Research on Sentencing The Search for Reform, Volume II (1983) / Chapter Skim
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7 SENTENCING REFORMS AND THEIR IMPACTS
7 SENTENCING REFORMS AND THEIR IMPACTS
Pages 305-459
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From page 305... ...
California "abolished" parole and set detailed statutory criteria for judges imposing prison sentences on convicted offenders, raising the possibility that much of the power in determining sentence outcomes would thereby be shifted to prosecutors through the charging and plea negotiation processes. Illinois 305
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From page 306... ...
The next section is concerned with the impact of sentencing guidelines: both the descriptive variety first developed in Denver and their prescriptive cousins promulgated by the Minnesota Sentencing Guidelines Commission. The final section discusses the abolition of parole and parole guidelines.
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From page 307... ...
Was the flow of cases through the system changed; did guilty plea rates, trial rates, dismissal rates, charging rates, and indictment rates change, in what directions, and for what categories of offenders and charged offenses.
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From page 308... ...
For many years, it was a dirty secret and required that defendants be thespians who would affirm in court, before lawyers and judges who knew better, that guilty pleas were wholly voluntary, the consequence of contrition, and not induced by assurances of leniency. Plea bargaining has now been legitimated by the Supreme Court and has become overt.
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From page 309... ...
. Restrictions were also placed on negotiated charge reductions in New York's mandatory sentencing law for drug offenses (Joint Committee, 1977)
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From page 310... ...
There was early ambiguity about the legitimacy of charge bargaining, but the policy was soon clarified: Charge dismissals or reductions as inducements to guilty pleas were forbidden; unilateral charge dismissals for good faith professional reasons were permitted. The Alaska Judicial Council evaluated the impact of the abolition in Anchorage, Fairbanks, and Juneau (Rubinstein et al., 1980)
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From page 311... ...
The trial rate increased, but the absolute number of trials remained small; (4) Sentence severity generally did not increase, except for drug offenses and less serious offenses committed by offenders with modest criminal records; and (5)
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From page 312... ...
312 TABLE 7-1 Description of Data Available for "Cases" and Defendants in Evaluation of Alaska Plea-Bargaining Ban A Number of "CasesH and Defendants Number of Number of Years "Cases Defendants Both Years 3,586 2,283 Arrests 3,483 N/A Information/Indictments 103 N/A Year 1 1,815 N/A Arrests 1,776 N/A Information/Indictments 39 N/A Year 2 1,771 N/A Arrests 1,707 N/A Information/Indictments 64 N/A B
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From page 313... ...
There is thus every reason to suspect that the "case" is not a meaningful unit for characterizing case processing before the ban. If sentence and charge bargaining did substantially disappear after the ban, the judges' sentencing decisions would appear no more inherently related to the number of charges, or cases, than before Many of the findings based on comparison of dispositions in different cities, years, and offense types may be artifactual.
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From page 314... ...
In Fairbanks, sentence recommendations declined from a third of guilty plea charges to 6 percent. In Juneau sentence recommendations declined the least, from over half of guilty plea charges before the ban to 25 percent afterward.2 Interview respondents "agreed with the statistical finding that sentence bargaining had been essentially terminated" (Rubinstein et al., 1980:93)
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From page 315... ...
. Charge Bargaining and Other Circumvention Lawyers and judges have personal and bureaucratic interests that may be served by the expeditious disposition of cases.
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From page 316... ...
In the face of an effective sentence bargain ban, one might expect to see overt or covert charge bargaining or implicit sentence bargaining. An early evaluation of a charge bargaining ban in Michigan found that court participants quickly shifted to a system of sentence bargaining (Iowa Law Review, 1975; Church, 1976)
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From page 317... ...
. Guilty plea rates changed little.
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From page 318... ...
318 ~5 A o m ye U]
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From page 319... ...
There is one other form of early case diversion that the report does not discuss: felony arrests that were prosecuted as felonies before the ban and as misdemeanors afterward. Prosecutors who do not want to expose a defendant to the risk of a prison sentence could approve a misdemeanor charge.
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From page 320... ...
Table 7-4 sets out year-to-year comparisons of felony charge dispositions among those arrests that survived screening. The percentage of guilty pleas to reduced charges declined from 17.4 percent to 15.2 percent.
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From page 321... ...
aA guilty plea to a charge different from that originally charged was considered meaningfully reduced only if the statutory maximum sentence for the conviction charge was less than 75 percent of the statutory maximum sentence for the original charge. SOURCE: Rubinstein et al.
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From page 322... ...
Of the cases initiated in the 24-month period 81 were excluded from the analysis: Files were unavailable for 47 cases that were the subjects of appeals, and 34 cases had not been finally resolved at the trial court level. Since trials take more time to dispose than guilty pleas and the follow-up period was shorter for the postban sample, the excluded cases are more likely to be trial cases initiated after the plea bargaining ban.
