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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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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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"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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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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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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259
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Representative terms from entire chapter:
sentencing practice
