Research on Sentencing The Search for Reform, Volume I (1983) / Chapter Skim
Currently Skimming:
3 Structuring Sentencing Decisions
3 Structuring Sentencing Decisions
Pages 126-183
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 126... ...
THE VARIETY OF INNOVATIONS THE RETREAT FROM INDETERMINACY Twentieth-century American sentencing systems before 1976 are commonly referred to as "indeterminate." Under indeterminate sentencing judges and parole boards have wide discretion in setting prison terms within broad statutory ranges for sentence length. Usually the actual length of a prison term remains unknown to a prisoner until the parole board authorizes release.
|
From page 127... ...
Other jurisdictions made other changes: Pennsylvania adopted both mandatory minimum sentences and sentencing guidelines while retaining parole release; and in Washington the parole board established parole guidelines, the judiciary established sentencing guidelines, and the legislature later created a commission charged to develop sentencing guidelines to take effect in 1984. CLASSIFICATION OF OFFENSES The federal criminal laws and those of most states developed adventitiously.
|
From page 128... ...
Until recently, sentencing decisions were anomalous. Judges were seldom required to give reasons for the sentences they imposed, and sentence appeals were not usually available in most jurisdictions.
|
From page 129... ...
Under indeterminate sentencing laws they have broad statutory flexibility, and they are typically not required to account for their decisions. Partly to facilitate communication among judges, the U.S.
|
From page 130... ...
At least nine major objections to plea bargaining have been asserted. First, until the 1970s, most plea negotiation was hypocritical: a majority of convictions resulted from guilty pleas, but defendants were required to deny in court that they had been offered inducements to plead guilty (President's Crime Commission, 1967:9~.
|
From page 131... ...
Third, it can be used to mitigate the harshness of mandatory sentencing laws that prescribe punishments more severe than ~ For the contrary argument and supporting evidence that the majority of defendants would continue to plead guilty without plea bargains, see Feeley (1979:Ch.
|
From page 132... ...
(See Kerstetter and Heinz t1979] for a report on the Dade County, Florida, MANDATORY MINIMUM SENTENCES Between 1977 and 1980, mandatory minimum sentencing laws were adopted in 27 states and were under consideration in at least 14 others (U.S.
|
From page 133... ...
Determinate sentencing exists in those jurisdictions in which the lengths of prison sentences can be determined, assuming the prisoner's good conduct in prison,3 at the time the judge announces the sentence; the release date is not determined later, by a parole-type agency.4 By that criterion, at least nine states have enacted determinate sentencing laws: 3 Most state prisons operate good-time systems under which the length of any prison sentence can be reduced as a reward for good behavior while in prison. Throughout this report, discussion of the lengths of prison sentences should include the qualification "assuming good behavior in prison and that good-time credits are not administratively reduced or increased." 4 A somewhat different concept of determinacy includes parole systems under which release dates are set in the early months of confinement but excludes those jurisdictions that have not established relatively detailed standards for sentencing and parole decisions.
|
From page 134... ...
California's Uniform Determinate Sentencing Law, at the other extreme, abolished parole release for most prisoners and enacted detailed statutory sentencing standards. That law provides that, when sentencing offenders to prison, judges choose one of three specified sentences as the "base term" for persons convicted of a particular offense (for example, 2, 3, or 5 years for robbery)
|
From page 135... ...
PRESUMPTIVE/PRESCRIPTIVE SENTENCING GUIDELINES AND SENTENCING COMMISSIONS Existing sentencing guideline systems differ on two important dimensions: their legal authority and the influence and role of empirical information on past sentencing practices in generating the guideline sentences. Guidelines are presumptive or voluntary, depending on their legal force.
|
From page 136... ...
The operation of a presumptive guidelines system can be illustrated by the Minnesota guidelines. Table 3-1 shows the sentencing grid of the Minnesota Sentencing Guidelines Commission.
|
From page 137... ...
15 18 21 25 24-26 32 30-34 41 37 45 Simple Robbery V 18 23 26 24 32 23-25 30-34 43 4105 27 11 293-°31 1 1 ~L~ 38 36~0 44 42 46 65 6~70 46 43-49 54 50-58 81 75-87 54 50-58 65 60-70 98 90-104 Assault, 2nd Degree VI 21 Aggravated Robbery VII 41 38-44 49 45-53 Assault, 1st Degree Criminal Sexual Conduct? VIII 1st Degree 54 50-58 65 60-70 76 71-81 95 89-101 113 106-120 132 12~140 Murder, 3rd Degree IX 97 90100 116 .
|
From page 138... ...
Parole Commission's parole guidelines (see the next section)
|
From page 139... ...