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From page 323... ...
. The other conspicuous change was a substantial increase in sentence severity in "low risk" burglary, larceny, and receiving stolen property cases (p.
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From page 324... ...
Since most of these cases were probably initiated in periods 3 and 4, data on them would increase disposition time for those periods and reduce the apparent decline in disposition times. We lack adequate data to calculate whether the effect of including these cases would reduce, eliminate, or reverse the apparent decline in case processing times.
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From page 325... ...
Participants' Reactions Many prosecutors liked the new system, and many defense lawyers did not. Under the new system, prosecutors "could achieve the same results .
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From page 326... ...
Instead they express ambivalence as to whether plea bargaining was such a bad thing after all. Under a sentence bargaining system like that of Alaska before the ban, they argue, the negotiation sessions allowed relatively full discussion of the issues and the defendant's circumstances.
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From page 327... ...
There are many respects in which Alaska's criminal justice system is atypical. First, public prosecution is centrally organized on a statewide basis under the attorney general; although each office has its own district attorney, each is institutionally subject to the policies and procedures of the attorney general.
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From page 328... ...
The "Hampton" County Charge Bargaining Ban In January 1973, after an antic rug law and order election campaign, a newly elected prosecutor in "Hampton" County, Michigan,7 instituted a strict policy forbidding bargained charge reductions in drug sale cases. Prior to his initiative, most drug cases in the jurisdiction were resolved by charge bargains: "In drug cases .
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From page 329... ...
Church concludes that charge bargaining effectively disappeared but that it was quickly replaced by sentence bargaining involving the judge and the defense lawyers. As Table 7-7 indicates, 81 percent of drug sale cases warranted and disposed in 1972 (all under the previous prosecuting attorney)
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From page 330... ...
Sanctions Despite the reputed shift to sentence bargaining, no systematic information is provided on sentences imposed Table 7-8 reveals a slight decline in total conviction rates in 1973 but a return to the 1972 rate in 1974.
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From page 331... ...
The decreasedto-stable conviction rates could obscure a real decline in severity. Because the more stringent "controlled buy" requirement reduced the number of drug sale warrants by 30 percent, a stable conviction rate for these presumably stronger cases should perhaps be seen as a decline in the likelihood of conviction.
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From page 332... ...
Although judges became willing participants in sentence negotiations, defense lawyers found sentence bargaining frustrating. It required that they invest considerable effort in learning about their clients and their clients' cases.
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From page 333... ...
prosecutor forbade dismissal of firearms charges pursuant to plea bargainse Since the charge determined the incremental mandatory sentence, prohibition of charge bargaining also accomplished a prohibition of sentence bargaining. Because both the plea bargaining abolition and mandatory sentencing laws were involved, we discuss this study here and in the next section.
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From page 334... ...
. To assess the combined impact of the mandatory sentencing law and the prohibition of plea bargaining, Heumann and Loftin compared data on dispositions and sentences in cases originally charged as felonious assault, other assault, or armed robbery in which a gun was used.
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From page 335... ...
Virtually any case that can be disposed within a few weeks that was filed TABLE 7-9 Sample Size and Case Processing Time for Wayne County, Michigan Felonious Assault Other Assault Armed Robbery Before After Before After Before After Sample Size 145 39 240 53 Median 150 54 212 50 Processing Time (Days) 471136 16457 aOffense committed before January 1, 1977, and case disposed between July 1, 1976, and June 30, 1977.
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From page 337... ...
Many armed robbery defendants -- more than a third in each sample -- avoided prison sentences altogether, primarily through dismissal or acquittal (see Table 7-10) There were, however, some increases in the severity of prison terms imposed.
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From page 338... ...
. In sum, the experience with cases completed during the six months after the intervention of the gun law indicates that there has been only a slight upward shift in the average sentence.
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From page 339... ...
felt that in the Bless serious of the serious" armed robberies and assaults, the Gun Law marginally increased the sentence. For example, a defendant convicted of armed robbery in Segment I could receive as little as one year from some judges, two from others.
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From page 340... ...
Numerous mandatory sentencing laws have been passed in recent years. Impact evaluations of three of them have been published and are reviewed here (Beha, 1977; Joint Committee, 1977; Heumann and Loftin, 1979; Lof tin and McDowall, 1981)
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From page 341... ...
The gun possession charge had to be separately charged; its applicability thus depended on the decisions of Michigan prosecutors. The law took effect on January 1, 1977, and was supplemented by the Wayne County prosecutor's ban on charge bargaining in firearms cases.
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From page 342... ...
. Dismissal and Conviction Rates One conventional prediction concerning mandatory sentencing laws is that lawyers and judges will dismiss charges and acquit defendants in order to avoid imposition of sentences they believe are unduly harsh.
