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VOLUME I Research on Sentencing: The Search for Reform Alfred Blumstein, Jacqueline Cohen, Susan E. Martin and Michael H. Tonry, Editors Panel on Sentencing Research Committee on Research on Law Enforcement and the Administration of Justice Commission on Behavioral and Social Sciences and Education National Research Council NATIONAL ACADEMY PRESS Washington, D.C. 1983

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NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. The report has been reviewed by a group other than the authors according to procedures approved by a Report Review Committee consisting of members of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The National Research Council was established by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and of advising the federal government. The Council operates in accordance with general policies determined by the Academy under the au- thority of its congressional charter of 1863, which establishes the Academy as a private, nonprofit, self-governing membership corporation. The Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in the conduct of their services to the government, the public, and the scientific and engineering communities. It is administered jointly by both Academies and the Institute of Medicine. The National Academy of Engineering and the Institute of Medicine were established in 1964 and 1970, respectively, under the charter of the National Academy of Sciences. Library of Congress Cataloging in Publication Data Main entry under title: Research on sentencing. Bibliography: v. 1, p. 1. Sentences (Criminal procedure) United States. 2. Sentences (Criminal procedure) United States- States. I. Blumstein, Alfred. II. National Research Council (U.S.~. Panel on Sentencing Research. KF9685.R38 1983 345.73'0772 83-4048 347.305772 International Standard Book Number 0-309-03347-0 Available from NATIONAL ACADEMY PRESS 2101 Constitution Avenue, NW Washington, DC 20418 Printed in the United States of America

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PANEL ON SENTENCING RESEARCH ALFRED BLUMSTEIN (Chair), School of Urban and Public Affairs, Carnegie-Mellon University SYLVIA BACON, Superior Court of the District of Columbia RICHARD A. BERK, Department of Sociology, University of California, Santa Barbara JONATHAN D. CASPER, Department of Political Science, University of Illinois, Urbana JOHN C. COFFEE, JR., School of Law, Columbia University SHARI S. DIAMOND, Department of Psychology, University of Illinois, Chicago Circle FRANKLIN M. FISHER, Department of Economics, Massachusetts In- stitute of Technology DON M. GOTTFREDSON, School of Criminal Justice, Rutgers Univer- sity JOSEPH B. KADANE, Department of Statistics, Carnegie-Mellon Uni- versity NORVAL MORRIS, Law School, University of Chicago DAVID J. ROTHMAN, Department of History, Columbia University RUTH L. RUSHEN, Department of Corrections, Sacramento, California JAMES Q. WILSON, Department of Government, Harvard University SUSAN E. MARTIN, Study Director DIANE L. GOLDMAN, Administrative Secretary JACQUELINE COHEN, Consultant, School of Urban and Public Affairs, Carnegie-Mellon University MICHAEL H. TONRY, Consultant, School of Law, University of Mary- land ~

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COMMITTEE ON RESEARCH ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE ALFRED BLUMSTEIN (Chair), School of Urban and Public Affairs, Carnegie-Mellon University LEE P. BROWN, Chief of Police, Houston, Texas JOSEPH B. KADANE, Department of Statistics, Carnegie-Mellon Uni- versity SAMUEL KRISLOV, Department of Political Science and Law School, University of Minnesota RICHARD LEMPERT, School of Law, Cornell University NORVAL MORRIS, Law School, University of Chicago RICHARD D. SCHWARTZ, College of Law, Syracuse University LEE B. SECHREST, Center for Research in the Utilization of Social Knowledge, Institute for Social Research, University of Michigan JUNE STARR, Department of Anthropology, State University of New York, Stony Brook JACK B. WEINSTEIN, U.S. District Court, Brooklyn, New York JAMES Q. WILSON, Department of Government, Harvard University ANN WINCE, Department of Economics, University of North Carolina MARVIN E. WOLFGANG, Department of Criminology, University of Pennsylvania iv

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Contents PREFACE SUMMARY Introduction 1 Determinants of Sentences 7 Structuring Sentencing Decisions 21 Assessment of the Effects of New Sentencing Policies Sentencing Policies and Prison Populations 32 Research Agenda 36 INTRODUCTION: SENTENCING PRACTICES AND THE SENTENCING REFORM MOVEMENT The Processes That Constitute Sentencing 41 The Goals of Criminal Sanctions 47 American Sentencing in Comparative and Historical Perspective 52 Scope of This Report 67 X1 1 39 2 DETERMINANTS OF SENTENCES Issues 69 Findings 80 Conclusion 123 v 69

