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

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NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. The report has been reviewed by a group other than the authors according to procedures approved by a Report Review Committee consisting of members of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The National Research Council was established by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and of advising the federal government. The Council operates in accordance with general policies determined by the Academy under the au- thority of its congressional charter of 1863, which establishes the Academy as a private, nonprofit, self-governing membership corporation. The Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in the conduct of their services to the government, the public, and the scientific and engineering communities. It is administered jointly by both Academies and the Institute of Medicine. The National Academy of Engineering and the Institute of Medicine were established in 1964 and 1970, respectively, under the charter of the National Academy of Sciences. Prepared under grant #80-IJ-CX-0067 from the National Institute of Justice, U.S. De- partment of Justice. Points of view do not necessarily represent the official position or policies of the U. S. Department of Justice. Library of Congress Cataloging in Publication Data Main entry under title: Research on sentencing. Bibliography: v. 2, p. 1. Sentences (Criminal procedure) United States. 2. Sentences (Criminal procedure)- United States States. I. Blumstein, Alfred. II. National Research Council (U.S.~. Panel on Sentencing Research. KF9685.R38 1983 345.73'0772 83-4048 347.305772 International Standard Book Number 0-309-03383-7 Available from NATIONAL ACADEMY PRESS 2101 Constitution Avenue, NW Washington, DC 20418 Printed in the United States of America First Printing, July 1983 Second Printing, June 1984

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

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

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Contents PREFACE X1 1 MAKING SENSE OF SENTENCING: A REVIEW AND 1 CRITIQUE OF SENTENCING RESEARCH John Hagan, Department of Sociology and Faculty of Law, University of Toronto Kristin Bumiller, Department of Sociology, University of Wisconsin 2 DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTE M: A CRITICAL APPRAISAL OF THE LITERATURE Steven Klepper, Department of Statistics, Carnegie-Mellon University Daniel Nagin, Pennsylvania Department of Revenue, Harrisburg Luke-Jon Tierney, Department of Statistics Carnegie-Melton University e V11 55

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Contents 3 THE ROLE OF EXTRALEGAL FACTORS IN DETERMINING CRIMINAL CASE DISPOSITION Steven Garber, School of Urban and Public Affairs, Carnegie-Mellon University Steven Klepper, Department of Statistics, Carnegie-Mellon University Daniel Nagin, Pennsylvania Department of Revenue, Harrisburg e V111 129 4 EMPIRICALLY BASED SENTENCING GUIDELINES 184 AND ETHICAL CONSIDERATIONS Franklin M. Fisher, Department of Economics, Massachusetts Institute of Technology Joseph B. Kadane, Department of Statistics, Carnegie-Mellon University 5 THE CONSTRUCTION OF SENTENCING GUIDELINES: A METHODOLOGICAL CRITIQUE Richard F. Sparks, School of Criminal Justice, Rutgers University THE POLITICS OF SENTENCING REFORM: SENTENCING GUIDELINES IN PENNSYLVANIA AND MINNESOTA Susan E. Martin, National Research Council 194 265 7 SENTENCING REFORMS AND THEIR IMPACTS 305 Jacqueline Cohen, School of Urban and Public Affairs, Carnegie-Mellon University Michael H. Tonry, School of Law, University of Maryland 8 THE IMPACT OF CHANGES IN SENTENCING POLICY ON PRISON POPULATIONS Alfred Blumstein, School of Urban and Public Affairs, Carnegie-Mellon University 460

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1 Contents Volume PREFACE SUMMARY Introduction Determinants of Sentences Structuring Sentencing Decisions Assessment of the Effects of New Sentencing Policies Sentencing Policies and Prison Populations Research Agenda 1 INTRODUCTION: SENTENCING PRACTICES AND THE SENTENCING REFORM MOVEMENT The Processes That Constitute Sentencing The Goals of Criminal Sanctions American Sentencing in Comparative and Historical Perspective Scope of This Report 2 DETERMINANTS OF SENTENCES Issues Findings Conclusion 1X

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x Contents STRUCTURING SENTENCING DECISIONS The Variety of Innovations Developing Guidelines: Modeling and Data Issues Developing Guidelines: Policy and Technical Choices The Processes of Developing, Implementing, and Enforcing New Sentencing Standards 4 SENTENCING REFORMS AND THEIR EFFECTS Compliance With Sentencing Reforms Adaptive Responses to Sentencing Reforms The Use and Severity of Sanctions Conclusions 5 SENTENCING POLICIES AND THEIR IMPACT ON PRISON POPULATIONS Changes in Prison Populations and Their Implications Projection of Prison Populations: Need, Technology, and Uses Alternative Strategies for Handling Increasing Prison Populations 6 RESEARCH AGENDA FOR THE STUDY OF SENTENCING General Research Strategy Determinants of Sentences Structuring Sentencing Decisions Effects of Sentencing Reforms Sentencing Policy and Prisons REFERENCES APPENDIX A: Participants, Conference on Sentencing Research APPENDIX B: Biographical Sketches, Panel Members and Staff

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

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xli Preface on Deterrent and Incapacitative Effects had recently reviewed the re- search in their respective areas and identified directions for future research. Sentencing also involves many complex philosophical questions relating to the role of punishment in society, to the appropriate form of punishment, and to the symbolic qualities of punishment. The panel inquired into these areas to provide a background perspective for its work, but viewed their resolution to involve predominantly normative, nonempirical considera- tions, and thus to fall outside the panel's research-related mandate. There are also many important issues surrounding the question of the sentencing of juveniles; however, since most of the recent sentencing research and reform have been directed at the adult criminal justice system, that has been the focus of the panel's attention. In addressing its task, the panel directed its major attention to those issues on which a reasonable body of research already existed or for which new research held promise of making important new contributions. The panel commissioned several papers to synthesize the research in some areas that were particularly extensive, to explicate important method- ological issues that limited the validity of existing research, and to identify particularly promising future research possibilities. These papers were presented at a conference the panel organized at Woods Hole, Massachu- setts, on July 27-29, 1981. The discussion of those papers provided an important contribution to the panel's deliberations, and a number of the commissioned papers, revised in response to the panel's suggestions, constitute this volume. These papers, which represent the views of the individual authors rather than the panel, are published because the panel believes they make a valuable contribution to the literature on sentencing research. The panel would like to express its deep appreciation for the extensive contributions by its staff. Susan Martin of the National Research Council served as study director and, as such, managed the affairs of the panel, and addressed many of the sociological issues involved in the work of the panel. As a consultant, Jacqueline Cohen of Carnegie-Mellon University had a primary responsibility for addressing the analytical issues in the research reviewed, but her skills and commitment resulted in many im- portant contributions throughout the report. Michael Tonry of the Uni- versity of Maryland School of Law, also as a consultant, contributed valuable perspectives on the many legal and philosophical considerations involved throughout the work of the panel. A final editing of the panel's report and the papers in Volume II was undertaken by Eugenia Grohman and Christine McShane, respectively, of the Commission on Behavioral and Social Sciences and Education, and their editorial skills are much appreciated. Diane Goldman at the National Research Council provided

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Preface major administrative and secretarial support throughout the work of the panel; and her dedication was notable. Jane Beltz provided comparable support at Carnegie-Mellon University. We would also like to express our appreciation to the National Institute of Justice. Robert Burkhart and Cheryl Martorana of the institute attended most of the meetings of the panel and were most helpful in providing advice and information on the institute's program on sentencing research. ALFRED BLUMSTEIN, Chair Panel on Sentencing Research xiii

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Research on Sentencing The Search for Reform

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