Research on Sentencing The Search for Reform, Volume I (1983) / Chapter Skim
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Pages 1-38
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From page 1... ...
BACKGROUND The decade of the 1970s was characterized by a variety of efforts to modify sentencing practices, to establish more detailed criteria for sentencing, and to establish new sentencing institutions and procedures. These reforms have included: · Abolition of plea bargaining · Plea-bargaining rules and guidelines · Mandatory minimum sentences · Statutory determinate sentencing · Voluntary/descriptive sentencing guidelines · Presumptive/prescriptive sentencing guidelines
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Indeterminate sentencing systems were in widespread use until the 1970s and had not changed materially for 50 years: plea negotiation was the predominant but little acknowledged mode of disposition of criminal cases; statutes set upper limits on the sentences to be imposed for each offense, but judges rarely invoked those limits and had no other guidance when setting sentences; most sentences were indeterminate; and the decisions of parole boards were immune from review or appeal. By 1982, however, most jurisdictions had made dramatic changes in their sentencing practices and institutions.
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Official rates of reported crime had increased almost steadily since the early 1960s, and political candidates, public officials, and others were repeatedly expressing frustration at the criminal justice system's inability to control crime. Among the targets of public frustration were "lenient" judges and parole boards that were said to release dangerous people into the community without adequate concern for public safety.
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. Still others attempted to set standards for prison sentences (e.g., determinate sentencing laws and presumptive sentencing guidelines)
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Social science research has also been used in assessing the impact of various sentencing reforms. In at least one reform, the formulation of the Minnesota sentencing guidelines, design and impact issues have been directly linked: estimates of effects on prison populations were used explicitly in designing the new sentencing standards.
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Among the most common have been observation of the behavior of criminal court participants and interviews with them. Such research is particularly useful in identifying variations in case processing across jurisdictions and in suggesting the key determinants and processes leading to sentence outcomes.
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· The various methods used to structure sentencing decisions, especially sentencing guidelines, and the role and validity of such methods. · The effects on sentencing outcomes and system operations of attempts to structure the sentencing process and sentencing decisions.
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Disparity refers to the influence in sentence outcomes of factors in the decision-making process. The most commonly cited examples include disparity across judges within the same jurisdiction or across entire jurisdictions.
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The case variables include attributes of the offense, principally offense seriousness (e.g., crime types charged or convicted and victim harm) and quality of evidence (e.g., number of witnesses and existence of tangible evidence)
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Some researchers focus on the variations in the magnitude of only one sentence type—typically the length of prison terms for incarcerated offenders. Other studies collapse different sentence types into a single arbitrary scale of sentence severity.
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THE PRIMARY DETERMINANTS OF SENTENCES Using a variety of different indicators, offense seriousness and offender's prior record emerge consistently as the key determinants of sentences. The more serious the offense and the worse the offender's prior record, the more severe the sentence.
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Despite these biases, offense seriousness and prior record are consistently found to have strong effects on sentences. The consistency of these results under a variety of different biasing conditions increases confidence in the validity of the conclusion that offense seriousness and prior record are the primary determinants of sentence outcomes.
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The available research suggests that factors other than racial discrimination in sentencing account for most of the disproportionate representation of blacks in U.S. prisons, although racial discrimination in sentencing may play a more important role in some regions or jurisdictions, for some crime types, or in the decisions of individual participants.
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These data are consistent with the assertion that blacks are overrepresented in prison populations primarily because of their overrepresentation in arrests for 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 data 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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These studies were seriously flawed by statistical biases in the estimates of discrimination arising from failure to control for prior record, offense seriousness, and other important variables that affect case disposition. To the extent that race is associated with offense seriousness or prior record, with blacks committing more serious offenses or having worse prior records, the variable of race would have picked up some of the effect of the omitted variables and produced overestimates of the discrimination effect.
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Even in these contexts, however, offense seriousness and prior record remain the dominant variables in sentence outcomes. Despite the substantial improvements in addressing the problem of omitted variables, recent studies are still subject to potential biases arising from measurement error and sample selection.
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The strength of the conclusions drawn from the existing body of research, like those on race and socioeconomic status, must be moderated by the potential biases arising from errors in measuring seriousness and prior record and from possible selection effects resulting from the differential filtering of cases to the sentencing stage.
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It is possible, however, that the apparent relationship between pretrial detention and harsher sentences may be at least partially spurious. The association of pretrial detention with poorly measured variables like offense seriousness or prior record raises the possibility of biases in either direction in the estimated effect of pretrial detention on sentence severity.
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It thus would be surprising if type of counsel had a consistent effect across jurisdictions on sentencing outcomes. Attorney type is also likely to vary with offense type and with the prior criminal record of the defendant.
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In a particularly heinous crime, for example, the viciousness of the crime alone may be enough to lead to incarceration. In less vicious crimes, a wide variety of factors, including the defendant's prior criminal record and general community ties, may enter the decision whether to imprison.
