Research on Sentencing The Search for Reform, Volume II (1983) / Chapter Skim
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6 THE POLITICS OF SENTENCING REFORM: SENTENCING GUIDELINES IN PENNSYLVANIA AND MINNESOTA
6 THE POLITICS OF SENTENCING REFORM: SENTENCING GUIDELINES IN PENNSYLVANIA AND MINNESOTA
Pages 265-304
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From page 265... ...
Among these reforms was the legislative creation of state sentencing commissions to develop and implement guidelines to structure sentencing decisions. In 1978 two states, Minnesota and Pennsylvania, adopted this route to change.1 The Minnesota commission's guidelines were accepted and have been in effect since May 1980.
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From page 266... ...
Under indeterminate schemes legislatures established very broad policies -- generally through statements of purpose, establishment of maximum sentences, and authorization of general sentencing procedures -- and left vast discretion in the hands of sentencing judges and parole boards to decide on the type and amount of punishment appropriate in individual cases. In such a system the goal of protecting society through the rehabilitation of criminal offenders and their incapacitation until they are rehabilitated are the principal considerations in
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From page 267... ...
These criticisms led legislators and the legal and professional communities to seek to replace the indeterminate system with one that established explicit standards for the amount of punishment to be imposed under normal circumstances on persons convicted of different types of crimes. But establishment of explicit sentencing standards that control or structure discretion and reduce disparity opened the door to disagreement over the aims of punishment, who should establish the specific standards to be applied (the legislature, parole board, or another administrative body)
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From page 268... ...
And although in 1978 both states created sentencing guidelines commissions, existing institutional arrangements and thus the reasons for the resulting legislation differed. Minnesota Prior to 1978 Minnesota had an indeterminate sentencing law that divided decision-making authority between the courts and the parole board.
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From page 269... ...
, although it was designed to maintain the average time currently being served and the current level of prison populations. It would have eliminated the parole board but would not have affected judicial discretion over the probation decision.
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From page 270... ...
The house conferees, however, were divided. Moe, fearful that legislative term-setting would ultimately increase sentence severity, advocated a dual concept with dispositional guidelines to be established by a sentencing commission and durational guidelines established by the parole authority.
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From page 271... ...
To the corrections bureaucracy and the defense bar, less concerned with discretionary authority than with warding off increased severity, the guidelines seemed to offer a better prospect than legislatively set flat-time sentences. Even the parole board had won something -- temporary survival and a seat on the sentencing commissions Pennsylvania In Pennsylvania the establishment of a sentencing guidelines commission was also a compromise, but it stemmed from a different set of pressures emanating from a different distribution of discretion.
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From page 272... ...
Pressure for sentencing reform came from several sources, focused on efforts to reduce judicial discretion and increase sentence severity, and centered on proposals for a mandatory minimum sentencing law that had wide symbolic appeal by looking tough on crime but affected the sentences of only the most serious repeat felons. In 1976 the senate passed a mandatory minimum sentencing bill that was then rejected by the house of representatives on the last vote of the session.
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From page 273... ...
Prison officials avoided the prospect of vast overcrowding posed by the mandatory minimum bill. Liberals had sought and won an opportunity to reduce the vast disparity and judicial abuses through a more comprehensive and flexible sentencing reform than mandatory minimum sentences.
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From page 274... ...
The Pennsylvania commission's broad and ambitious mandate made the commission responsible for creating guideline sentences for both felony and misdemeanor offenses but left intact the parole board's authority The object of reform was the judiciary's vast discretionary authority. Supporters of mandatory minimum sentences had attempted to deal with the problem by rigidly fettering judges' dispositional authority in sentencing a limited but politically visible fraction of the offender population.
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From page 275... ...
The legislation made no mention of considering corrections facilities or costs, leaving the issue of severity effectively unresolved. The guidelines were to specify a orange of sentences applicable to crimesH of a certain degree of seriousness, the range of sentences of increased severity for defendants previously convicted of felonies or of crimes involving a deadly weapon, and deviations from the range of applicable sentences due to the presence of aggravating or mitigating circumstances.
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From page 276... ...
The Pennsylvania Commission on Sentencing was to consist of four legislators; four judges appointed by the chief justice; and a prosecutor, a public defender, and a criminologist or law professor appointed by the governor. The exclusion of private citizens and inclusion of legislators was in keeping with Pennsyl vania's political tradition of limited citizen participation and of policy making as the province of professional politicians.