Parole Commission and by the parole boards of several states, including Florida, Georgia, Maryland, Minnesota, New York, Oklahoma, Oregon, and Washington. The first parole guidelines system was initiated by the (then)
|
From page 140... ...
Supporters of parole guidelines assert that well-organized, well-managed parole boards can achieve greater policy consistency than judges because parole boards are small, continuing collegial bodies; that parole boards applying consistent policies can reduce sentencing disparity by compensating for the disparate prison sentences imposed by dozens of judges throughout a jurisdiction, thereby in effect performing an appellate sentence review function; that parole boards can act as prison population control mechanisms by speeding releases when necessary to relieve population pressures; that parole boards, by being less visible, are less subject to public pressures and are freer to take risks in releasing inmates; and that parole guidelines are likelier to be followed than criteria for judicial sentencing because the status of hearing examiners as institutional employees makes them more amenable to discipline and managerial controls and their decisions more easily subject to review than are those of judges. Critics of parole guidelines note that they cannot supplant promulgation of standards for judicial decisions because they have no relevance to the "in/out" decisions (whether or not to imprison)
|
From page 141... ...
Without serious exception, these studies found that appellate review had little more than a negligible impact, generally providing a remedy only in egregious cases but not capable of developing clearly articulated criteria or standards by which to guide future sentencing decisions. Several organizational factors appear to contribute to the limited importance of appellate sentence review in the United States.
|
From page 142... ...
, and there were, accordingly, no standards that an appellate judge could invoke to determine whether a particular sentence was excessive in length or otherwise inappropriate. The prospects for meaningful appellate sentence review may be greater under some determinate sentencing systems than they were under indeterminate sentencing.
|
From page 143... ...
Still others—bans on plea bargaining and abolition of parole are radical breaks with tradition that signal a fundamental reappraisal of the criminal justice process. The other changes—statutory determinate sentencing, presumptive/ "prescriptive" sentencing guidelines, parole guidelines, mandatory minimum sentences, and appellate sentence review—can be seen as efforts to establish general sentencing criteria and to work toward sentencing that is evenhanded, accountable, and reasonably consistent.
|
From page 144... ...
Sentencing guidelines are treated as the archetypal case for illustrative purposes, but the discussion is generally applicable to other forms of sentencing standards. MODELING PAST PRACTICE The first empirically based sentencing standards were the U.S.
|
From page 145... ...
The first generation of sentencing guidelines led to several challenges to "descriptive" guidelines: first, whether such a thing as an "implicit policy" of a court exists; second, the degree to which the statistical models intended to capture the "implicit policy" reflected actual sentencing practice and, more generally, whether any simple linear model can adequately reflect the complex considerations that influence sentencing decisions (and thereby serve as the basis for establishing a sentence for any particular case) ; and third, whether the availability of models of past practice obviates the need to make normative choices when developing guidelines.
|
From page 146... ...
A model that is generally representative of a court's decisions on sentence outcome can have several policy uses. First, the articulation of past sentencing practices can serve as a standard for judges in their individual sentencing decisions, and also as a basis for possible reconsideration of prevailing practices in an iterative process of description, evaluation, and modification of sentencing policies.
|
From page 147... ...
Under such guidelines defendants who have poor prior records would receive severe sentences not simply because of the effect of prior record on judicial decisions but also because in the past those with poor prior records tended to be black and blacks were sentenced more severely. Past racism would thereby be incorporated in the guidelines through the prior-record variable.
|
From page 148... ...
At the other extreme are guidelines uninformed by considerations of empirical data on past practices or the likely impact of policy choices. While feasible, we view this approach (most closely approximated in past experiences of legislatures in adopting mandatory minimum sentencing laws)
|
From page 149... ...
They should not, however, be viewed as dictating sentencing standards. Rather they should represent a starting point for the application of judgment and expertise.
|
From page 150... ...
DATA DEFINITION There is no simple answer to the question of what data on past practices should be collected. At one extreme, the New Jersey guidelines project codebook contained 847 variables because the project staff "decided that every bit of data could possibly affect sentences, and that therefore no assumptions should be made at the onset to dismiss any data" (McCarthy, 1978:10~.
|
From page 151... ...
Whatever the method used to develop the data base, the resulting data and estimated models are but raw material for informing the development of sentencing standards. Guidelines developers must still confront a large number of policy and technical choices.
|
From page 152... ...
Where charge bargaining is prevalent, the conviction offense is the offense to which the defendant pled guilty, not necessarily the offense that was originally charged. Policy makers must decide whether sentencing standards should be applied to the conviction offense, which may be an artifact of plea bargaining, or to some other offense measure.
|
From page 153... ...