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From page 343... ...
they find no effect of the gun law on the expected time served for offenders charged with murder or armed robbery. The expected sentences for felonious assault and other assaults, however, did increase more for cases involving guns.
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From page 344... ...
The shorter follow-up in the after period is likely to disproportionately exclude unresolved trial cases for felonious assault.ll The large increase in the bench trial rate observed is mainly due to judges' use of the "waiver" trial as a mechanism to circumvent both the mandatory gun law and the prosecutor's ban on charge bargaining. To summarize: There was a significant increase in dismissals of "other assault" and robbery cases, effecting for "other assault" a significant decrease in the percentage of cases convicted at trial but without imprisonment.
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From page 345... ...
First, the Boston district courts that were studied serve as preliminary hearing courts for the Massachusetts superior court in Boston: Some cases are simply bound over, and any district court conviction can be appealed to the superior court for a trial de nova. Thus a conviction or sentence in the district court need not mean that the defendant will ultimately be convicted or receive that sentence.
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From page 346... ...
Dismissal and Conviction . The effects of the carrying law on the district courts were to increase the incidence of acquittals, to increase greatly the rate of appeals to the superior court, to eliminate the use of several nonadjudicative dispositions, and to increase the rate of absconding (i.e., jumping bail)
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From page 347... ...
Implicitly the appeals increase suggests that the imposition of prison sentences increased substantially in district courts, but whether these sentences survived superior court processing is unknown. Similarly, the increased rate of appeals suggests that average court processing times increased.
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From page 348... ...
. To sum up: Adaptation is evident in the substantial increase in acquittals for defendants charged only under the carrying statute and those also charged with robbery; appeals to the superior court increased enormously, suggesting that the minimum sentence was being imposed at district courts; and the absconding rate increased.
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From page 349... ...
Summarizing the results from 1972 to 1976: Drug felony arrests, indictment rates, and conviction rates all declined; imprisonment rates among convictions increased steadily; and the likelihood of imprisonment given arrest for a drug felony remained the same, at approximately 11 percent. Table 7-14 shows state-level drug felony disposition figures for the period January 1, 1972, through June 30, 1976.
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From page 350... ...
. of drug felony arrests declined after 1972, suggesting major changes in police policies.
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From page 351... ...
Overall and statewide, the proportion of drug felony prisoners in the state prisons was essentially unchange d from 1972 (10.7 percent) to 1975 (10.8 percent)
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From page 352... ...
. Severity of Prison Sentences The severity of prison terms imposed on sentenced drug offenders increased markedly.
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From page 353... ...
DETERMINATE SENTENCI NG IN CALIFORNIA The most extensively studied sentencing reform is the California Uniform Determinate Sentencing Law (DSL)
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From page 354... ...
Determinate sentencing, with fixed prison terms set by the judge, replaced indeterminate sentencing (ISL) , in which judges merely sentenced offenders to the statutory maximum with the release time being set by the Adult Authority.
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From page 355... ...
· There is no evidence of substantial changes in initial charging practices, at least for cases finally disposed of in superior court. · Explicit bargaining over the length of prison terms was limited to those jurisdictions already engaged in extensive sentence bargaining.
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From page 357... ...
In cases involving conviction for multiple charges the judge may impose separate terms on each charge to be served consecutively or concurrently. The law also provides for enhancements that further increase prison terms in cases involving weapon use, great bodily injury to the victim, excessive property loss, or prior prison terms.
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From page 358... ...
DSL created a new Board of Prison Terms, whose main function is to review all prison sentences imposed for disparity and. in cases of apparently disparate ~ ~ ~ ~: _ ~ sentences, to recommend resentence ng co c'~= Cal judge.
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From page 359... ...
Most of the other offenses also experienced decreases in the use of middle terms and increases in the use of lower terms, but in contrast to the SB709 offenses, they experienced increases in the use of upper terms. The Board of Prison Terms study (1981:Table VI)
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From page 360... ...
. bDerived from Board of Prison Terms (1981:Tables IV, VI)
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From page 361... ...
Under ISL, a judge who thought a defendant warranted a short state prison term, say two years, might hesitate to impose such a sentence because the defendant could be held by the Adult Authority for much longer. Under DSL, defendants could be sentenced to short determinate prison sentences, and it was widely expected that these marginal prison cases would then shift from local jails or probation to prison.
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From page 363... ...
found weapons allegations in 59.7 percent of cases with a weapon in the offense in Alameda and Sacramento counties, compared with 70.5 percent charging of the firearms enhancement among burglary cases received in prison statewide. Likewise for robbery cases finally disposed of in superior court in San Bernardino, San Francisco, and Santa Clara counties, Casper et al.
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From page 364... ...
