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5 The Construction of Sentencing Guidelines: A Methodological Critique Richard F. Sparks INTRODUCTI ON The purpose of this paper is to discuss critically a number of conceptual and methodological problems asso- ciated with the construction of empirically based sentencing guidelines.] Guidelines of the type with which this paper is concerned are the most recently proposed technique for attempting to deal with a problem which has been a subject of concern for at least a century: controlling the discretion of individual decision makers in the criminal justice system.2 Sentencing guidelines differ in a number of interesting and important ways from other techniques for controlling discretion in sentencing, such as sentencing codes (Ferri, 1921; Glueck, 1928), mandatory sentences, or "presumptive" sentences. For this reason, sentencing guidelines solve some of the problems associated with these other techniques, while simply bypassing others. Empirically based guidelines do raise a number of problems of their own; these are the problems of most concern in this paper. My focus is primarily on the construction of sentenc- ing guidelines. I do not discuss any theoretical or empirical issues relating to the implementation of guidelines in different types of jurisdictions; nor, a fortiori, do I deal with assessing the impacts (in any sense of that term) of guidelines on sentencing practice, e.g., with the complex problem of estimating "compliance" 194

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195 with guidelines after they have been introduced. Nor, indeed, do I address all the problems that might reason- ably be said to be associated with constructing sentenc- ing guidelines. A political scientist, for instance, would no doubt find it interesting to explore the relationships between different types of legal systems and judiciaries and the acceptance of judicially sup- ported guidelines as a means of controlling discretion in sentencing; legal theorists and sociologists of organiza- tions could similarly find grist for their respective mills. My concern is with what might be called the technology of developing sentencing guidelines, as that technology has been represented in a number of different American jurisdictions over the past decade or so. In discussing some of the problems of this technology, I refer to the decision-making guidelines that have been developed and/or implemented in a few American jurisdic- tions in recent years. My primary purpose in doing this will be illustrative rather than evaluative. Much of the empirical research done by those who have been involved in developing guidelines in recent years has been severely flawed in methodological terms; as a result, that research has often yielded descriptions of antece- dent sentencing practices that were both inaccurate and misleading. In one sense this may not have mattered much, since (in at least some jurisdictions) the findings of the empirical research carried out as a preliminary to the formulation of guidelines were substantially modified in the light of considerations of legal or social policy. I shall also argue, however, that much of this empirical work has rested on a faulty conception of the proper role of research in relation to the development of guidelines. empirical research--if it is correctly done--can be - There are indeed a number of ways in which , useful to those planning to introduce sentencing guide- lines (or other techniques for controlling discretion). Much research to date in this area, however, appears to have serious technical shortcomings, which in some cases may have obscured important questions of policy and in others may lead to highly undesirable consequences-- including some consequences that guidelines are supposed to avoid. The construction of empirically based sentencing guidelines has been said to involve three distinct steps (Zimmerman and Blumstein, 1979; Gottfredson et al., 1978; Kress, 1980). The first of these is the collection of data on past sentencing practice. The second is the

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196 analysis of those data aimed at producing a model of past sentencing practice; such models usually take the form of statistical equations purporting to show the relation- ships between such things as seriousness of offense and prior record to past sentencing outcomes. The third is the translation of the model thus obtained into a prescriptive instrument--that is, the guidelines them- selves. In later sections of this paper, these three steps are discussed in some detail; each has distinctive problems associated with it, and as we shall see the three-step account itself has certain flaws. But as a preliminary, it may be useful to look briefly at the guidelines that are meant to be the end-product of this three-step exercise. If the objective of the collection and statistical analysis of data on sentencing is the construction of an instrument to guide future sentences-- rather than, say, the testing of conflict or Marxist theories about the criminal justice system (e.g., Hagan, 1975; Lizotte, 1978)--then this has important implica- tions for the kinds of data collection and analysis that are reasonable to do. THE CONCEPT OF DECISION-MAKING GUTDELINES3 Empirically based decision-making guidelines were first proposed in the field of criminal justice by Don M. Gottfredson and Leslie T. Wilkins, for use in connection with the decisions of parole boards to release offenders from prison. The U.S. Parole Commission has used various versions of the Gottfredson-Wilkins guidelines since 1972 (see Gottfredson et al., 1975; Gottfredson et al., 1978). A feasibility study of the application of guidelines to sentencing was begun by Gottfredson and Wilkins in 1974; while not all of the guidelines subse- quently develped in various American jurisdictions have followed what may be called the Gottfredson-Wilkins model, the great majority have done so. The basic concept of the Gottfredson-Wilkins model of guidelines is as follows. Decision makers in the criminal justice system--for example, judges or parole board member --are given information about the patterns of decision making in their jurisdictions in the past; they then use this information to guide their decisions in the future. In the case of parole decision making (which is of course concerned only with offenders who are already incarcerated) the information typically consists

