Research on Sentencing The Search for Reform, Volume I (1983) / Chapter Skim
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1 Introduction: Sentencing Practices and the Sentencing Reform Movement
1 Introduction: Sentencing Practices and the Sentencing Reform Movement
Pages 39-68
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From page 39... ...
These developments followed 50 years in which there had been little change in sentencing practices and institutions. When the National Commission on Reform of Federal Criminal Laws reported to Congress in 1970, its sentencing proposals to rationalize and simplify the then-ubiquitous systems of indeterminate sentencing differed little from those of the Model Penal Code developed in the 1950s.
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From page 40... ...
, parole boards and examiners, and prison administrators. The decisions of criminal justice officials at arrest, prosecution, conviction, sentencing, and parole affect the nature and amount of punishment suffered by an offender.
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From page 41... ...
Victim and witness noncooperation is a major cause of charge dismissals in the United States (Institute for Law and Social Research, 1981; Vera Institute of Justice, 1977~. According to the National Crime Survey, 56 percent of violent crimes went unreported in 1978 (including 35 percent of robberies with injury)
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From page 42... ...
The police also possess substantial autonomy in handling serious crimes of violence and investigating organized illegal activities and large property loss or damage (see Manning, 1980; Rubenstein, 1974~. Police are relatively free to decide which complaints to follow up, with what diligence and resources, and to select their means of investigation, using informants, surveillance, undercover, and "sting" operations.
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From page 43... ...
. In vertical charge bargains, a prosecutor agrees to drop the highest charge if the defendant pleads guilty to a less serious charge (e.g., a narcotics trafficking charge is dropped if the defendant pleads guilty to a narcotics possession charge, or a charge of armed robbery is dropped if the defendant pleads guilty to a charge of robbery)
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From page 44... ...
they set minimum, maximum, or actual lengths of jail and prison terms. Where there is a parole release agency, the judge's critical decisions are who goes to prison and for what minimum and maximum terms; where there is no such agency, the judge's decision also determines the actual amount of time served.
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From page 45... ...
Parole boards traditionally make individualized release decisions, taking account of a wide variety of offender characteristics. In establishing uniform criteria for releasing offenders, they, too, face the basic dilemma in criminal justice: How much emphasis should be placed on the seriousness of the conviction offense in attempting to follow the injunction to "treat like cases alike" and how much on the characteristics of the defendant, including prior record and employment status, in predicting whether the release constitutes a danger to the community?
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From page 46... ...
A mandatory minimum sentence law, for example, can easily be avoided if the prosecutor dismisses or never files charges. A determinate sentencing law or sentencing guidelines can be evaded by artful charge bargaining.
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From page 47... ...
Although there is no evidence that prosecutors are better situated or qualified than judges or parole boards to make sentencing decisions, the greater predictability of sentences under the new law afforded prosecutors increased influence on sentences by means of their charging and charge dismissal decisions. Illinois's determinate sentencing law abolished parole release and allowed day-for-day credits for good behavior, but the prisoner receives no vested right to earned good time.
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From page 48... ...
For example, one can reasonably claim the utilitarian goal of crime prevention as the general justification of punishment and still insist that retributive considerations require that punishment be limited to conscious offenders and that the amount of punishment be closely proportioned to the offender's moral culpability.
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From page 49... ...
Criminal codes commonly provide maximum sentences that are designed to permit substantial scope for their discretionary reduction by the parole board and to permit judges to individualize sentences. Both the Model Penal Code (American Law Institute, 1962)
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From page 50... ...
Legislators and public officials have adopted policies that express support for punishment regimes premised on just deserts and similar notions. Section 1170 of the California Penal Code, for example, begins: "The Legislature finds and declares that the purpose of imprisonment for crime is punishment." Section 2 of the act authorizing the establishment of the Oregon parole guidelines provides that the ranges of prison sentences contained in the parole guidelines (1977:Ch.
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From page 51... ...
1005-8-1~. In addition, many states have adopted mandatory minimum sentencing laws that reflect, in part, concern with ensuring more certain and severe sanctions for certain serious offenses.
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From page 52... ...
, subject to negotiated guilty-plea constraints and mandatory sentencing laws and for all convictions following trials. Then, within the constraints of maximum and minimum sentences set by the judge, parole boards (in those jurisdictions that retain parole release)
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From page 53... ...
Parole boards set policies that apply to all state prisoners. Because hearing examiners are dependent
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From page 54... ...
And, although a trial judge's sentencing decisions are seldom subject to meaningful review by appellate judges, the intended length of a prison sentence is subject to reconsideration by the parole board.