The Minnesota commission "determined that the severity of offenders' sanctions should not vary depending on whether or not they exercise constitutional rights during the adjudication process" (Minnesota Sentencing Guidelines Commission, 1981:13~. In other words, willingness or refusal to plead guilty and waive one's constitutional right to a trial and related rights may not be used to justify departures from applicable guidelines based on conviction offenses.
|
From page 154... ...
In Pennsylvania, for example, offenses against the person are punished substantially more severely in suburban and rural counties than in Philadelphia. The Minnesota Sentencing Guidelines Commission also found evidence of some regional differences in sentencing, especially for offenses against the person.
|
From page 155... ...
For example, persons charged with less serious offenses could be offered charge concessions that would make a prison sentence unlikely, while serious offenders might not be offered any concessions. Preliminary analysis of changing practices in Minnesota suggests that this is what is happening in aggravated robbery cases (Minnesota Sentencing Guidelines Commission, 1982~.
|
From page 156... ...
Most recently adopted statutory presumptive sentencing and guidelines systems fall between these extremes. Approaches for Formatting and Presenting Sentencing Standards Sentencing reform initiatives have taken various approaches in formatting and presenting sentencing criteria.
|
From page 157... ...
The earliest state parole guidelines (in Minnesota, Oregon, and Washington) , and the initial "descriptive" sentencing guidelines (in Denver, Chicago, and Philadelphia)
|
From page 158... ...
The weights derive in part from regression coefficients obtained during efforts to develop a statistical characterization of sentencing practices in Massachusetts. The guideline sentence range in months is given by X plus or minus 50 percent of X
|
From page 159... ...
Such approaches, therefore, may enhance the credibility of the sentencing standards that they express and thereby be more likely to elicit cooperation. This may be particularly desirable when decision makers are not legally obliged to comply with the standards.
|
From page 160... ...
Hence, developers have created their own scales of offense severity; the Pennsylvania sentencing guidelines and the U.S. Parole Commission's guidelines are examples.
|
From page 161... ...
Specificity of Sentencing Standards An important goal of sentencing policy changes is achieving substantial consistency in sentencing patterns while permitting special treatment for special cases. For example, under the presumptive Minnesota sentencing guidelines, the judge is directed to impose sentences from within narrow ranges (plus or minus 5-8 percent from the midpoint)
|
From page 162... ...
The ordinary outliers were a primary target of descriptive sentencing guidelines: the judge, considering imposing a 5-year sentence in a case for which, according to the guidelines, 85 percent of convicted persons receive a sentence of 1-1~/: years, may reconsider and impose a sentence from within the guideline range. To achieve greater consistency in sentencing and at the same time allow sufficient flexibility to accommodate cases presenting special circumstances, guidelines developers have had to address various other technical issues.
|
From page 163... ...
Thus, if the formula yielded 60 months, the guideline range would be 30 to 90 months. At the other extreme, the Minnesota sentencing guidelines range is the point guideline term plus or minus only 5-8 percent, and the Washington parole guideline range is the term of months determined in accordance with the state's sequential calculation plus or minus 12.5 percent.
|
From page 164... ...
c Ranges derived from Minnesota sentencing guidelines grid. Estimated and rounded.
|
From page 165... ...
Under the Minnesota sentencing matrix, cells below the "in/out line" (see Table 3-1) specify a state prison sentence; those above that line specify a sentence other than state prison.
|
From page 166... ...
9 The Minnesota Sentencing Guidelines Commission's dispositional study consisted of data on 2,332 cases sentenced before guidelines: a 42 percent random sample of male offenders convicted and receiving a felony or gross misdemeanor sentence in fiscal 1978 and all females similarly convicted in that year. Counties with large Indian populations were oversampled.
|
From page 167... ...
b The significant number of cases at level VI are presumptive imprisonment cases because of the application of mandatory minimum laws. SOURCE: Minnesota Sentencing Guidelines Commission (1982:18, Fig.
|
From page 168... ...
The offense scaling problem is generally posed as a choice between adoption of statutory offense classifications (either directly in terms of formal offense classes or indirectly in terms of statutory maximum sentences) , and independent development of an offense severity scale.
|
From page 169... ...
So far as the panel is aware, no such multistage sentencing guidelines models have been developed, although some bifurcated models of past sentence outcomes have been estimated (see, for example, Rhodes, 1981~.1° Philosophical Implications The growing interest in the philosophy of punishment in the 1970s has influenced sentencing policy. For example, several recent innovations have expressly embodied retributive premises and rejected the legitimacy of rehabilitative goals of punishment (see Chapter 1~.
|
From page 170... ...