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197 of a range of months or years served in prison before release on parole. The parole board may release pris- oners after they have served terms falling within that range without any further justification. Alternatively, the board may depart from the guidelines-setting a term of incarceration that falls outside the suggested range--if there are special factors that appear to make this appropriate, although the board must state its reasons for any such departure. The typical form of such guidelines is a two- dimensional matrix or table, in which the rows correspond to different types of current offense (usually although not necessarily ordered by seriousness), and the columns correspond to an offender score, which is usually largely a function of prior criminal record but may also include other personal attributes (e.g., a presumed measure of social stability, such as employment status, education, or the absence of drug use). Each of the cells of the resulting matrix contains the normal range of months or years of incarceration for offenders with the particular combination of offense type and offender score defining the cell. Table 5-1--which is based on the U.S. Parole Commission's current guideline - -is an example of such a matrix. This table shows that, for example, an offender who has been imprisoned for an offense of "low moderate" seriousness (examples, in the U.S. Parole Commission's TABLE 5-1 Customary Total Times to be Served in Prison Before Release, in Months, Under U.S. Parole Commission Guidelines Severity of Parole Prognosis (Salient Factor Score) Offense Very Good Good Fair Poor Low 6-10 8-12 10-14 12-16 Low Moderate 8-12 12-16 16-20 20-25 Moderate 12-16 16-20 20-24 24-30 High 16-20 20-26 26-32 32-38 Very High 26-36 36-45 45-55 55-65 SOURCE: Adapted from data in Gottfredson et al. (1978:24-26).

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198 matrix, include fraud involving less than $1,000 and the simple possession of marijuana) and who has a good Prognosis (as measured by the commission's Nsalient score) should normally serve between 12 and 16 _ factors months in prison before release on parole. Evidently, a very similar kind of matrix could be used by judges in deciding what sentences to impose on convicted offenders, although there are some important differences between sentencing and parole guidelines, which follow from differences in the decisions they are meant to regulate. Before turning to those matters, however, let us consider what is distinctive about the Gottfredson-Wilkins concept of guidelines, compared with other techniques that have been proposed for regulating, controlling, or structuring discretionary decisions. Two things appear to be important: (1) Ranges rather than points. The parole guidelines originally proposed by Gottfredson and Wilkins provided for a range of months or years to be served before release from prison; in this respect their guidelines differ from most forms of presumptive sentencing (e.g., California's Uniform Determinate Sentencing Law of 1976), under which the term to be imposed in the normal defined in terms of a single point or period of time, such as two years.4 case is (2) Nonmandatory ranges. It is essential to the Gottfredson-Wilkins concept of guidelines that judges or parole board members are not legally required to impose a sentence or fix a term within the range stipulated by the guidelines matrix. They may of course do this; if they do, then no further justification of that sentence or term is required. They may decide that it is appropriate to depart from the guidelines, if there are special features of a case that seem to justify a higher or lower term than the normal range of the matrix cell provides. They should state their reasons for doing so, citing the features of the case that in their opinion make a higher or lower sentence appropriate. It is perhaps these two features--a range of permitted variation and the option of departure from that range in explicitly justified circumstances--that have led Gottfredson and Wilkins to describe sentencing and parole guidelines as a means of structuring decision makers' discretion, rather than limiting or eliminating it (Gottfredson et al., 1978:8). Providing a normal range