AS shown in Table 7-19, even when cases were eligible for charging, as indicated by the presence of a firearms enhancement allegation, the probation ineligibility provisions were rarely invoked, except in Santa Clara.
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From page 365... ...
Various administrative procedures, typically involving supervisor approval before dropping charges, were employed to ensure compliance by assistant prosecutors. The observation and interview data as well as the statistical analysis found little evidence of any major changes in initial charging, at least for cases finally disposed of in superior court.
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From page 366... ...
With the exception of San Francisco and to a lesser extent San Bernardino, cases disposed in superior court involved about the same number of charges of the same seriousness before and after DSL. In San Francisco and San Bernardino, the number of charges at initial filing increased, especially in robbery cases.
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From page 367... ...
Unfortunately, all the analyses of charging are limited to cases that are finally disposed of in superior court. No evidence is available on the way these charges emerge.
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From page 368... ...
Only those jurisdictions already engaged in substantial sentence bargaining before DSL incorporated explicit agreements on the length of prison terms into their bargaining practices after DSL. There was also almost no change in the overall rate of guilty pleas after DSL; although there were definite indications that early guilty pleas (e.g., at initial court appearance)
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From page 369... ...
Both these counties made considerably greater use of "certifications, n in which guilty pleas to felony charges were accepted in municipal court and the case was then certified to superior court for sentencing. Certifications represented about one-third of all convictions in superior court in these two counties, compared with less than one-tenth in the other three counties.
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From page 371... ...
Guilty Plea Rates In Table 7-22 we see that controlling for crime type there were no marked changes after DSL in the already-high proportion of guilty pleas among convictions found in all five counties and for the state as a whole. Likewise there were only marginal increases in trial rates (Table 7-23)
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From page 372... ...
(78.3) San BernardinoC ISL-1974 93 85 91 84.3 1975 95 86 92 80.6 1976 87 75 86 74.5 DSL-1977 91 83 84 73.0 1978 89 81 87 78.0 (1979)
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From page 373... ...
. TABLE 7-24 Trial Rates Among Convictions in California Superior Courts for Samples of Defendants Originally Charged with Burglary, Controlling for Offense Seriousness (in percent)
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From page 374... ...
As indicated in Figure 7-1, without controlling for any variations in crime type mix over time, a simple two-point comparison of ISL in 1976 with DSL in 1978 shows sharp increases in the proportion of early pleas entered at initial appearance among all guilty pleas in TABLE 7-25 Trial Rates Among Convictions in California Superior Courts for Samples of Defendants Originally Charged with Burglary, Controlling for Offender Prior Criminal Record (in percent) ISL Period Only Alameda Sacramento Any Prior Felony Convictions No Prior Felony Convictions Thievery Repeatersa Non-Repeaters 4.44 3.02 4.62 3.75 14.55 4.67 12.38 4.21 aThievery repeaters had prior convictions (felony or misdemeanor)
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From page 375... ...
. FIGURE 7-1 Trends in the Timing of Gu ilty Pleas in California: Percent of All Superior Court Guilty Pleas Entered at Initial Appearance superior court.
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From page 376... ...
~. To the extent that such misdemeanor filings were more likely for the less serious cases, which because of the milder sanction risks were also more likely to plead guilty early, this change in the penal code should have resulted in a shift of many early plea felony cases from among superior court guilty pleas to misdemeanor early pleas handled in municipal court.l7 Such a scenario is consistent with the decreases in early guilty pleas observed in superior court through 1976.
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From page 377... ...
I SL-1976 DSL-197 8 S an Be r na rd inob DSL San Franc i scab DSL Santa Clarab DSL 21.7 % 4.4% 42.6% 39. 3% Substant ial "open pleas" ( predominant!
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From page 378... ...
The two counties in which charge bargaining was prevalent, Sacramento and San Bernardino, showed little change in bargaining practices, relying heavily on "open please with no commitments on sentence outcomes both before and after DSL. Where extensive sentence bargaining occurred before DSL -- in Alameda and San Francisco -- there was substantial use after DSL of agreements not only specifying state prison sentences but also specifying the length of prison terms.
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From page 379... ...
The judge responded that sentence bargaining was not the only way to achieve such "certainty." In a small court the attorneys developed a pretty good feel for likely outcomes, relying on their knowledge of the track record of the judge and their ability to read indirect signals from the judge. In this setting most cases were routine and predictable for the parties and they reached agreement based on their expectations of likely sentence outcomes.
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From page 380... ...
Increased early filtering of cases, resulting in a greater concentration of more serious cases in superior court; and (5) Demographic shifts in the population toward increasing representation of older offenders who are more vulnerable to prison sentences.
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From page 381... ...
Similar increases were generally found in Table 7-28 for the proportion sentenced to prison among convictions in superior court, both across jurisdictions and for different offense types. The principal exception TABLE 7-27 California Adult Prison Commitment Rate (Commitments/100,000 Residents)
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From page 382... ...
