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1 Making Sense of Sentencing: A Review and Critique of Sentencing Research John Hagan and Kristin Bumiller One of the few certain things about criminal sentencing is that it is an increasingly common subject of empirical research. The bibliography of this paper lists more than 40 studies of sentencing published in the past decade. These studies are notable not only for number but also for their diversity of methods and results. Although early studies of sentencing relied heavily on the use of contingency tables, a striking feature of the past decade has been the widespread application of multivariate techniques, including the development of structural equation models and log linear analyses of the sentencing process. The results have often been provocative, touching most sensitively on issues of racial discrimination in sentencing. The results of recent studies are provocative not only because they raise important issues of equality before the law but also because they frequently appear to contradict one another. To cite only one recent example, while Eisenstein and Jacob (1977:v) conclude from a study of sentencing in Baltimore, Chicago, and Detroit that "blacks are not treated worse than whites . . . ," Lizotte (1978:577) uses some of the same data from Chicago to calculate that ". . . the 'cost' of being a black laborer is an additional 8.06 months of prison sentence. . . ." The purpose of this paper is to critically review these and other findings of sentencing research and to outline directions this research literature might usefully take in the future. 1

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2 TWO INCIPIENT THEORIES OF SENTENCING The literature on criminal sentencing is not guided by a dominant theory or set of theories. There have been attempts by sociologists to tie this literature to the debate between consensus and conflict perspectives (see Hagan et al., 1979; Chiricos and Waldo, 1975; Lizotte, 1978) and to link it to a labeling perspective on crime and deviance (Bernstein et al., 1977a). These perspec tives do not have wide currency outside sociology, however, so only a small part of the literature can be tied directly to these theoretical frameworks. We argue in this paper that there are two incipient theoretical orientations implicit in the assumptions that sociolegal researchers bring to this area of work. We believe that an awareness of these two orientations--the individual- processual approach and the structural-contextual approach--is helpful to understanding developments in this research literature. Early sentencing research observed bivariate relation- ships between attributes like race and sentencing outcomes (i.e., type and length of sentence). These studies (e.g., E. Johnson, 1957) were particularly concerned with demonstrating the differential use of the death penalty against blacks in the southern United States. These studies are important today as a signi- ficant source of historical-comparative data; however, legitimate questions have been raised about their tendency to equate correlation with cause in imputing sentencing differentials to discrimination, without controlling relevant "legal" variables (see Green, 1961; Wolfgang and Riedel, 1973). As subsequent studies began to take additional variables into account, initially with tabular techniques, what we call an individual-processual approach to sentencing research began to take form. In the 1960s this research largely used contingency tables to test whether attributes like race remained significantly correlated with sentence outcome when type of offense and/or prior record were held constant. Although this research labored under the inherent liabilities of tabular techniques, particularly problems of controlling for more than one or two variables simultaneously, it served the important function (at least implicitly) of encouraging researchers to develop models of the sentencing process. For example, the burden of Edward Green's (1961, 1964) early and important

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3 work on sentencing was to argue that when "legal" variables like offense type and prior record are taken into account, the relationship between race and sentence disappears. Implicit in this argument is the assumption that prior record and current offense mediate (in a causal and sequential sense) the race-sentence relation- ship. Later arguments have focused on whether race linked patterns of offense type and prior record should be taken as reflecting differences in criminal behavior or as reflecting earlier experiences of differential treatment by legal authorities Afar "Y=m~l~ =~^ = and ~wlamr~ 1 IRAQ=` ~ ~-Or ~` I ~-- _~___, ~ ,. Both positions could be correct; what is important for our immediate purposes is that in either case it is assumed that offense type and prior record play a causally intervening role in the process by which judges reach sentencing decisions. Two different types of processes are involved, but each is an example of an individual-processual approach to the Anal v.~i .~ And understanding of sentencing data. .. . . . Mucn ot the sentencing research of the 1970S involved variations and elaborations of individual-processual models of the sentencing process. Most significant in the development of this approach was the introduction of a number of important "case-processing variables" into these models and the application of more sophisticated multivariate techniques in the effort to test the fit of these models with actual case data. Among the new variables considered were pretrial bail decisions (e.g., Bernstein et al., 1977a), plea and charging decisions (e.g., Hagan, 1975c), and the presentence recommendations of probation officers and prosecutors (e.g., Hagan, 1975b; Hagan et al., 1979). These studies made increasingly explicit the premise that sentencing is an end result of a decision-making process that involves offenders moving through a series of potentially important stages in a complex criminal justice system. Farrell and Swigert (1978a:442) make this point well: "The highly structured nature of the judicial system lends itself to a systematic analysis of legal - processing. The discrete ordering of events--the social characteristics of the defendants prior to their entry into the system, their accumulated criminal histories, the type of legal representation, pretrial release, the mode of adjudication, and final disposition--constitutes a series of stages that allows the researcher to assert the causal sequence of relationships." Structural