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vi 3 STRUCTURING SENTENCING DECISIONS The Variety of Innovations 126 Developing Guidelines: Modeling and Data Issues 143 Developing Guidelines: Policy and Technical Choices 151 The Processes of Developing, Implementing, and Enforcing New Sentencing Standards 174 4 SENTENCING REFORMS AND THEIR EFFECTS Compliance With Sentencing Reforms 186 Adaptive Responses to Sentencing Reforms 196 The Use and Severity of Sanctions 203 Conclusions 219 5 SENTENCING POLICIES AND THEIR IMPACT ON PRISON POPULATIONS Changes in Prison Populations and Their Implications 226 Projection of Prison Populations: Need, Technology, and Uses 238 Alternative Strategies for Handling Increasing Prison Populations 246 6 RESEARCH AGENDA FOR THE STUDY OF SENTENCING General Research Strategy 259 Determinants of Sentences 264 Structuring Sentencing Decisions 274 Effects of Sentencing Reforms 278 Sentencing Policy and Prisons 280 REFERENCES APPENDIX A: Participants, Conference on Sentencing Research Contents 126 184 225 259 283 309 APPENDIX B: Biographical Sketches, Panel Members and Staff 311

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Tables and Figures TABLES Sentence Outcomes Characterized in Terms of Disparity and Discrimination 9 2-1 Characterizing Sentence Outcomes in Terms of Disparity and Discrimination 73 2-2 Distribution of Total U.S. Adult Arrests (Over 18) by Race and Crime Type in 1979 90 2-3 Distribution of Studies With Findings on Racial Discrimination by Control for Offense Seriousness and Prior Record and by Time Period Considered 94 2-4 Direction of Biases When Incorrectly and Correctly Measured Variables Are Correlated: The Case of Offense Seriousness (Incorrectly Measured) and Race (Correctly Measured) 98 2-5 Comparison of Black Arrest Rates With White Arrest Rates (Arrests per Population) by Age and Crime Type in 1970 for U.S. Cities 100 2-6 Disposition of Felony Arrests 102 2-7 Nature of Sample Selection Biases in Estimates of the Deter- minants of Sentences 104 3-1 Minnesota Sentencing Grid: Sentencing by Severity of Offense and Criminal History 137 3-2 California Robbery Matrix 156 3-3 Ranges of Presumptive Sentences Under Massachusetts, Min- nesota, and Washington Guidelines 164 . V11

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~. V111 Tables and Figures 3-4 Hypothetical Application of Minnesota Guidelines to Preguide- line Cases Sentenced in Fiscal 1978, Classified by Guideline Categories 167 U.S. Parole Guidelines: Recommended Months of Incarcera- tion Before Release on Parole for Adults 171 ~1 Variations in Impact Evaluation Design: California Determi- nate Sentencing Law 190 ~2 Percentage of Cases Sentenced Consistently With Minnesota Sentencing Guidelines 192 ~3 Percentage of Cases Sentenced Consistently With Presumptive Sentences Within Selected Cells of Minnesota Sentencing Guidelines 193 4 4 Changes in Charge Reductions After Implementation of the Minnesota Sentencing Guidelines 202 ~5 California Adult Prison Commitment Rate (Commitments/ 100,000 Residents) 207 =6 Proportion of Convicted Offenders Sentenced to Prison in Cal- ifornia Superior Courts 208 ~7 Changes in Length of Prison Terms by Sex Based on Statewide Data 214 ~8 Shift in Prison Sentences From Property to Persons Offenses Under Minnesota Sentencing Guidelines 216 =9 In/Out Departure Rates for Cases Sentenced Under Minnesota Sentencing Guidelines in 1980-1981 217 ~10 Departure Rates Among Presumptive "Ins" and Presumptive "Outs" (Under Minnesota Sentencing Guidelines) 218 5-1 State Prison Population Change by Region Between 1970 and 1978 227 FIGURES 2-1 Average Seriousness of Prior Arrests for Arrestees with Differ- ent Prior-Record Lengths Washington, D.C., 1973 88 3-1 Dispositional Models Considered by the Minnesota Sentencing Guidelines Commission 173 ~1 Trends in the Timing of Guilty Pleas in California: Percent of All Superior Court Guilty Pleas Entered at Initial Appearance 201 ~2 Prison Use in California 209 5-1 Annual Imprisonment Rate in the United States: 1930- 1981 228

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Contents Volume I} MAKING SENSE OF SENTENCING: A REVIEW AND CRITIQUE OF SENTENCING RESEARCH John Hagan and Kristin Bumiller DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTEM: A CRITICAL APPRAISAL OF THE LITERATURE Steven Klepper, Daniel Nagin, and Luke-Jon Tierney 3 THE ROLE OF EXTRALEGAL FACTORS IN DETERMINING CRIM- INAL CASE DISPOSITION Steven Garber, Steven Klepper, and Daniel Nagin 4 EMPIRICALLY BASED SENTENCING GUIDELINES AND ETHI- CAL CONSIDERATIONS Franklin M. Fisher and Joseph B. Kadane 5 THE CONSTRUCTION OF SENTENCING GUIDELINES: A METH- ODOLOGICAL CRITIQUE Richard F. Sparks 6 THE POLITICS OF SENTENCING REFORM: SENTENCING GUIDE- LINES IN PENNSYLVANIA AND MINNESOTA Susan E. Martin 7 SENTENCING REFORMS AND THEIR IMPACTS Jacqueline Cohen and Michael H. Tonry 8 THE IMPACT OF CHANGES IN SENTENCING POLICY ON PRISON POPULATIONS Alfred Blumstein ix