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199 of prison or jail time within which no special justifi- cation is needed does two things. First, it recognizes that for any combination of factors, such as offense type and offender score (however those are defined), there will probably still be some differences between cases-- for example, in the amount of property stolen or damaged, the amount of injury inflicted, or the vulnerability of the victim--that may justify some variation in sentences imposed. A normal range also accepts the view that people may reasonably disagree about the appropriate penalty, given the facts of a particular case. Guide lines aim to set limits on that kind of difference of opinion, by providing that sentences outside the stipulated range must be specially justified. It may be noted in passing that there are a number of . other features that Such a system of sentencing gu~de- lines may have, which although not intrinsic to the process of constructing guidelines may nonetheless have some implications for the analysis of past sentencing (Some of these features were suggested by practice. Gottfredson and Wilkins; others were not, but are exemplified by guidelines now in existence.) First, there may be rules that limit the grounds on which sentences outside the normal guideline range may be justified, so that departure is permissible only if one or more of an explicit list of aggravating or mitigating factors is present. The Minnesota guidelines, for example, are accompanied by a list of four mitigating factors and four aggravating factors that may justify departure from the prescribed range; there is also an explicit list of 11 factors that may not be used as grounds for departure.5 Second, there may be limits placed on the length or type of sentence that can be imposed by judges if they do go outside the normal range; the first set of proposed Pennsylvania guidelines, for example, limited aggravated and mitigated sentences to adjacent cells of the matrix.6 Third, the reasons given for departing from the guideline range may be incorporated into the process of appellate review of sentences, if there is such a process in the jurisdiction.7 Alternatively or additionally, information on the use of the guidelines (including departures and the reasons given for them) may be made available to the judiciary or the sentencing commission, who may then decide whether the guidelines should be modified in some respect. This kind of feedback process, involving continuous monitoring of the guidelines after

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200 their implementation, was in fact regarded by both Gottfredson and Wilkins as central to the concept of guidelines; it is what they meant by Making policy explicit and by the "evolutionary models they proposed (Gottfredson et al., 1975; Gottfredson et al., 1978; Gottfredson and Gottfredson, 1980). This process is a feature of the U.S. Parole Commission's current proce- dures and appears to have led to modifications of the commission's guidelines from time to time; it is also envisaged by the Minnesota Sentencing Guidelines Commis- sion, although that state's guidelines have not been in operation long enough to see how it will work in practice. What about the empirical basis of sentencing guide- lines? There is certainly an impression conveyed by the literature on this subject that an analysis of past sentencing practice is intrinsic to the concept of sentencing guidelines. All the guidelines developed to date have taken as their starting point a statistical analysis of past practice, the purpose of which was ostensibly to identify those factors most strongly associated with sentencing variation in the past. Gottfredson and Wilkins have both said on numerous occasions that guidelines are "descriptiveN rather than "prescriptive" (see, for example, Wilkins et al., 1976:31-32; Gottfredson et al., 1978; compare Press, 1980:11-12). Similarly, the New Jersey guidelines state that n it should be emphasized that the purpose of sentencing guidelines is not to persuade judges regarding what is the 'right' sentence or the 'best' sentencer (McCarthy, 1978:6) and elsewhere repeat the ~descriptive, not prescriptive" idea. Given this rhetoric and its associated history, it may seem natural to assume that sentencing guidelines must be based on an analysis of past sentencing practice.8 It takes only a moment's reflection, however, to see that this is not necessarily so; and that the much-touted empirical basis of guidelines is by no means intrinsic to the construction of an instrument for controlling decision makers' discretion.9 On the contrary, a matrix like that in Table 5-1 could obviously be made up--by a legislature, a sentencing commission, or a parole board--without any reference whatever to past decision-making practice. This is in fact precisely what happened with the Oregon parole guidelines, which were first developed in 1975 and given statutory authority in 1977. No analyses of past decisionrmaking practices were carried out before these guidelines were formulated;

