Research on Sentencing The Search for Reform, Volume I (1983) / Chapter Skim
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2 Determinants of Sentences
2 Determinants of Sentences
Pages 69-125
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From page 69... ...
To date, the general state of knowledge about the factors influencing sentence outcomes remains largely fragmented, and there is no widely accepted theory on the determinants of sentences. Indeed, research on sentencing derives from a variety of different theoretical and disciplinary perspectives.
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From page 70... ...
Social Stability: employment history; marital status; living arrangements; history of drug or alcohol abuse 3. Case-Processing Variables Charge reductions or dismissals; pretrial release status—on bail or detained; attorney type—none, court-appointed, or privately retained; method of case disposition—guilty plea, bench or jury trial; time of guilty plea; presentence recommendations by probation officer, prosecutor, and defense counsel II.
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From page 71... ...
. The "who" variables refer to decisionmaker attributes, particularly attributes of judges and perhaps of probation officers, prosecutors, and defense counsel if they have contributed to the sentence outcome.
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From page 72... ...
For example, this might occur when judges place different weights on the various case attributes or use different attributes in their sentencing decisions. Disparity refers to the influence in sentence outcomes of factors that characterize the decision-making process.
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From page 73... ...
1722, 1980~. Youthfulness can TABLE 2-1 Characterizing Sentence Outcomes in Terms of Disparity and Discrimination Legitimacy of Sentencing Criteria Application of Sentencing Criteria Consistent Inconsistent Legitimate No disparity and Disparity no discrimination Illegitimate Discrimination Disparity and discrimination
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From page 74... ...
But arguments can also be offered that these variables are not legitimate sentencing criteria. It might be argued, for example, that the intensity of offending is high among the young and that they thus pose a serious threat of continued offending.
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From page 75... ...
Such jurisdictional differences may reflect differences in community standards of offense seriousness or punitiveness, or it might reflect local organizational conditions like court overcrowding. Whether these jurisdictional differences are warranted or not depends on the resolution of competing values, such as concern for evenhandedness or uniformity of standards versus the value of preserving local community control.
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From page 76... ...
Under this perspective, convergence of sentencing standards is preferable to con2 While judges are the decision makers typically identified in discussions of disparity, disparity in sentence outcomes can also arise from differences among prosecutors or other criminal justice decision makers.
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From page 77... ...
discuss the possibility of developing more sophisticated formal models of the sentencing process as a basis for improved statistical analyses. However, much work on criminal sentencing has used quite different research methods.
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From page 78... ...
Furthermore, the potential differences in processing cases across jurisdictions, and sometimes even between courts within a jurisdiction, raise important questions about the appropriateness of cross-sectional analyses that assume a single homogeneous process in different settings. Observation and Interviews In our discussion of the use of variables measuring crime seriousness and prior record, we note that problems of measurement error present a difficult obstacle.
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From page 79... ...
This is particularly important in considerations of variables that, despite their small effect in aggregate data, are nevertheless important for conceptual or policy reasons (e.g., racial discrimination)
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From page 80... ...
FINDINGS Despite the growing diversity of factors considered and the increasing methodological sophistication of statistical analyses of sentencing, large portions two-thirds or more—of variance in sentence outcomes remain unexplained. For the portion that is explained, we have reviewed the findings relating to the role of offense seriousness, prior record, race, socioeconomic status, gender, and various case-processing variables.
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From page 81... ...
Statistical techniques are available to adequately address nonlinearities in sentence outcomes while still limiting the analysis to a single sentence type. Correcting for the potential biases arising from variables truncated at zero and selected samples, however, requires that the analysis be extended to include choices among sentence types.
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From page 82... ...
One commonly used scale is that devised by the Federal Administrative Office of Courts (as reported in Hindelang et al., 1975~. Use of such an arbitrary scale raises serious problems in ordering the different sentence outcomes: for example, there may be disagreement on whether 3 or more years on probation is necessarily more onerous than 6 months of incarceration.
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From page 83... ...
As a result, the effects on sentence outcomes of the included indicators of offense seriousness and prior record are particularly vulnerable to biases arising from the excluded elements. Offense Seriousness Typically, offense seriousness measures are limited to use of the legally defined offense types or the statutory maximum penalties for each offense type.
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From page 84... ...
Much research thus focuses on the role of officially available adult prior records in sentence outcomes. There is currently considerable debate over the extent to which juvenile records are actually used in sentencing adults and over the propriety of using those records.
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From page 85... ...
In characterizing the nature of these biases, the discussion here is simplified by treating offense seriousness and prior record as though they were single variables, each resulting from some linear combination of a variety of different elements. Under this character~zation, when important elements contributing to the unidimensional measures of seriousness or prior record are not measured, there is measurement error in the main variable of interest, which results in measurement error biases in the estimated effects of these variables on sentence outcomes.7 The bias in the estimated effects of offense seriousness depends on the nature of the measurement error.