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4 equation models and log linear techniques have provided the technology for modeling this complicated Process. Criminal sentencing is not only a matter of processing individuals through a criminal justice system. Both the individuals and the system occupy variable positions or locations within a social structure, so individual processing decisions can vary by social context. This point has been recognized implicitly in some past sentencing research, and it is made increasingly explicit in recent work. For example, the early studies of capital punishment often attempted to measure variation in the use of capital punishment against individuals across periods of time (E. Johnson, 1957), in different jurisdictions (Bedau, 1964, 1965), and according to whether the crime was interor intraracial (Wolfgang and Riedel, 1973) in character (i.e., interracial crimes represent a conflict across assumed status positions in American society). These studies also suffered from the limitations we have associated with the application of tabular techniques, and they were undertaken with little awareness of one another, thus limiting the full develop- ment of their contextual implications. Since 1977, a number of studies have emerged that begin to exploit the possibilities of a structural- contextual approach. Combining data sets from several jurisdictions, Eisenstein and Jacob (1977), Levin (1977) and Balbus (1973) have linked variations in the political environment to sentencing behavior. Lizotte (1978) has identified the class as well as racial positions of individuals in the social structure and linked these to sentencing outcomes. Most recently Hagan et al. (1980) have distinguished proactive and reactive court organi- of zations and considered their impact on the sentencing white-collar offenders in 10 federal district courts, while Hagan (1982) has examined the consequences of corporate entities compared with individuals acting victim-complainants in the criminal justice process. All of these studies add some feature of structural and contextual variation to their consideration of the individual processing that leads to sentencing decisions. It should be emphasized that what we call the individual-processual and structural-contextual approaches are not mutually exclusive. Indeed, each of these approaches is increasingly persuasive as it includes variables emphasized in the other. For example, it is impossible to be sure whether a political

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5 environment correlated with sentencing outcomes is a cause of those differences in outcome unless the variables considered in an individual-processual approach are taken into account. Similarly, it is impossible to know the generalizability of individual-processual variables apart from structural and contextual consider- ations. Thus the limitations on combining these approaches are clearly not conceptual but rather have to do with the availability of comparable kinds of data across contexts. We return to this problem several times in the course of this paper, for it is central to the advancement of this area of work. Meanwhile, we proceed to a discussion of a variety of more specific problems that plague the various kinds of sentencing research we have introduced. DEFINITIONAL PROBLEMS IN SENTENCING RESEARCH Confusion of central concepts has often made the collation of findings from sentencing studies difficult. The most important of these problems has involved the attempt to draw distinctions between legal and extralegal factors in sentencing decisions. Much of the sentencing research of the 1960 s and early 1970s was premised on such a distinction (see Green, 1961). The distinction frequently drawn was that offense seriousness (as indicated by the maximum sentence allowed by law) and prior conviction record (often written into the law as a basis for more severe sentences) were "legal" variables and that race, sex, age, and other characteristics not included in the law were "extralegal." Difficulties with this distinction cut in at least two directions. On one hand it has been noted that what are called legal variables vary from jurisdiction to jurisdiction (i.e., rankings of offense seriousness vary among states), that what is legal at one stage of decision making may not be at another (e.g., community ties may be considered relevant for bail decisions and irrelevant at sentencing), and that what is legal at the sentencing stage (e.g., prior record) may be the product of discrimination at earlier stages (e.g., by the police) (see Bernstein et al., 1977b). On the other hand, it can also be noted that what are called extralegal variables are directly or indirectly built into some parts of the criminal law. For example, probation statutes often include consideration of the offender's age, and there