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201 instead, the board, under the chairmanship of Ira Blalock, simply made up the appropriate ranges of time to be served by different types of offenders. It is in fact unclear how far Blalock and his colleagues were trying, in creating their guidelines and the associated defini- tional rules, to reflect past paroling practice in the state.l What is clear is that they did not carry out any detailed analysis of those past practices, and of course they did not need to do so. prescribed. They simply That said, it may be agreed that "obtaining an empirical description of current sentencing behavior is a reasonable first step in the process of sentencing guideline development" (Zimmerman and Blumstein, 1979:2). There are several reasons why this may be the case. First, most advocates of guidelines have been animated by a belief that these will somehow help to reduce disparity in sentencing; given this animus, it may be thought prudent to show that there has in fact been such disparity in the past.ll Second, there may be a genuine feeling that what was done in the past was by and large right (and so ought to be incorporated into anything aiming to prescribe what should be done in the future); I suspect that this view has fairly widespread support, especially among the judiciary, although it is az~'cu't to get anyone to say so in public. It may indeed be agreed that past sentencing practice has been correct on the average, but that there has been too much variation around that average; disparity in this sense of excessive variation need not entail, of course, that sentences in the past were based on morally iniquitous factors such as race or social class. If it is felt that the judiciary's collective wisdom has in the past been generally on target, then research may give a clearer picture of what the targets in question have been; this may help judges to sentence in a more consistent fashion. Finally, and perhaps more cynically, it may be thought that it will be comforting, especially to the judiciary, to claim that sentences in the future will not be too different from what they were in the past; a bit of preliminary number-crunching may make this politically expedient claim more plausible.l2 . . . . . ~ In any event, one muse scare somewhere, when Implementing sentencing reform; and it plainly seems better to begin with good empirical evidence than with unsupported speculation.13 After all, many people--including many judges and legislators--do not know that an offender given an

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202 "indeterminate" sentence of 5 to 15 years in prison is likely to be back out on the street in perhaps 24 months; research may help to convince them of this fact, if indeed it is a fact.14 It should not be forgotten, however, that it is perfectly possible to construct sentencing or parole guidelines in the back-of-an-old-envelope fashion followed by the Oregon parole board; these might be called guidelines by fiat. I shall have little to say about Such genes in this paper, which is mainly concerned with the problems of carrying out empirical research on past sentencing practice. It is important to keep in mind the possibility of such guidelines, however, when considering the construction of empirically based ones. To do so may serve to remind us that there is no necessary connection between descriptions of current practice and guidelines as a prescriptive instrument. THE DESCRIPTION OF PAST SENTENCING PRACTICE I begin by distinguishing, definitionally, between a sentencing policy and sentencing practice. I use the term policy to refer to a description of the various things that enter consciously into the decisions of judges (or parole boards). It includes not only their (probably rather mixed) views about the proper goals of their decisions but also their (sometimes not fully articulated) views as to what they should do in a particular type of case to accomplish those goals, the features of the case that justify their doing one thing rather than another, and so on. A judge's sentencing policy, by this definition, would be described by a sincere answer to the question, "what do you generally do with cases of type X, and why?" ~ In all probability, the answers to a number of supplementary questions would also be relevant. Such an account of sentencing policy assumes that it basically involves the application to particular cases of some rules or recipes of the form, "If the case is of type X, then do Y"; it also implies at least minimal self-consistency on the part of individual judges over time. The term sentencing practice, by contrast, is used to refer to what may be called an external description of judges' sentencing behavior; it does not incorporate any reference to what the judge(s) in question thought, believed, intended, etc. when imposing the sentences in