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Development of such "descriptive"3 sentencing guidelines involved several steps: first, data collection on a sample of cases sentenced in the 3 Terminological confusion in characterizing sentencing guidelines arises because they vary on two important dimensions—their legal authority and the role of empirical research in their conception and development. Depending on their use of empirical data on past sentencing practices and on whether the underlying goal is to codify existing practices or to establish new sentencing policies, guidelines have been characterized as "descriptive" and "prescriptive." Neither of these terms is literally accurate: all guidelines are statements of policy or normative choices and to date most have used empirical data on existing practices in their development.
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While prior record and offense seriousness have been found to be the primary determinants of sentences for virtually all judges, research also suggests that judges give different weights to these common factors, emphasize different aspects of offense seriousness and prior record, and consider different additional variables in sentencing. In instances in which the sentencing patterns of the judges in a jurisdiction vary widely across judges, a model may provide a statistical average of their sentences, but it does not necessarily represent an "implicit policy" with which any of the judges would agree.
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For example, to eliminate racial discrimination, if it is found, one must decide whether to adopt the existing standard for sentencing blacks, adopt that used for sentencing whites, or choose a new standard to be applied uniformly to everyone. Other important policy choices cannot be avoided in translating data on past sentencing practices into sentencing standards; even adoption of "descriptive" sentencing criteria that involve no explicit alterations from the estimated model of past practices entails policy judgments on issues that have traditionally been hidden.
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on which applicable sentences are easily located (e.g., Minnesota's sentencing guideline grid) , or should more complicated approaches be used that require more complex calculations for each sentence (e.g., New Jersey's sentencing guidelines)
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Efforts to answer such questions necessitate attempts to project the anticipated effects of changes from past practices as a vital part of any sentencing policy change. DEVELOPING, IMPLEMENTING, AND ENFORCING NEW SENTENCING POLICIES Sentencing is a complex process involving discretionary decisions by many people.
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Mandatory sentence laws can be frustrated by prosecutors who fail to charge the predicate offense or by judges who make "findings of fact" that essential elements of the predicate offense have not been proven. Under sentencing guidelines and statutory determinate sentencing laws with presumptive authority and under mandatory sentencing laws, prosecutors and defense attorneys may be able to circumvent applicable standards through charge bargains.
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Thus far, sentencing policy initiatives have possessed three levels of legal authority. Voluntary sentencing guidelines (like those in Denver)
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We have reviewed the results of evaluations of reform efforts directed at eliminating or controlling plea bargaining, structuring judicial sentencing decisions through mandatory or determinate sentence provisions or sentencing guidelines, and eliminating or structuring parole release .
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In contrast to prosecutors and parole board members, judges are seldom subject to effective organizational controls. With voluntary guidelines, studies have found no evidence of systematic judicial compliance; with changes directly mandated by statute, as in the cases of mandatory minimum and determinate sentencing laws, studies have found formal (but not necessarily substantive)
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However, the trend has been gradual and predates implementation of the determinate sentencing law and so may not be due entirely to the new law. Changes in sentencing outcomes resulting from sentencing guidelines present a mixed picture.
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First, prison population increases have occurred in states that have not systematically altered sentencing laws and practices as well as in those states that have done so. Second, in the one instance in which long-term data on prison populations were examined as part of an evaluation of the impact of sentencing law changes, California's determinate sentencing law appears to have continued a trend that was under way prior to adoption of that law.
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The validity of the conclusions of many impact studies is limited because of their failure to control adequately for changes in the mix of cases before and after the change takes effect. A variety of factors, including measures of the seriousness or harm involved in offenses and the prior record of offenders, affect sentencing outcomes independently of any sentencing reform.
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This increase far exceeded the growth in the civilian population: the rate of incarceration in state and federal prisons climbed from 95 per 100,000 population in 1972 to 154 per 100,000 in 1981. The increase is associated with demographic shifts as the post-World War II baby boom generation reached the age of highest imprisonment rates and also with a possible trend toward increased punitiveness, reflected symbolically by widespread enactment of mandatory minimum sentencing laws.
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The long-term effects of changes in sentencing policy on prison populations can be estimated through demographic-specific and crime-typespecific flow models and through microsimulation modeling techniques. Disaggregated flow models that treat the criminal justice system as a sequence of stages that process defendants as "units of flow" often
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The Minnesota Sentencing Guidelines Commission fruitfully made use of such a model in developing its guidelines. Projection techniques are still in relatively early stages of development and are limited by the uncertainty of behavioral responses within the criminal justice system and by limitations on available data.
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RESEARCH AGENDA The issues involved in sentencing reform are such that it is not reasonable to anticipate that research will soon provide the "solution" to any jurisdiction's sentencing problems nor suggest a single "optimum" sentencing policy. Choices among alternate sentencing policies inherently involve value choices and will inevitably reflect political considerations within a jurisdiction.
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Most sentencing policy changes are likely to result in only partial compliance by justice system personnel. It is necessary to understand better the extent, nature, and sources of variation in the responses of practitioners, including the development of estimates of the effects of different forms of legal authority, monitoring practices, and enforcement mechanisms in effecting a policy change.
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From page 38... ...
Each of these changes represents an opportunity to discern how the various actors involved in the sentencing process react to the change and how the change affects their practices. Such knowledge is valuable in providing feedback both to the jurisdiction making the change and to other jurisdictions considering similar policies.
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