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6 remain some state statutes (e.g., many prostitution laws) that justify differential treatment by sex. Many statutes encourage judicial consideration of an offender's employment record at various stages of the criminal justice process (see, for example, the language of the criminal code bill that passed the Senate Judiciary Committee in the first session of the 19th Congress), a factor that works disproportionately against black offenders. Even though the Fourteenth Amendment to the U.S. Constitution provides that No state shall . . . deny to any person within its jurisdiction the equal protection of the laws," the law seems to provide plenty of latitude to do just that. In sum, the law is an ambiguous guide as to those factors that may legitimately influence sentencing decisions. This issue of legitimacy is complicated further by the fact that it has empirical and moral as well as legal dimensions. The empirical dimension involves the issue of what the American public thinks should influence sentencing, while the moral dimension is concerned with what in some more ultimate sense actually should influence sentencing. We speak to the former rather than the latter issue in this paper, and we deal with it primarily in a contemporary context, focusing first on contemporary American judgments about influences on sentencing. We also note that such judgments may vary across time and place in the social structure (see Hagan and Albonetti, 1982). To offer a specific example, what are thought to be legitimate influences on sentences by most Americans today may be significantly different from what were thought to be legitimate influences earlier in this century in the South. Conceptions of what consti- tutes criminal justice change. To acknowledge the moral and variable nature of what influences on sentencing are regarded as acceptable, we speak in this paper of legitimized and nonlegitimized, rather than of legal and extralegal influences on sentencing, and we regard the content of these categories as the product of ongoing social and legal processes. Legitimized and nonlegitimized influences are those within a given social structure and context that the public thinks should and should not affect sentence severity. Although there obviously is no method for unambiguously sorting all influences on sentencing into these two categories, social survey techniques are one important source of information on what influences are

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7 and are not regarded as legitimate by a surveyed population. The top half of Table l-1 presents data on public attitudes toward nine factors that may influence sentencing decisions. These data come from a national survey of American adults interviewed in 1977 to measure their perceptions of and experiences with local, state, and federal courts as well as their more general attitudes toward the administration of justice (see Inter-University Consortium for Political and Social Research, 1979). These data seem to indicate two rather different kinds of concerns. The first is that offenders with a prior record, offenders previously convicted of the same crime, and offenders convicted of a violent crime should receive tougher sentences than offenders who have done none of these things. Well over 80 percent of the respondents endorsed tougher sentencing of these kinds of offenders. The second concern is that whether an offender is well-to-do, poor, or of minority status should have no influence on sentencing; similar levels of support are apparent for this position. In terms of measured attitudes, it is clear that the American public regards prior record and type of offense as legitimate influences on sentencing and that they do not recard - economic and ethnic characteristics as legitimate influences on sentencing. The bottom half of Table l-l summarizes the responses of elite members of the community--i.e., judges, lawyers, community leaders--who were surveyed separately. A similar pattern is apparent. In the remainder of this paper we speak of the variables in Table 1-1 as legitimized and nonlegitimized influences on sentencing decisions. Of course, as we noted above, these data cannot resolve in any ultimate moral sense the issue of whether the legitimacy of variables such as prior record is or is not deserved. In addition, all relevant influences are not considered in this survey. For example, these data do not inform us as to public attitudes toward the influence on sentencing of an offender's employment record. It is also important to note that the data presented in Table 1-1 indicate that the American public as well as some of its elite members believe that neither of its primary concerns is translated fully into the admin- istration of criminal justice in America. In general these data indicate that both groups believe that legitimized factors do not result in sentences as severe