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203 question. Sentencing practices are what are described by statements like "Court A imprisoned 75 percent of its convicted burglars, whereas Court B put 95 percent of its convicted burglars on probation"--statements than can in principle be verified or falsified by summary statistics, observation, etc., which entail no reference to the conscious plans of action on the part of judges leading - . up to the sentences in question. The importance of- th IS distinction is that there is, generally speaking, only one correct description of the sentencing policy followed by a judge at a particular time and place, whereas there is an infinity of correct descriptions of the judge's practice, consisting of the sentences imposed at that time and place.15 It is clear that many if not most of those who have done research on sentencing with a view to creating guidelines have wanted to influence sentencing policies. Gottfredson and Wilkins, for example, claim that their early work with the U.S. Parole Board was "making paroling policy explicit. n Similarly, the sentencing guidelines developed in Minnesota and Pennsylvania were very explicit statements of policy: They were intended, one might say, as Recipes for sentencing" that judges were to follow in the future. Given that aim, it seems reasonable to suppose that the empirical research that has been carried out, as a preliminary to formulating guidelines, should have been research on previous sentencing policies. It is important to note, however, that this has almost never been the case. In almost every instance, the research on past decision making with which we are concerned has been of a kind that (at best) could only have produced an external description of past practice. The earliest research of Gottfredson and Wilkins is a sort of exception. Gottfredson and Wilkins first obtained from parole board members their subjective ratings of a number of variables, such as seriousness of offense, risk of recidivism, institutional behavior, etc., for a number of cases. They then analyzed these (using the statistical procedure known as multiple regression) and showed that seriousness of offense and length of prior record were the two variables most strongly related to the lengths of time served to parole in the cases studied. They then categorized and cross- classified these two variables to obtain a matrix like the one shown in Table 5-1 above, calculated median times to parole in each of the cells of that table, judgmen- tally "smoothed" those medians, then bracketed them with . . ,

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204 more or less arbitrarily chosen ranges to produce the guidelines. That was the extent of their empiricism. To say that this method made explicit a policy of the U.S. Parole Commission that had been in effect all along was a pretty safe claim. Seriousness of current offense and length of prior record have been said to be the most important, morally appropriate determinants of sentences in an enormous number of jurisdictions; any study of sentencing practice that does not find these things to be most strongly associated with severity of sentences (at least for adults) has probably measured something incorrectly. The inferential leap that Gottfredson and Wilkins made from practice to policy was thus not a very great one--especially since those two variables were defined in terms of the assessments of parole board members rather than in some more objective fashion. Any more ambitious inferences, however, are perilous. For one thing, even with the two obviously relevant variables just mentioned, an accurate assessment of sentencing policy requires that we know just what judges mean by saying that, for example, an offense is serious or a prior record minor; concepts of that kind may in practice be quite complex and variable, and (perhaps surprisingly) these particular concepts are still imperfectly under stood.l6 To be sure, most of us have some fairly crude commons ens e notions about what makes a crime serious or a prior criminal record trivial, but these notions clearly do not take us very far. Moreover, there is not at the present time anything that could be called a theory about how judges (or parole boards or analogous decision makers) actually decide what sentences or prison terms to impose. We know next to nothing, for example, about the ways in which attributes of the current offense(s) and facts about the offender's prior criminality tend to be combined, in practice, so as to influence the judge's choice of sentence. Further- more, we knew little about what other kinds of things (prospects for rehabilitation, for example) may be considered by judges or parole boards in certain cases. As is well known, the philosophy of sentencing is now in some considerable turmoil, in the United States and elsewhere; what Allen (1964) call-cd the "rehabilitative ideal" is fast losing what little credibility it ever had, in most jurisdictions, and "just deserts" (van Hirsch, 1975) are being served up in its place. This makes it extremely difficult to infer anything about the

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254 transformation is to be distinguished from that which is involved if it is assumed that relations between outcome and explanatory variables are multiplicative rather than simply additive (as is the case, for instance, with some kinds of "interactions"--see below). 46. This refers, again, to the issue of statistical significance. It cannot be too often repeated that this kind of significance does not license any conclusions about meaningfulness (see the discussion below of the analyses done by Zalman et al., 1979). 47. Unfortunately, the term interaction is sometimes used by statisticians to refer to other things, in particular the situation in which a set of relationships (e.g., between offense and offender variables and sen- tences) differs between subpopulations (e.g., whites and nonwhites). A situation of this kind, and the example given in the text, are by no means necessarily equivalent. 48. In such a case, the other variable is sometimes called a suppressor (see, for example, Rosenberg, 1968; J. Davis, 1971). But it makes no sense to test all pairs of variables that seem to display no association with each other, to see if this kind of suppression is taking place--not least because it may look that way, purely by chance, if enough candidate suppressors are tested. 49. Almost all of the "significant" relationships repor- ted by Zalman et al. had a probability of occurring pure- ly by chance (according to statistical theory) of less than 1 in 1,000. A more common level of this kind of significance uses a probability of chance occurrence of less than 1 in 20 as a criterion. Neither is proof against nonsense, however. If one looks at 500 bivariate associations, for example, the latter criterion means that one should expect, on average, 25 associations of the requisite strength, just by chance. If one ends up with 26 such associations, which is not just a fluke? . . 50. This question should be distinguished from the ques- tion of the number of alternative but equally suitable models that one should seek for the same decision, e.g., lengths of terms given to those imprisoned after a trial and conviction. Statistical analyses may (and crudely empirical ones almost certainly will) yield several such models of about equal explanatory power (see Gelman et al., 1979).