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Preface The Panel on Sentencing Research is an outgrowth of the ferment that significantly affected sentencing practice in the 1970s. That ferment is reflected in a variety of sentencing "reforms," many of which had their roots in research, much of which involved technical questions of some complexity. The Panel on Sentencing Research was established in September 1980 to review that research on sentencing and its impact. The panel was created in response to a request from the National Institute of Justice to the National Academy of Sciences as a panel of the Committee on Research on Law Enforcement and the Administration of Justice of the Commission on Behavioral and Social Sciences and Education of the National Research Council. The panel's task was to assess the quality of the available research, to indicate how the application of research techniques could be improved, and to suggest directions for future re- search, especially that supported by the National Institute of Justice. To address this range of issues, the panel was composed of specialists representing a variety of academic disciplines, methodological ap- proaches, and operational expertise in the criminal justice system (see Appendix B for biographical sketches of panel members and staff). The issue of sentencing is very broad, and so the panel very early had to limit the scope of its work. Much of the public concern over sentencing relates to its effects on crime, but those effects were explicitly excluded from the panel's efforts because two other panels of the Committee on Research on Law Enforcement and the Administration of Justice the X1

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xli Preface Panel on Research on Rehabilitative Techniques and the Panel on Re- search on Deterrent and Incapacitative Effectshad recently reviewed the research in their respective areas and identified directions for future research. Sentencing also involves many complex philosophical questions re- lating to the role of punishment in society, to the appropriate form of punishment, and to the symbolic qualities of punishment. The panel inquired into these areas to provide a background perspective for its work but viewed their resolution to involve predominantly normative, nonempirical considerations and thus to fall outside the panel's research- related mandate. There are also many important issues surrounding the question of the sentencing of juveniles; however, since most of the recent sentencing research and reform has been directed at the adult criminal justice system, that has been the focus of the panel's attention. In addressing its task, the panel directed its major attention to those issues on which a reasonable body of research already existed or for which new research held promise of making important new contribu- tions. The panel commissioned several papers to synthesize the research in some areas that were particularly extensive, to explicate important methodological issues that limited the validity of existing research, and to identify particularly promising future research possibilities. These papers were presented at a conference the panel organized at Woods Hole, Massachusetts, on July 27-29, 1981 (see Appendix A for a list of participants). The discussion of those papers provided an important contribution to the panel's deliberations, and a number of the commis- sioned papers, revised in response to the panel's suggestions, are con- tained in Volume II. Those papers, which represent the views of the individual authors rather than the panel, are published because the panel believes they make a valuable contribution to the literature on sen- tencing research. The report of the panel is presented in this volume. It is the result of vigorous debates and some compromises. Although some members of the panel would have preferred greater emphasis given to certain issues or arguments, the report represents the collective views of the panel. The panel appreciates the constructive criticism and review the report has received from others. A draft of the panel's report was sent for review to all participants at the Woods Hole conference and to all members of the Committee on Research on Law Enforcement and the Administration of Justice. The panel would like to express its deep appreciation for the extensive contributions by its staff. Susan Martin of the National Research Council served as study director and, as such, managed the affairs of the panel

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Preface ~. X111 and addressed many of the sociological issues involved in the work of the panel. As a consultant, Jacqueline Cohen of Carnegie-Mellon Uni- versity had a primary responsibility for addressing the analytical issues in the research reviewed, but her skills and commitment resulted in many important contributions throughout the report. Michael Tonry of the University of Maryland School of Law, also as a consultant, con- tributed valuable perspectives on the many legal and philosophical con- siderations involved throughout the work of the panel. A final editing of the panel's report and the papers in Volume II was undertaken by Eugenia Grohman and Christine McShane, respectively, of the Com- mission on Behavioral and Social Sciences and Education, and their editorial skills are much appreciated. Diane Goldman at the National Research Council provided major administrative and secretarial support throughout the work of the panel, and her dedication was notable. Jane Beltz provided comparable support at Carnegie-Mellon University. We would also like to express our appreciation to the National In- stitute of Justice. Robert Burkhart and Cheryl Martorana of the institute attended most of the meetings of the panel and were most helpful in providing advice and information on the institute's program on sen- tencing research. ALFRED BLUMSTEIN, Chair Panel on Sentencing Research

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Research on Sentencing: The Search for Reform

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