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From page 277... ...
Although the commission was not without internal tensions, it functioned harmoniously for the most part and permitted itself to be guided by its staff. The MSGC staff was able to articulate clearly the complexity of the issues the commission faced, to focus the commission's attention on the policy choices, to provide a bridge between the language and concepts of social science and law as it made research findings accessible to nonsocial scientist commission members, and to press the commission to make decisions.
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From page 278... ...
The MSGC quickly agreed to include prior felonies and the offender's custody status at the time of the current offense. It agreed to exclude explicitly all social status factors (e.g., education, marital status, and employment)
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From page 279... ...
The commission's original guidelines after several divided votes excluded social status factors from both the criminal history score and a list of aggravating and mitigating circumstances for which departures from the guidelines were justified, but the commission made no statement in the guidelines with respect to this exclusion. The third guidelines explicitly permit their consideration.
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From page 280... ...
Judges could also go outside the guidelines if an additional "compelling reasons were found for doing so. In the third set of guidelines the list of aggravating and mitigating circumstances was eliminated, permitting judges to consider social status factors in sentencing.
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From page 281... ...
Key Elements in Designing the Guidelines Minnesota In interpreting the legislative mandate and developing guidelines, three interlocking elements were the keys to the outcome of the Minnesota commission's work: interpretation of the law as imposing an absolute limit on prison populations; research and its uses in policy development; and a strategy of public involvement. The commission was convinced early by staff arguments charting an overall strategy that the guidelines should represent both a change from the past sentencing policy and a new approach to the way guidelines were developed.
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From page 282... ...
The MSGC's allocation policy was only feasible, however, if it was accompanied by accurate estimates of the effects on the prison population of various policies and the support of the interest groups that would be affected by the guidelines. The MSGC's projection of prison populations required research consisting of three components: a dispositional study, a durational study, and a simulation or population projection model to predict the impact of various potential policy options under consideration on state and local corrections facilities.
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From page 283... ...
Consideration of other factors contributing to sentence variation indicated the presence of modest regional differences (but not the substantial difference in urban and rural sentencing severity that had been anticipated) , the absence of systematic bias by race and gender, and the association of employment but of no other social status factors with sentencing in Minnesota.
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From page 284... ...
Pennsylvania The Pennsylvania commission had a nearly impossible political task -- creating guidelines that would simultaneously hold prison population constant, reduce disparity, and limit judicial discretion -- given its mandate and the existing sentencing system, regional disparity, and extensive judicial discretion. In considering the prison population/severity level question, the Pennsylvania commission had to face the dilemma that the legislature had failed to resolve.
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From page 285... ...
By the time the third guidelines were formulated, their function had become largely symbolic: to affirm the desirability of statewide policy limiting judicial discretion, to serve as a common starting point in determining minimum sentences, and to provide the basis for the appellate review of sentences, from which narrower standards may gradually develop. In the third round of guidelines development, several commission members continued to express concern about the impact of the guidelines on the prison population.
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From page 286... ...
When judges and prosecutors around the state vehemently protested the leniency of guidelines that would have reduced sentence severity in their jurisdictions, the commission revised the guidelines prior to submitting them to the legislature in January 1981. Even the second guidelines' however, would have caused a substantial shift in prison populations.
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From page 287... ...
, the guidelines would increase sentence severity for felony convictions across the state, by about the same amount as a pending mandatory minimum sentencing bill that was subsequently adopted (see Table 6-4)
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From page 289... ...
They informally agreed that the guidelines would provide presumptive sentences within relatively narrow ranges, that the severity of the punishment for some offenses against persons would increase but that punishment for most offenses would be close to the statewide mean, and that prison populations would not substantially increase. The chair did not view constituency building as necessary; several members lacked the time or interest in making the effort that would have been required.
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From page 290... ...
An explicit statewide policy increasing both the proportion of person offenders to be incarcerated and their sentence lengths while holding the prison population constant meant a radical increase in the number of offenders from Philadelphia and Pittsburgh in state prisons and a ~bumping" of property offenders from suburban and rural counties into the already overcrowded urban jails. Given regional jealousies and the substantial increase in the costs to some counties that such a change implied,14 it is doubtful that even an aggressive campaign to develop support and openly discuss these issues would have resulted in compromise or agreement on meaningful sentencing guidelines.