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255 51. Quite commonly, for example, offense and offender variables that emerge from regression models will be com- bined into what are sometimes called Burgess scales (in honor of their use in the first parole prediction study by Burgess et al. (1931)): that is, each included factor will simply be given a score of +1 rather than a weight estimated by regression or some other procedure. The scale scores thus derived may further be grouped into categories (e.g., 0-2, 3-5, etc.) in guidelines. Such scores are quite robust in the sense that they tend to hold up on cross-validation (for a discussion, see Wainer, 1976, 1978) . They obviously permit only crude categorizations of offenders into matrix cells; but, as I noted earlier, the concept of guidelines has enough flexibility that this does not much matter. Such smoothing or rounding techniques need to be distin- guished, however, from modifications of the results of analyses of past practice that are explicitly based on considerations of policy, e.g., removing the effects of racial discrimination or regional variation. 52. Strictly speaking, guidelines may also prescribe the place of incarceration, e.g., jail or prison. The New Jersey guidelines do in fact give a hint to judges about this, although no more (see Sparks et al., 1982) . 53. Wilkins seems to believe that they are (see, for example, Wilkins et al., 1976:2-3: contrast, however, Gottfredson et al., 1978:Ch.5). At any rate, neither h e nor anyone else to my knowledge has presented psycho- logical evidence in support of this view. 54. Further guidelines may be developed to deal with each category defined by the first decision: Thus guidelines that aim to regulate the decision to incar- cerate can coexist with durational guidelines, which may be used by another agency, e.g., a parole board (for a further discussion see Sparks et al., 1982:Ch.2,3,11). 55. For descriptions of some of these methods--LOGIT and PROBIT models, and logistic regression--see Fienberg (1977); Bishop et al. (1975); Cox (1970). Applications to criminal justice problems include Solomon (1976); Larntz (1980); Zimmerman and Blumstein (1979); Gottfredson and Gottfredson (1980). The finding--e.g., by Zalman et al. (1979) and Gottfredson and Gottfredson (1980) that the results of using such procedures do not d iffer substantially from those of simpler and better

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256 known techniques--may be largely due to the crudeness with which many criminal justice data are measured (contrast Rhodes, 1981, who takes a different view). 56. It is important to note that this scoring of nonincarceration sentences as zero, at the modeling stage of guidelines development, is quite a separate matter from the use (or the misuse) of zero to represent such sentences in the guidelines themselves. This problem is discussed below. 57. See above, notes 34 and 35. In fact, the Massachu- setts guidelines are (or initially were) ~advisory" in cases in which there was not an agreed recommendation following a plea of guilty. Cases of this type, which would seem to have a sort of intermediate status in the adversary process, might themselves be modeled separ- ately, since the determinants of sentences in such cases could well be different from both those operating in those cases that went to trial and those for which there were agreed guilty pleas. This matter is currently being studied by Bridget Stecher and me, using the Massachu- setts data. 58. In the Michigan study (Zalman et al., 1979) offenses were grouped into broad categories of similar sorts of behavior (e.g., sex crimes); within each of these categories, the various offenses were given a seriousness score that was the maximum sentence provided by statute, in months. 59. Marvin Wolfgang and his colleagues at the University of Pennsylvania have recently completed a survey of perceived crime severity using a large national probabil- ity sample (drawn from respondents in the National Crime Surveys); preliminary results from this study, as yet unpublished, suggest that there is in fact considerable variation in the numerical scores assigned to offense descriptions among subgroups of the population. For the view that such differences may reflect variations in the use of the natural number scale as well as the sparseness of the descriptions typically used in this kind of research, see Shelly and Sparks (1980). 60. The situation seems exactly analogous to that of van Bortkewitsch, who showed that the Poisson distribution fitted the observed distribution of deaths from horse