To a modernist, scaling is less important (though not irrelevant) because retributive concerns are but one among many sets of punishment goals that should influence sentencing decisions.
|
From page 171... ...
Parole Guidelines: Recommended Months of Incarceration Before Release on Parole for Adults Offender Characteristics Very Offense Severity Good Good Fair Poor Low ~6 6-9 9-12 12-16 Low moderate 0-8 ~12 12-16 16-22 Moderate 1~14 14-18 18-24 24-32 High 14-20 2~26 26-34 3W4 Very high 2i36 36-48 48-60 60-72 Greatest I 4(~52 52-64 6i78 78-100 Greatest II 52+ 64+ 78+ 100+ SOURCE: U.S. Parole Commission Rules Sec.
|
From page 172... ...
Questions of the practical ramifications of philosophical views of punishment are not new, but such questions have become more widely debated in recent years. When parole and sentencing decisions were mostly invisible and unreviewable, as they were under indeterminate sentencing systems, there was little need to ponder such matters as the systematic role of prior record or social variables in sentencing.
|
From page 173... ...
H ISTORY (high) low emphasis~severity moderate emphasis—criminal history FIGURE ~1 Dispositional models considered by the Minnesota Sentencing Guidelines Commission.
|
From page 174... ...
case study of the politics of sentencing reform in Minnesota and Pennsylvania indicates that: the complexities of developing sentencing guidelines involve not only the technical issues related to the development of statistical models of past sentencing practices and projections of future prison populations, but also the political aspects of the policy-making process. In both states the legislature created a sentencing guidelines commission to promulgate guidelines that would go into effect unless rejected by the legislature.
|
From page 175... ...
The revised guidelines now in effect aroused little opposition because they maintain symbolic acceptance of statewide standards but are broad enough to accommodate traditional local sentencing practices. The voluntary sentencing guidelines that have been adopted in several jurisdictions had neither legislative authorization nor broad support from or involvement of the local judiciary.
|
From page 176... ...
The effect of careful attention to implementation issues, including training the people who must implement new sentencing standards, developing mechanisms that facilitate implementation, and creating procedures for monitoring compliance, is illustrated by the contrast in approach and results in Minnesota and several jurisdictions with voluntary sentencing guidelines. To facilitate successful implementation of its guidelines, the Minnesota Sentencing Guidelines Commission undertook the following activities (among others)
|
From page 177... ...
ENFORCEMENT The legal authority of sentencing standards and the existence, nature, and credibility of enforcement mechanisms also appear to affect the likelihood that the standards will be followed. Because there is little i~ Judge Douglas Amdahl, a member of the Minnesota Sentencing Guidelines Commission and chief judge of the Hennepin County (Minneapolis)
|
From page 178... ...
when the ranges for sentencing are narrow and deviate from prevailing practices in a large percentage of cases. Since these guidelines by definition are voluntary, a primary aim of developers must be to persuade judges that compliance with the guidelines is a good idea and that compliance will achieve important public aims.~3 Presumptive Presumptive sentencing and parole guidelines and statutory sentencing standards have presumptive authority; they are to be observed in the ordinary case and are to be disregarded only under i2 The original Denver guidelines were intended to encompass 8~85 percent of the sentencing decisions in the construction and validation samples (Wilkins et al., 1978~.
|
From page 179... ...
Thus under the federal parole guidelines, the Minnesota sentencing guidelines, and California's Uniform Determinate Sentencing Law, decision makers are required to provide written reasons for decisions contrary to the applicable presumptive standards. However, merely establishing presumptive standards does not necessarily lead to high compliance rates.
|
From page 180... ...
Appellate sentence review appears to provide reasonably searching scrutiny of sentencing decisions in other countries. In the United States, however, there is no tradition of rigorous appellate review of sentences.
|
From page 181... ...
Administrative sentence review of this sort has some advantages over appellate sentence review. Because parole review is not dependent on initiation by a party, it is less subject to collusive evasion of applicable sentencing standards.
|
From page 182... ...
There has been some discussion in Congress of various ways to enhance the Parole Commission's sentence review function. For example, it has been proposed that, in connection with a presumptive sentencing guideline system resembling Minnesota's, parole release be available only in those cases in which a judge has imposed a sentence longer than is provided in the applicable guideline.
|
From page 183... ...
Structuring Sentencing Decisions Such monitoring devices, if well designed, may also be essential in the process of amending sentencing standards. They can provide feedback on the effects of the new standards on the system as a whole and on the congruence between actual and desired sentencing practices.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.