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From page 86... ...
and would result in underestimates of the effect of true seriousness on sentence outcomes. Alternatively, observed seriousness and its measurement error might 9 For error in measurement that is positively related to the observed value of seriousness, increasingly larger values of observed seriousness involve increasingly larger errors added to the true value of seriousness.
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From page 87... ...
Prior record is often measured in terms of its length typically the number of prior contacts with the criminal justice system without regard for the content of that record. There is some evidence to suggest that longer prior records are more likely to involve less serious offenses.
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From page 88... ...
DISCRIMINATION BY RACE There are two types of evidence often cited in support of the assertion that there is racial discrimination in sentencing. The first is the important social fact that blacks are in prisons in numbers disproportionate to their representation in the population.
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From page 89... ...
These behavioral differences may interact with patterns in the deployment of law enforcement resources and differing rates of apprehension, conviction, and imprisonment for various crime types to affect the racial composition of prisons. There might also be racial discrimination in the arrest process, the charging process, or the sentencing decision; or decisions by parole authorities may result in longer terms for black prisoners.
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From page 90... ...
These data are consistent with the assertion that blacks are overrepresented in prison populations primarily because of their overrepresentation in arrests for the more serious crime types, an argument counter to the assertion that overrepresentation results largely from discrimination at postarrest stages of the criminal justice system. One problem in generalizing from such a result is the difficulty in accurately characterizing racial discrimination through global statements about the criminal justice system in the United States as a whole.
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From page 91... ...
These less serious offenses leave more room for discretion in sentencing decisions and thus greater opportunity for discrimination. Future research should focus on these less serious offenses.
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From page 92... ...
Our overall assessment of the available research suggests that factors other than racial discrimination in the sentencing process account for most of the disproportionate representation of black males in U.S. prisons, although discrimination in sentencing may play a more important role in some regions, jurisdictions, crime types, or the decisions of individual participants.
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From page 93... ...
To the extent that race is associated with offense seriousness or prior record, with blacks having more serious offenses or worse prior records, the race variable will pick up some of the effect of these omitted variables, resulting in overestimates of the discrimination effect. It is doubtful, however, that the large magnitude of the effect found in these early
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From page 94... ...
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From page 95... ...
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From page 96... ...
Even in these contexts, however, offense seriousness and prior record remain the dominant factors in sentence outcomes (Hagan and Bumiller, Volume II)
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From page 97... ...
Similar arguments would apply to the incorrectly measured variable of prior record. A number of studies have found associations of race with offense seriousness and prior record.
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From page 100... ...
a Robbery is usually treated as one of the serious violent crimes, but because it is different from other violent crimes, it is treated separately in this table. differences in prior record, with blacks generally having more serious prior records than whites.
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From page 101... ...
Aside from the obvious race differences, Kleck (1981) notes that interracial offenses are also more likely to involve strangers, more likely to involve other i3 Because of insufficient cases, there are no studies that separately examine sentence outcomes for white offenders against black victims.
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From page 102... ...
The processing of criminal cases through the various stages in the criminal justice system is like a sequence of filters, screening cases from the system according to various criteria related to case attributes. As indicated in Table 2-6, only 13 of every 100 felony arrests in Washington, D.C., in 1973 resulted in felony convictions, while another 16 resulted i4 Unfortunately, the general lack of data for interracial offenses involving whites against black victims does not permit evaluating whether the particular race of the victim in interracial crimes is important, independent of other considerations like greater involvement of strangers, of other felonies, and of victim provocation in interracial crimes.
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From page 103... ...
For the unmeasured element of offense seriousness, on the other hand, there is already bias in the estimated effects resulting from measurement error alone; this bias, however, is reversed by sample selection. As illustrated in the first column of Table 2-7, selection biases can arise even when there is no correlation between the unmeasured and measured variables in the original population.
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From page 104... ...
104 Cal C)
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From page 106... ...
Selection biases associated with this measurement error will arise if, in addition to considering seriousness as a basis for selection and sentencing, there is also racial discrimination throughout criminal justice processing for example, with blacks more likely than whites to be charged, less likely to have their cases dismissed, and more likely to be sentenced severely regardless of offense seriousness. The whites who are selected, then, are likely to have committed more serious offenses than selected blacks.
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From page 107... ...
In the absence of adequate controls for unobserved differences in seriousness, some of the contribution of more serious offenses by selected blacks to sentences would mistakenly be attributed to race, thus exaggerating, or overestimating, the effect of discrimination against blacks in sentencing. The exact nature of the errors in estimates of the effect of racial discrimination at sentencing, arising from any selection bias associated with measurement error in offense seriousness, depends critically on both the direction and magnitude of the contribution of seriousness and discrimination in prior selection processes.