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257 kicks in 10 corps in the Prussian army over 20 years. There were in fact 14 corps, but von Bortkewitsch excluded four that had abnormally large numbers of deaths, thus sparing himself the necessity of fitting negative binomials or something similar instead of the Poisson (see Coleman, 1964:291). No doubt it is nice to have reasons--if not theories--to justify such exclu- sions; the point is that such abnormal cases should be excluded, whether or not an apparent reason for their abnormality is present. The basis for deciding that a case is abnormal is, of course, somewhat subjective if no such theory is available. 61. See, however, the discussions of "inrout~ predic- tions by Zimmerman and Blumstein (1979), Rich et al. (1980), and Zalman et al. (1979), and criticism of their techniques by Sparks et al. (1982:Ch.ll). For several reasons, a cutoff of exactly 50 percent is too peremptory a measure of "in" versus "out. 62. They were agreed after discussion with the project's Steering and Policy Committee, which consisted mostly of judges. No pun is intended. 63. Further details of this analysis are reported in Sparks et al. (1982:Ch.9). It may well be, of course, that such changes in outcome are precisely what is wanted, on grounds of social policy. However, it seems to me important to try to estimate (at a minimum) what the aggregate consequences of such a change in sentencing practice would mean, e.g., for prison populations; as I note below, only the Minnesota researchers have so far considered this issue. 64. The midranges are thus treated as a "response" or dependent variable, which is assumed to be determined by the variables that define the rows and columns; the effect of the technique is thus rather like that of the analysis of variance. See also Mosteller and Tukey (1977); McNeil and Tukey (1975); Fairley (1978); and for applications of this method to parole guidelines matrices see Perline and Wainer (1980); Sparks (1983). 65. A multiplicative model of this kind involves the same techniques applied to the logarithms of the mid- ranges rather than to the midranges themselves (see Tukey, 1977). The value of such a model is that the

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258 effect of, say, prior record, differs according to the level of seriousness of the offense one is considering. Both the Minnesota and Pennsylvania sentencing guidelines display such a structure (see Sparks et al., 1982:Ch.9). 66. I am not suggesting that such anomalies must be indefensible; perhaps there really is a case for a very much heavier or lighter prescribed term in this or that cell, than what the best-fitting overall structure would dictate. But if so, why? The point of the techniques discussed here is that they may help to make perspicuous matters that may otherwise remain unnoticed. To the . . extent that they succeed in doing this. they surely contribute to what Gottfredson and Wilkins primarily had in mind when they sought to make paroling policy ., , "explicit," which is not the same thing as "making paroling policy. 67. It is open to argument whether range widths within cells should be evaluated in terms of absolute numbers of months (in which case the heavier midranges will usually seem to have the wider ranges), or in terms of cell ranges standardized by their midranges, i.e., in "plus or minus" percentages around the midrange (in which case the - greatest latitude will often be elsewhere in the matrix, probably in those cells prescribing on average the lightest terms). - ~ For example, in a cell with a pre- scribed range of 12-18 months, an offender getting the maximum "normal" term will serve half again as long as one receiving the minimum; in other words, around the midrange this is equivalent to a olus-or-minus oermis- sible variation of 20 percent. ~ ~ , Compare the situation in a cell prescribing a range of 96-120 months (plus or minus about 11 percent, around a midrange of 108 months). In which case is there more variability? 68. At present, however, this computer program (which takes initial inputs, e.g., conviction patterns, as relatively static) looks forward only five years; longer-term projections are needed for many purposes, including planning for prison capacity. The program is, however easily modifiable to permit this. (Minnesota Sentencing Guidelines Commission, 1981, gives details and a program listing; the commission's research director, Kay Knapp, should be contacted for further information.)

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