants of sentences arising from omitted or poorly measured variables. This limitation contributes to statistical biases of often unknown direction and magnitude in the estimated effects. Sentence decisions are also typically analyzed using simple linear models involving weighted sums of individual variables to characterize the re-

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124 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM lationship between determinants and sentence outcomes. These analyses often fail to address even simple forms of interactions among explanatory variables. Instead, all variables are considered simultaneously and al- ways enter the decision with the same impact. However, sentence de- cisions may be more complex and may require richer characterizations of the decision process. For example, it may be that sentencing decisions are a multistage process that first involves an attempt by the decision maker to allocate the case to one of a small number of case patterns, where each case pattern is subject to a different sentencing rule. One pattern of cases, for example, may be viewed as particularly well suited to rehabilitation, and the sentences imposed would be intended to en- hance rehabilitation opportunities. Another pattern of cases may elicit an incapacitative response, while still another pattern may be distin- guished for its potential general deterrent effects and be sentenced ac- cordingly. The sentencing rules characterizing sentence decisions within each case pattern may vary in terms of the variables included and the weights given these variables and may invoke interactions among variables and hierarchical treatments of the variables. In a hierarchical sentencing rule, the sentence decision follows a branching process in which the weight given some factors depends on the presence or absence of other factors. For example, in a particularly heinous crime, the viciousness of the crime alone may be sufficient to lead to incarceration. In less heinous crimes, a variety of factors, like the defendant's prior criminal record and general community ties, may enter the decision to imprison or not. There may also be some cases that do not fit any of the identified case patterns. Such cases may be sentenced on the basis of the partic- ularly unique features of the case and so be difficult to characterize by a general rule. This characterization of sentencing decisions is quite different from existing analyses in which the same simple linear model is applied uni- formly to all cases. The alternate formulation involves first a process of pattern recognition and then the application of potentially complex de- cision rules. Specifying the actual forms of alternate models of sentencing decisions to be tried will probably benefit from the insights derived from interviews of participants and extensive observations of the process. It is also important to remember that sentencing decisions are not made in isolation; they occur in the context of a variety of earlier de- cisions that potentially influence sentence outcomes. As a result, when attempting to sort out the determinants of sentences, one cannot focus only on the outcomes of the convicted cases that appear before a judge for sentencing. Sentencing decisions must be viewed more broadly to

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Determinants of Sentences 125 reflect the impact of earlier decisions that result in convictions in some cases, thus making offenders vulnerable to sentencing. This larger sys- tem approach to the process will also help to address the methodological problems arising from selection, as well as an indirect basis for resolving the measurement problems in key concepts like seriousness, prior re- cord, and case quality.24 24 See Garber et al. (Volume II), Klepper et al. (Volume II), and Berk and Ray (1982) for a more detailed treatment of the ways in which explicit consideration of the broader case-processing system can help to alleviate the biases arising from measurement error and sample selection.