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From page 108... ...
the greater the fraction of the variation in sentence outcomes attributable to incorrectly measured variables like offense seriousness and prior record; 2. the smaller the fraction of the variation in sentence outcomes attributable to the correctly measured variable, like race; 3.
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From page 109... ...
attributable to the measurement errors. The evidence suggests a primary role for the incorrectly measured variables of offense seriousness and prior record in influencing sentence outcomes and a nontrivial relationship between these mismeasured variables and race.
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From page 110... ...
The evidence of discrimination on grounds of social or economic status is, however, equivocal. Like research on racial discrimination, this much smaller body of research is characterized by inconsistent results.
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From page 111... ...
or prior incarcerations (Burke and Turk, 1975~. When such correlations are combined with errors in measuring offense seriousness or prior record, or with a failure to include these variables in the analysis, the estimates of the effect of status on sentence outcomes are vulnerable to the same serious biases that plague results on racial discrimination.
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From page 112... ...
The resulting likely measurement error in the status variable contributes to biases in the estimates of the effect of a defendant's status on sentence. Moreover, research on this subject is hampered by the relative lack of variation in socioeconomic status among defendants charged with similar offenses.
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From page 113... ...
However, when there are independent measurement errors resulting from incomplete measures of seriousness, the unobserved dimensions of seriousness cannot be adequately controlled, and some of the effect of seriousness on sentence outcomes would be picked up by sentenced women with their more serious offenses. This would diminish understate the true difference in sentence outcomes between men and women.
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From page 114... ...
The evidence on the role of attorney type is mixed and does not support a general conclusion that attorney type is independently related to sentence outcomes. The strongest and most persistently found effect of case-processing variables is the role of guilty pleas in producing less severe sentences.
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From page 115... ...
To the extent that offense seriousness is poorly measured, independent measurement error would contribute to underestimates of the effect of seriousness and overestimates of the effect of trial on severe sentences. This measurement error bias will be large relative to the true effect of guilty pleas when: offense seriousness in sentence plays a large role; the role of disposition type in sentences is small; the error in measuring seriousness is large; or the correlation between seriousness and disposition type is large.
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From page 116... ...
The preponderance of evidence suggests that mode of disposition probably does exercise an independent effect on sentence outcomes. It is a common finding that defendants held in pretrial detention receive substantially harsher sentences than those who are free awaiting trial (Clarke and Koch, 1976; Foote et al., 1954; Goldkamp, 1979; Greenwood et al., 1973; Landes, 1974; Lizotte, 1978; Morse and Beattie, 1932; Rankin, 1964; Spohn et al., 1982~.
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From page 117... ...
While most studies attempt to control for any spurious role of pretrial detention by including offense seriousness and prior record in their analyses, these variables are often poorly measured. Independent measurement error in either of these important variables will yield underestimates of the contribution of seriousness or prior record and overestimates of the contribution of pretrial detention to severe sentences.
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From page 118... ...
The association of pretrial detention with poorly measured variables like offense seriousness and prior record raises the possibility of biases in either direction in the estimated effect of pretrial detention on more severe sentence outcomes. While there appear to be both empirical evidence and theoretical reasons to support the view that pretrial detention has an independent influence on sentences, further research is needed to establish the existence and magnitude of such a relationship.
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From page 119... ...
The crudest of these is the matching strategy that identifies subgroups of cases sharing similar characteristics (e.g., offense, prior record) and compares the sentencing patterns of different judges for each subgroup of cases (e.g., Green, 19614.
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From page 120... ...
A few have shown no judge effect (e.g., Rhodes, 1977~. One reason for the lack of judge effects in some studies of sentence outcomes is that such studies include case characteristics that may anticipate or reflect judicial reaction.
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From page 121... ...
Federal judges in several courts meet regularly to discuss their sentencing decisions. Before each meeting every council member receives presentence reports on the offenders to be discussed at the meeting.
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From page 122... ...
Motivational factors like victim provocation (Harvey and Engle, 1978) and the extent of planning or forethought involved (Harvey and Engle, 1978; Joseph et al., 1976)
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From page 123... ...
Several studies have identified the importance of the recommendations by the prosecutor or probation officers in determining sentence outcomes (Carter and Wilkins, 1967; Hagan, 1975, 1977; Hagan et al., 1979; Myers, 1979; Unnever et al., 19804. Variations in sentences among judges and even for the same judge thus may arise from variations in the individual prosecutor or probation officer making sentence recommendations in different cases.
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From page 124... ...
It is also important to remember that sentencing decisions are not made in isolation; they occur in the context of a variety of earlier decisions that potentially influence sentence outcomes. As a result, when attempting to sort out the determinants of sentences, one cannot focus only on the outcomes of the convicted cases that appear before a judge for sentencing.
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From page 125... ...
, and Berk and Ray (1982) for a more detailed treatment of the ways in which explicit consideration of the broader case-processing system can help to alleviate the biases arising from measurement error and sample selection.
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