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a) - - .-l c a, u] o u] o a, -t as o a a) H a ,4 a m E~ ~ r oo r I r. 0 u. tD r~ L4 ~ ~ ~ O ~ O ~ O ~ 0 ~ 0 U o.- ~ 0 ~ 0 ~0 o S: .- O C: .- U) ~: .- C . ~ .,~ ~ .,~ ~.- ~ {~ ~ ~, u) ~ ~ 4' ~Q. ~ 01 ~ C) Q. 4 Q. ~ ~ ~, 0~ ~ Q. a~ ~ ~2, )~ a, >1 ~ ~ L. a, ~ i4 Q4 O 0 C) ~ ~ ~ ~ .~ U ~ o' - ~ O ~ 1 Q) ~ - a, ~ ~ ~ ~J ~ ~ a) ~ 0) 0 ~ a) L' 0) a 0 54 a) ~ ~ a, ~ ~ Q. a' ~ Q) ~ ~ a) O ~ a., ~ ~ ~ ~ ~ e, - ~ P4 ~ ~ ~ O ~ P~ ~ C1, P~ O p] t4 ~ ~ ~ O ~, t) ~ ~ O ' - ' - 3 > 3 D4 :~: ~U)

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9 as they should be, and that nonlegitimized factors have an influence on sentences that they should not have. For example, while over 80 percent of the respondents thought being well-to-do should have no influence on sentencing, fewer than 30 percent thought this was actually the case. There is good evidence that a substantial part of the American public perceives its system of criminal justice to be unjust, at least to some degree. Table 1-2 makes the additional point that black Americans are particularly likely to perceive minority offenders as receiving tougher sentences than whites (see also Hagan and Albonetti, 1982). The Pearson's r for this relationship is .18. This may not be surprising, but it does help to focus the concerns of this review. The latter finding leads to the final concern of this section: Past research has confused discussions of discretion, disparity, and discrimination in sentencing. For our purposes we regard discretion as the latitude of decision provided by law to someone in imposing a sentence we regard discrimination as a pattern of sentencing regarded as unfair, disadvantaging, and prejudicial in origin; and we regard disparity as a form of unequal treatment that is often of unexplained cause and is at least incongruous, if not unfair and disadvantaging, in consequence. An illustration of the confusion that can occur in the use of these terms is Farrell and Swigert's conclusion (1978a:450) from an important study of the impact of prior offense record on sentencing that "the use of a prior record as meaningful information in the disposition of a criminal case TABLE 1-2 Perceived Influence of Minority Status on Sentencing by Race of Respondent Influence Much Little No Little Much Race Lighter Lighter Influence Tougher TougherTotal White 4.7 14.7 49.0 26.3 5.4 (76) (237) (791) (424) (87)1,615 Black 1.7 3.9 40.4 32.6 21.3 (3) (7) (72) (58) (38)178 NOTE: Ganuna = .45; Pearson's r = .18.

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10 compounds the discretion of prior adjudications." This use of the term discretion renders the conclusion of this study unclear: Do the authors mean only that the latitude of decision available to authorities has been increased in a legally acceptable manner? The context suggests that what is really meant is that reliance on prior record as a factor in sentencing institutionalizes a form of discrimination. In any case, our purpose in defining these terms is to make our use of them as unambiguous as possible. METHODOLOGICAL PROBLEMS IN SENTENCING RESEARCH Ideally, social science research is a commutative enterprise: Research problems are refined in their definition, increasing amounts of data are brought to bear, findings accumulate, and knowledge increases. The reality of sentencing research falls far short of this ideal. In this section we consider some of the methodological sources of this shortfall. Alternative Measures of Sentence Severity One problem in the commutation of results from sentencing studies is that they operationalize the dependent variable--sentence--in a variety of ways. The only clear area of agreement on this issue seems to be an implicit consensus that sentences can be ordered in terms of severity; the type of ordering applied, however, varies considerably from study to study. These orderings range from a basic binary division between those offenders sentenced to prison versus those who are not (see, for example, Clarke and Koch, 1976) to Uhlman and walker's 93-point scale that attempts to differentiate in considerable detail ". . . between and among degrees of deprivation of individual freedom and the varying severity of nonprison sanctions" (1980:327 and Appendix). Somewhere between these two approaches is the position taken by Hagan et al. (1979:516), who operationalize the concept of sentence severity by using two different binary codings of the same set of sentence outcomes. The first coding separates prison sentences from all others, while the second coding separates the most lenient disposition in their data set, deferred sentences, from all others. The assumption, confirmed in