382 TABLE 7-28 Proportion Sentenced to Prison Among Convictions in California Superior Courts % to Prison Among Convictions 1976 1978 Before DSL After DSL Jurisdiction All Offenses State total Counties 17.8 23.0 Alamedab 14.2 23.2 Sacramentob 25.4 26.9 San BernardinoC 29.5 38.5 San FranciscoC 25.0 31.5 Santa ClaraC 25.0 16.5 Burglary Robbery Alamedad 17.8 42.5 Sacramentod 23.0 21.3 San Bernardinoe 29.5 38.5 San Franciscoe 24~5 32.0 Santa Clarae 24.5 16.0 San Bernardinoe 65.0 63.0 San Franciscoe 44.0 49.5 Santa Clarae 59.5 57.0 aThese data from the California Bureau of Criminal Statistics are reported in Lipson and Peterson (1980) and Brewer et al.
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From page 383... ...
. Santa Clara, by contrast, appeared to be returning to previous low rates of prison use after a brief period of increased use of prison sentences for offenders convicted in superior court.
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From page 384... ...
. FIGURE 7-3 Prison Use in California Counties -- All Offenses robbery and burglary in San Bernardino and San Francisco, while rates of prison use for these crime types appeared relatively stable in Santa Clara (Figure 7-4)
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From page 385... ...
. FIGURE 7-4 Prison Use in California Counties for Burglary and Robbery Cases Disposed of in Superior Court jurisdictions to keep offenders under local supervision within their own communities.
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From page 386... ...
. FIGURE 7-5 Sentences in California Superior Courts increases in prison commitments.
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From page 387... ...
(l981:S-l9) observed a slight increase in the Percent of buralarv and robbery defendants who had served prior prison terms in San Bernardino and San Francisco.
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From page 388... ...
Figure 7-6 indicates that major changes have in fact occurred in the distribution of cases between superior and municipal courts. The proportion of total court dispositions handled in superior courts dropped dramatically, from 70.7 percent in 1968 to 30~9 percent in 1980.
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From page 389... ...
. FIGURE 7-6 Changes in Filter ing Cases Through California Criminal Justice System
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From page 390... ...
390 o .-l cn a)
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From page 391... ...
The shift of less serious convictions out of superior court in Alameda was associated with an increase in prison sentences among the remaining superior court convictions. This contrasts with relatively stable prison use in Sacramento.
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From page 393... ...
393 oo oo kg ~ o ~[_~ a)
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From page 394... ...
It is also important to remember that all the results in Table 7-30 refer to all offense types disposed of in each county. Thus the differences observed might be confounded by differences in crime type mix between counties and over time within a county.
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From page 395... ...
Analysis of Pennsylvania, a state with an aging population, suggests that total arrests in Pennsylvania will increase to the year 1980 and then begin to decline. The increases in prison commitments will continue to about 1985, and prison populations will not decline until after 1990 (Blumstein et al., 1980)
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From page 396... ...
Table 7-31 presents data for new commitments received by the Department of Corrections in 1975, 1976, and fiscal year 1977-1978. These are supplemented by court-based Bureau of Criminal Statistics data on prison sentences for 1979.
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From page 397... ...
(1981) explicitly addresses this question through consideration of the ratio of prison sentences to all incarceration sentences (prison and jail)
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From page 398... ...
In another analysis, Sparks (1981) examined the changes in prison use after conviction in superior court by crime type, prior criminal record, and legal status at the time of the offense.
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From page 399... ...
. FIGURE 7-8 Percent Prison Sentences Among Prison and Jail Sentences for California Super for Court Dispositions -- All Offenses increases in use of prison occur for less serious offenders.
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From page 400... ...
changes in the average severity of prison terms reflected in either increases or decreases in mean or median time served and (2) changes in the variability or disparity in time served for similar cases.
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From page 401... ...
Length of Prison Terms Studies comparing the average length of terms under ISL and DSL use both actual sentences imposed under DSL and adjusted DSL terms reflecting credits for jail time already served, good time off the sentence, or both.24 The average length of terms served under ISL was estimated from the actual time served by offenders recently released under ISL. These comparisons generally found decreases in mean or median time served under DSL, especially when allowing for jail and maximum good-time discounts from the term actually imposed at sentencing.
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From page 402... ...
402 an a U)
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From page 403... ...
on of co 1 · - ~ pi to Go 1 · ~ pi .
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From page 404... ...