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From page 55... ...
sentencing process distinguish it from many of those in Europe: the importance of plea bargaining and the prominence of the prosecutor; the inflation of prison sentence lengths in anticipation of their later reduction by parole boards; and the absence of meaningful appellate sentence review. A common theme in all these features is the relatively greater detachment from politics in European sentencing.
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From page 56... ...
In West Germany, where local panels of judges have authority to release prisoners early, the scope of parole release is similarly narrow (Weigend, 1983~. The lesser reliance on parole authorities to determine the lengths of prison sentences and to shorten the nominal sentences declared by judges has at least two important consequences in Europe: the judge is much more the central figure in sentencing, and sentences that are imposed are very close to the sentences actually served.
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From page 57... ...
It is possible that the failure of appellate sentence review to take hold in the United States resulted in part from the widespread adoption of parole. When parole boards exercised authority over release, judges' sentences were of secondary importance: if parole boards could release a prisoner when they saw fit, case law standards for nominal sentences would have little real meaning.
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From page 58... ...
By 1820 many state legislatures had drafted new criminal codes that prescribed fixed sentences to match the seriousness of the offense. Sentences were long: 40 years for murder, 20 years for arson, and 10 years for burglary were common (Rothman, 1981~.
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From page 59... ...
The reasons for and significance of this development have been variously interpreted. It has been argued that they signified the triumph of Enlightenment ideals and the rejection of inhumane forms of corporal and capital punishment (McKelvey, 1977~; an indictment of a disordered society by Jacksonian reformers nostalgic for a stable but vanished colonial society (Rothman, 1971~; and a precursor, or metaphor, for a surveillant disciplinary society (Foucault, 1978~.
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From page 60... ...
The American Law Institute worked on the Model Penal Code throughout the l950s and completed its work in 1962; in the following years many state legislatures adopted derivative criminal codes. The Model Penal Code and the proposed criminal code of the National Commission on Reform of Federal Criminal Laws (1970)
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From page 61... ...
Between 1975 and January 1982, 11 states abolished parole release for the majority of offenders,4 17 states established administrative rules for release decisions (e.g., parole guidelines) ,5 more than 30 states passed mandatory minimum sentence laws, and, in almost every state, judges experimented with guidelines to structure their own sentencing decisions.
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From page 62... ...
Prisoners, their complaints, and what goes on inside prisons were major catalysts of modern sentencing reform (see, for example, Zimring, 1983~. The Philosophy of Rights and Control of Discretion Modern criminal law and the indeterminate sentencing system took shape in an era when utilitarianism was the philosophical perspective most commonly brought to bear on public policy matters.
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From page 63... ...
These attacks, coupled with the general movement for increased accountability in official decision making, led to studies of whether parole boards followed implicit criteria in parole release decisions and whether those criteria could be expressed in decision rules. A major long-term project demonstrated the feasibility of detailed published criteria for parole release decisions (Gottfredson et al., 1978~.
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From page 64... ...
Disparity and Discrimination No doubt influenced by prison uprisings, rights theories, increasing emphasis on accountability, and decreasing emphasis on rehabilitation (as well as by the widespread availability of computers for social science research, which made elaborate multivariate analyses possible) , researchers undertook many statistical simulation studies to determine whether there was substantial evidence of disparity and racial and class discrimination in sentencing.
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From page 65... ...
. While such disparities were not particularly troublesome when the rehabilitative ideal prescribed sentence variation based on offender characteristics, without that justification the evidence of substantial, unexplained, and often apparently unwarranted disparities in sentencing became a primary rationale for proposals to structure, confine, and monitor the discretion of trial judges and parole boards.
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From page 66... ...
At a time when judicial decision making was under strong attack, "descriptive" guidelines that would articulate and rationalize existing sentencing policies had an appeal that led to their widespread dissemination and adoption. More recently, social science modeling methods and data on past sentencing practice were used by the Minnesota Sentencing Guidelines Commission in developing "prescriptive" guidelines that explicitly altered existing policies and practices.
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From page 67... ...
SCOPE OF THIS REPORT The policy and research developments in sentencing in the past decade; the variety of proposals for changing sentencing practices that are pending in Congress, state legislatures, and administrative agencies; and the newly emerging data on the impact of recently adopted policy innovations suggested the need for an interim review of empirical findings about what may be termed the sentencing reform movement. This report is designed to meet that need.
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From page 68... ...
68 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM and the absence of appropriate research led us to exclude several other subjects from its broad conception of sentencing. For example, we did not examine police arrest and charging practices, bail-setting and pretrial release policies, or the role of public opinion in the establishment of sentencing policies.
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