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From page 291... ...
Guidelines were no longer viewed by many legislators as the less desirable alternative to mandatory minimums; they could be regarded as a supplementary crime-fighting measure. Second, the commission had addressed specific objections to the earlier guidelines.
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From page 292... ...
The public defenders came around when they were convinced that they had limited the effects of prior misdemeanors and juvenile adjudications on criminal history scores and that their clients would gain by a policy of holding Prison populations constant. _ , , _ The judges were divided, and so were neutralized as an important potential source of opposition.
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From page 293... ...
The second guidelines, however, would have increased prison populations but reduced sentence severity for rural, suburban, and small-town property offenders; continued to restrict judicial discretion; and failed to satisfy the Philadelphia district attorney's demand for certainty or severity in treating offenders convicted of violent offenses. The changes undermined the integrity of the guidelines and proposed an irresponsible policy to the legislature but salvaged the guidelines concept through legislative deferral and revision.
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From page 294... ...
Even a modest level of compliance with the normal guidelines sentences, however, would result in increased prison and jail populations. Although the legislature has approved a new bond issue to increase prison capacity, short-term increases in prison populations are likely to necessitate more case dismissals, charge reductions, and sentences in the mitigated range or below the guidelines -- or the adoption of an emergency early release mechanism to reduce prison overcrowding.
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From page 295... ...
The commission bought time and subsequently heightened awareness of the dilemmas and policy choices involved in simultaneously seeking to reduce disparity, increase severity, and hold down prison populations and costs. When the choice was finally clear, the legislature made a symbolic gesture toward disparity reduction by adopting guidelines with broad ranges and made a real commitment to increased severity and the associated costs of an expansion in prison capacity.
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From page 296... ...
The Pennsylvania statute creating the guidelines commission did not alter sentencing practices in any important ways. The statute retained judicially determined minimum and maximum sentences as well as release decisions determined by the parole authority.
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From page 297... ...
But under a policy of determinacy the legislature can, and the California experience indicates that the legislature will, under public pressure, increase sentence severity without providing safety valves for increased prison populations. Guidelines represent an uneasy intermediate position.
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From page 298... ...
These include the relative contributions of ideology and of group interests in changing criminal justice system policies and practices; the relationship of recent sentencing reform efforts across the United States to broader political, social, and economic changes occurring in this nation; and an explanation of the movement toward determinacy at this time. Such a perspective on the sentencing reform movement and its outcomes, however, requires I
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From page 299... ...
Interviews were conducted in Pennsylvania between March and May 1981 with all members of the original commission except Robert Colville, with several legislators and staff members, with representatives of the Pennsylvania Prison Society, Women Against Rape, the District Attorneys' Association, with the commissioner of corrections, and with John Kramer, Executive Director, and Robin Lubitz, Research Director, of the Pennsylvania Commission on Sentencing. In March 1982 additional interviews were conducted with the new chairman, Anthony Scirica, commission members Terrence McVerry and Frank Hazel, and John Kramer.
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From page 300... ...
, who is now chief justice of the supreme court; and Russell Olson, of the third district. The governor's appointments included Jan Smaby, a Comunity Corrections Act administrator for Hennepin County; Barbara Andrus, a black community activist; Steve Rathke, a young prosecutor from Crow Wing County and a political activist with experience as a senate staff member; and William Falvey, the public defender of Ramsey County (St.
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From page 301... ...
, who had been an active supporter of the guidelines approach as president of the Pennsylvania Joint Council on the Criminal Justice System; John O'Brien of the Allegheny County (Pittsburgh) court of common pleas; Merna Marshall and Curtis Carson (the only black member)
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From page 302... ...
Thus the earlier projection figures, by underesti mating actual sentence severity, had underestimated the decline in the proportion of offenders that would be imprisoned and overestimated the increase in sentence length that would result from the guidelines.
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From page 303... ...
and Sheriff James Trudeau to the new law enforcement seat created by the legislature to replace the seat formerly held by the chair of the parole board. He named Rathke chair.
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From page 304... ...
Minnesota Sentencing Guidelines Commission, St.
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