This was accomplished by introducing a greater differential between person and property offenses in women's terms, with terms for person offenses increasing for women and terms of property offenses remaining about TABLE 7-34 Changes in Length of Prison Terms by Sex Based on Statewide Data Offense Mean Prison Term (Months) Men Women Women/Men All Offenses ISL: 1972-1976 40.0 23.7.59 DSL actual: 1977-1978 41.4 35.3.85 DSL adjusted: 1977-1978 28.7 24.8.86 2nd Degree Burglary ISL: 1972-1976 30.0 19.5.65 DSL actual: 1977-1978 26.3 22.3.85 DSL adjusted: 1977-1978 18.4 16.0.87 Robbery ISL: 1972-1976 44.8 26.7.60 DSL actual: 1977-1978 51.8 42.8.83 DSL adjusted: 1977-1978 35.7 29.6.83 Assault with a Deadly Weapon ISL: 1972-1976 40.9 22.3.55 DSL actual: 1977-1978 47.7 49.71.04 DSL adjusted: 1977-1978 32.9 34.71.05 SOURCE: Derived from Brewer et al.
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From page 405... ...
As evident in Figure 7-9, median ISL prison terms between 1968 and 1976 for all offenses were consistently longer (at about 3 years) than found in the preceding 23 years, when prison terms averaged about 26 months.
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From page 406... ...
. Recognizing that a simple two-point comparison of average prison terms may be TABLE 7-35 Trends in Lengths of Prison Terms By Crime Type Median Prison Terms (months)
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From page 407... ...
Based on these results, the higher prison terms in Alameda under ISL can be attributed to a greater repress sensation of serious cases in Alameda County. The DSL difference between counties of 4.3 months was quite close to the estimated county differential of 3.5 months, suggesting that cases in the two counties were much closer in seriousness in the DSL san~le.29
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From page 408... ...
Variability in Prison Terms Consistent with the emphasis on retribution as a primary purpose of sentencing embodied in DSL, similarly convicted offenses should result in similar sentences. To the extent that this objective is met, one would expect
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From page 409... ...
. Implications for the Size of the Prison Population Several studies considered the implications of changes in prison commitments and prison terms for future prison
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From page 410... ...
Without the discretionary releasing authority of the Adult Authority, a continuation of releases at the stable pre-1968 levels in the face of the increases in receptions experienced during the 1970s would have resulted in unchecked growth in the prison population through the 1970s, reaching over 30,000 inmates by 1978. 25 ~ 20 In ° 15 us ~ 10 7 o O Ha to z -5 - Total Male Felon Population ,~, Male Felons Received from Court with New Convictions Net Parole Releases of Male Felonsa / 'Gil -101 1 1 1 1 .1 1 1 1 1 1 1 1 1 1 1958 1962 , ~ ,' %_,' 1 1 'he' 1 1 1 1966 1970 1974 1978 YEAR aParole releases and discharges minus parole revocations.
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From page 411... ...
DSL did not induce sentence bargains ing where it did not exist before; it did, however, expand the scope of already existing sentence bargaining to include explicit reference to the length of prison terms in bargained sentence agreements. DSL provisions for enhancements and probation ineligibility functioned as important bargaining chips for the prosecutor in obtain ing agreement to a prison term.
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From page 412... ...
. The feasibility demonstrated by the parole guidelines makes guidelines particularly attractive as a means of structuring sentencing without usurping the proper exercise of judicial discretion.
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From page 413... ...
examined guidelines in Newark; Knapp (1982) and Minnesota Sentencing Guidelines Commission (1982)
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From page 414... ...
Indeed, the guidelines may represent a deliberate departure from past sentencing practices, as exemplified by the guidelines for the state of Minnesota. In descriptive guidelines the primary intent is to create consistency across judges.
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From page 415... ...
As implemented in Minnesota, such compliance is likely to be high because of the presumptive authority of those guidelines. Formal Compliance Because of the descriptive nature of many sentencing guidelines, it is particularly important to distinguish compliance from agreement with guidelines.
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From page 416... ...
was based on a 10-percent random sample of cases sentenced in the 39 months before guidelines were implemented on March 5, 1979, and a 45-percent random sample of cases sentenced in the first six months after guideline implementation.35 The Newark evaluation (Cohen and Helland, 1981) used data on 1,446 cases with presentence reports prepared over a total of 15 months before guideline implementation and another 634 cases sentenced in the first six months after guidelines were implemented in July 1977.36 Except for those in the Denver evaluation, the follow-up periods after guideline implementation were quite short at 6 months, and it was therefore difficult to sort out long-term impact from start-up effects.
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From page 417... ...
Presumptive/Prescriptive Guidelines Minnesota is the only jurisdiction that has, at the time of this writing, implemented sentencing guidelines that are both presumptive and prescriptive. The Minnesota Sentencing Guidelines Commission was established by the state legislature in 1978 and charged with developing presumptive sentencing guidelines for the state.
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From page 418... ...