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11 their subsequent analysis, is that if there is a single dimension of severity, then we should expect to find similar effects of opposite signs when the two coding s are used to examine the determinants of sentencing. our purpose is not to favor one or another of the preceding approaches, but to make clear the diversity of dependent measures that have been used in sentencing studies. In order to cumulate findings from these studies, it is necessary to adopt a common standard, or variety of standards, to be used in some meaningful way across studies. Reanalysis of the original data may be the only definitive way of doing this. Sampling Problems Another problem that complicates the cumulation of results from sentencing studies is the variety of court settings and stages in the criminal justice system at which this research is done. Sentencing studies have been done in federal, state, and municipal courts, drawing samples from locations in the system as early as prosecutors' offices and as late as corrections institutions. There are good arguments for drawing samples from all of these settings and stages. Hagan et al. (1980) argue that federal court samples are important because they include larger numbers of white-collar offenders than lower courts, while Feeley (1979) argues that studies of municipal courts are needed because 90-95 percent of all cases are handled in these lower courts, with the result that "Next to the police, the lower criminal courts play the most important role in forming citizen impressions of the American system of criminal justice" (p. xv). With similar conviction, arguments are made for collecting data relevant to sentencing decisions at various stages of the criminal justice system. On one hand it is suggested that focusing exclusively on offenders sentenced to prison allows consideration of a homogeneous set of dispositions that can be compared in a straightforward way. On the other hand it is suggested that considering a broader range of offenders, to whom various kinds of sentences and other kinds of sanctions are attached, may reduce problems of bias resulting from nonrandom selection processes that may characterize the criminal justice system, from the earliest stages of detection through the imposition of final dispositions.

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46 ~7 c . c . ~ Q) c ~ ~C - o 0 c a' ~ o U tC C U) - ~ C <: ~ ~ m ~ u~ m a, ~ 43 v X ~ a' - 4 C O C) ~: c .,. u) u~ O ~ 1 - u' 41 m u) 4J Ll Q. C - QJ L~ ~ IJ q~ O <: u~ a, u~ ~ C - a~ ~4 q~ q~ 4J O ~S . o - ~: a: c v u C m u, N _' U) ~ >~ E ~ m c u, ~ C c ~ O . - v' ~ 4 m O >' v v, 1 a, > O Q `' m `, O ~ C ~ ~ c ~ a, ~ m 3 ~ c u, u~ ~ ~ ~ u' s m ~ ~ q~ ,~ ."l ~ ~ 3 C > m a~ a, 0 u q~ ~ ~4 C - ~ O ~ ~ Y 3 ~ C - m ~ q~ -4 ~ 0 - 3 ~ - > ~D o 11 l >, ~4 r-, Q) a m a) ~ C ,4 ~ C c .,' u' 1 u) Q} _ m 0 ~ ~ ~ - - a' ~ ~ PH cL e o, ~ C ' ~ _ rl C _~ \0 e ~ ~ .,. . - , ~ b4 ~ O ~ ~n C o u, o CR s .,1 aJ - C 4~ C u' C ta U o, - q~ o C .,1 4d - U O u~ o u, - ~ a, ~ ~ Y s ~ - q4 a) O :~: C ~ ~ (a h S:; ~ ~ C U) ~ m N e e QS D O O m U1 U) .,4 ~a > a, .,' ~ a m u, u~ ~a Q U

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