; instead OUTs may be sentenced to probation or to terms in local jails. Internal evaluations of the impact of the Minnesota guidelines found substantial formal compliance by Judges in both the decision to incarcerate and the decision about sentence length (Knapp, 1982; Minnesota Sentencing Guidelines Commission, 1982)
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From page 419... ...
Departure rates after guideline implementation, however, indicate substantial use of the narrow sentence ranges provided in the guidelines. Of 827 cases committed to prison after guideline implementation during 1980-1981, 76.4 percent were within the guideline range, with 7.9 percent receiving longer sentences and 15.7 percent shorter sentences (Knapp, 1982; Minnesota Sentencing Guidelines Commission, 19821.
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From page 420... ...
. Variability in Sentences One of the purposes of sentencing guidelines has been to reduce the variation in sentences for otherwise "like" cases.
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From page 421... ...
With a maximum possible variance in IN/OUT sentences of .25 the variance decreased 52 percent, from .1041 in the 1978 baseline data to .0499 in 1980-1981 (Knapp, 1982; Minnesota Sentencing Guidelines Commission, 1982)
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From page 422... ...
; Minnesota Sentencing Guidelines Commission (1982)
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From page 423... ...
Nevertheless, minority, male, and unemployed offenders continued to experience more departures from the presumptive sentences, and these departures tended to be in the direction of more severe sentences (i.e., presumptive OUTS who were in fact sentenced to the state prison)
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From page 424... ...
SOURCE: Minnesota Sentencing Guidelines Commission (1982)
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From page 425... ...
SOURCE: Minnesota Sentencing Guidelines Commission (1982)
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From page 426... ...
No such TABLE 7-42 Changes in Charge Reductions After Implementation of the Minnesota Sentencing Guidelines Percent of Cases Convicted of Aggravated Robbery When Aggravated Robbery was the Most Serious Charge Criminal History 1978 Cases Sentenced Under Score Baseline Cases Guidelines, 1980-1981 0 59 49 1 75 60 2 64 66 3 54 70 4 58 70 SOURCE: Knapp (1982) ; Minnesota Sentencing Guidelines Commission (1982)
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From page 427... ...
Table 7-43 provides further evidence of the effectiveness of the guidelines in shifting prison sentences from property to personal offenses. The portion sentenced to prison of low-history offenders in serious offenses increased sharply, from 45 percent to 77 percent after implementation of the guidelines, while the portion sentenced to prison of high-history offenders in the least serious felonies decreased from 53 percent to 16 percent (Knapp, 1982; Minnesota Sentencing Guidelines Commission, 1982)
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From page 428... ...
; Minnesota Sentencing Guidelines Commission (1982)
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From page 429... ...
In sharp contrast, the case of the Minnesota sentencing guidelines, which were prescriptive and presumptive in authority, have indicated that it is possible to achieve substantial compliance resulting in major policy shifts through the use of guidelines. The key factors in achieving this impact in Minnesota appear to have been: the legal authority of the guidelines manifested in the legislative mandate; the careful implementation of the guidelines involving many facets of the community as well as criminal justice system participants; and the enforcement of the guidelines through monitoring of sentences by the commission staff and affirmation of the guideline sentences in Supreme Court decisions on appeals.
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From page 430... ...
There were more than 24 different maximum prison terms authorized for different offenses and 60 different statutory sentencing provisions (Anspach, 1981:10; Zarr, 1976:118)
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From page 431... ...
. By contrast, one might hypothesize a real reduction in sentence severity, because judges may have been consciously increasing past prison sentences to discount for parole release and no longer need to do so and because, without a parole board, judges may be chastened by the sole responsibility for punishment decisions and impose less severe sentences (see, e.g., Kramer et al., 1978:62-64)
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From page 432... ...
. The sample included five of the six busiest superior courts and encompassed more than 70 percent of Maine's criminal prosecutions.
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From page 433... ...
Moreover, the deletion of cases producing 35.6 percent of Maine State Prison commitments creates a systematic and substantial underrepresentation of serious cases in the sample. (This may account for the conclusions that the frequency of incarcerative sentences declined and sentence severity declined for Class B and C offenders postcode)
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From page 434... ...
Still others were under life sentence and were excluded from the sample. Perhaps ironically, five of the missing Maine State Prison cases involved prisoners serving prison terms for offenses that have retrospectively been characterized as Class ~ offenses and therefore were excluded from the study.
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From page 435... ...
Four primary questions have been studied: (1) Severity -- the effect of sentencing guidelines on the overall severity of prison sentences; (2)
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From page 436... ...
In Minnesota (where the parole guidelines have since been abandoned) , Arthur D
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From page 437... ...
The discretionary "departure rates" under the U.S. Parole Guidelines have varied between 10 percent and 20 percent.
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From page 438... ...
concluded that controlling for offense severity and using the Oregon Parole Board~s offender scoring system, the variability of prison terms was less in 1976 and 1978, under guidelines, than in 1974 before guidelines were implemented. The Arthur D
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From page 439... ...
In the Michigan county in which charge bargaining was forbidden in drug sale cases, the percentage of convictions resulting from guilty pleas to reduced charges declined from 80 percent in 1973, the year before the ban, to 0 in sample cases disposed in 1974 after the ban. All the evidence in Alaska suggests that the plea bargaining ban was generally followed.
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From page 440... ...
Administratively imposed changes, not backed by the force of law, as found in most cases of sentencing guidelines, were advisory at best. Adaptive Responses In every case of procedural compliance, the studies also found evidence of increased screening or other early disposition of cases.
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From page 441... ...
In California early guilty pleas increased immediately after the determinate sentencing system took effect, from 32 percent of all guilty pleas in 1976 to 43 percent in 1978. There is also evidence that cases were increa s ingly disposed in lower courts, with dispositions in superior courts declining from 71 percent in 1968 to only 30 percent by 1979.
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From page 442... ...
In Alaska there were selected increases in sentence length for drug cases and low-seriousness theft cases. In Detroit offenders charged with "other assaults" experienced increases in both the probability of prison after conviction and the length of prison terms.
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From page 443... ...
The possibility of delayed impact was strongly suggested in the case of the New York drug law: Median disposition times doubled in New York City (1973: 172 days; January to June 1976: 351 days) as defendants increasingly requested trials and postponements (Joint Committee, 1977:103-5)
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From page 444... ...
All the evaluations of the California Determinate Sentencing Law considered in this review are limited to cases disposed in superior court; earlier charging and lower court decisions that screen cases out of superior court were not examined. This narrowness of focus fails to acknowledge the complexity of criminal case processing and the many opportunities for the exercise of discretion that it affords.
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From page 445... ...
The significance of the filtering process was highlighted in the evaluations of the New York drug law (Joint Committee, 1977) and the mandatory sentencing law for firearms violations in Detroit (Heumann and Loftin, 1979)
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From page 446... ...
NOTES 1. The following illustrates an example in which guilty plea rates for defendants decline from 80 percent to 68 percent, but guilty pleas among "cases" remain stable at a 40 percent rate:
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From page 447... ...
3. The ambiguity arose from the attorney general's effort to distinguish charge reductions to induce guilty pleas, which he wanted stopped, from unilateral charge dismissals and reductions resulting from professional judgments about the strength of evidence, problems of proof, and the like.
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From page 448... ...
in the number of cases disposed after screening. To the extent that this decrease is associated with cases that were excluded from the sample because they were not disposed by the end of 1977, the excluded cases could substantially increase the postban trial rates in Juneau.
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From page 449... ...
(1980:Tables 7 and 8) ; comparable data for 1979 are found in Board of Prison Terms (1981:Table III)
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From page 450... ...
The influence of this legislative change on case mix in superior court is noted in Lipson and Peterson (1980:21) to account for increases in use of prison among superior court convictions through the early 1970s.
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From page 451... ...
23. The issue of changes in time served is discussed in detail in the next section.
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From page 452... ...
concluded that there were substantial reductions in time served under DSL for burglary, but only slight reductions for the persons offenses of robbery and assault. This imputed difference between or ime types was then the basis for the authors to conclude that the overall decrease in prison terms wa s largely the result of a greater representation of minor convictions previously sentenced to jail but now appearing among prison commitments with shorter terms on average.
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From page 453... ...
To the extent that conviction charges and jurisdiction were negatively correlated, with the Sacramento sample, tending to have offenses of lower seriousness, the differential effect of DSL found for different levels of seriousness might be reflecting a difference in DSL effects in the two counties, with prison terms decreasing more under DSL in Sacramento than they do in Alameda.
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From page 454... ...
. 1981c Consistency: An Analysis of the Parole Decision Guidelines of the Washington State Board of Prison Terms and Parole.
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From page 455... ...
Board of Prison Terms 1981 Sentencing Practices: Determinate Sentencing Law. California Board of Prison Terms, February 11, 1981.
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From page 456... ...
1982 Impact of the Minnesota Sentencing Guidelines on Sentencing Practices. Hamline Law Review 5 (June)
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From page 457... ...
Boston, Mass.: Little, Brown and Co. Minnesota Sentencing Guidelines Commission 1982 Preliminary Report on the Development and Impact of the Minnesota Sentencing Guidelines.
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From page 458... ...
Stecher, Jay Albanese, and Peggy L Shelly 1982 Stumbling Toward Justice: Some Overlooked Research and Policy Questions About Statewide Sentencing Guidelines.
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From page 459... ...
Calpin, and A.M. Gelman 1976 Sentencing Guidelines: Structuring Judicial DiS _ _ _ cretion.
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Key Terms
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