Research on Sentencing The Search for Reform, Volume II (1983) / Chapter Skim
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1 MAKING SENSE OF SENTENCING: A REVIEW AND CRITIQUE OF SENTENCING RESEARCH
1 MAKING SENSE OF SENTENCING: A REVIEW AND CRITIQUE OF SENTENCING RESEARCH
Pages 1-54
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These studies are notable not only for number but also for their diversity of methods and results. Although early studies of sentencing relied heavily on the use of contingency tables, a striking feature of the past decade has been the widespread application of multivariate techniques, including the development of structural equation models and log linear analyses of the sentencing process.
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In the 1960s this research largely used contingency tables to test whether attributes like race remained significantly correlated with sentence outcome when type of offense and/or prior record were held constant. Although this research labored under the inherent liabilities of tabular techniques, particularly problems of controlling for more than one or two variables simultaneously, it served the important function (at least implicitly)
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the race-sentence relationship. Later arguments have focused on whether race linked patterns of offense type and prior record should be taken as reflecting differences in criminal behavior or as reflecting earlier experiences of differential treatment by legal authorities Afar "Y=m~l~ =~^ = and ~wlamr~ 1 IRAQ=` ~ ~-Or ~` I ~- _~___, ~ ,.
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Both the individuals and the system occupy variable positions or locations within a social structure, so individual processing decisions can vary by social context. This point has been recognized implicitly in some past sentencing research, and it is made increasingly explicit in recent work.
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The most important of these problems has involved the attempt to draw distinctions between legal and extralegal factors in sentencing decisions. Much of the sentencing research of the 1960 s and early 1970s was premised on such a distinction (see Green, 1961)
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In sum, the law is an ambiguous guide as to those factors that may legitimately influence sentencing decisions. This issue of legitimacy is complicated further by the fact that it has empirical and moral as well as legal dimensions.
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The second concern is that whether an offender is well-to-do, poor, or of minority status should have no influence on sentencing; similar levels of support are apparent for this position. In terms of measured attitudes, it is clear that the American public regards prior record and type of offense as legitimate influences on sentencing and that they do not recard economic and ethnic characteristics as legitimate influences on sentencing.
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For our purposes we regard discretion as the latitude of decision provided by law to someone in imposing a sentence we regard discrimination as a pattern of sentencing regarded as unfair, disadvantaging, and prejudicial in origin; and we regard disparity as a form of unequal treatment that is often of unexplained cause and is at least incongruous, if not unfair and disadvantaging, in consequence. An illustration of the confusion that can occur in the use of these terms is Farrell and Swigert's conclusion (1978a:450)
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In any case, our purpose in defining these terms is to make our use of them as unambiguous as possible. METHODOLOGICAL PROBLEMS IN SENTENCING RESEARCH Ideally, social science research is a commutative enterprise: Research problems are refined in their definition, increasing amounts of data are brought to bear, findings accumulate, and knowledge increases.
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argues that studies of municipal courts are needed because 90-95 percent of all cases are handled in these lower courts, with the result that "Next to the police, the lower criminal courts play the most important role in forming citizen impressions of the American system of criminal justice" (p.
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Measurement of Legitimized Influences on Criminal Sentencing What we have called legitimized influences on criminal sentencing -- for example, type of offense and prior record -- should be expected to be strongly related to sentence outcomes. In practice this expectation confronts at least two problems: (1)
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Finally, it may be that the sheer bloodiness of a crime may influence sentencing in ways that abstract measures of offense seriousness do not suggest. Again, these other plausibly legitimate influences may be particularly important insofar as they mediate, and thereby serve to justify, the influence of the nonlegitimized variables we consider next.
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from an important study of the impact of prior offense record on sentencing that "the use of a prior record as meaningful information in the disposition of a criminal case TABLE 1-2 Perceived Influence of Minority Status on Sentencing by Race of Respondent Influence Much Little No Little Much Race Lighter Lighter Influence Tougher Tougher Total White 4.7 14.7 49.0 26.3 5.4 (76)
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Another type of nonlegitimized influence that has been considered sporadically in sentencing research is the relationship between the victim and the offender. Early studies concentrated on the race of the offender and the victim (e.g., Garfinkel, 1949)
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The second concern is that whether an offender is well-to-do, poor, or of minority status should have no influence on sentencing; similar levels of support are apparent for this position. In terms of measured attitudes, it is clear that the American public regards prior record and type of offense as legitimate influences on sentencing and that they do not regard economic and ethnic characteristics as legitimate influences on sentencing.
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skeptically calls the "method of residues," residual covariation of the contextual variable with the dependent variable is then identified as the effect of the context. Hauser points out that gross aggregate differences in a dependent variable are usually small when compared with the total variability of that variable, and that when other independent variables that must be controlled are held constant, aggregate differences in levels of the dependent variable are diminished further.
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The most important of these problems has involved the attempt to draw distinctions between legal and extralegal factors in sentencing decisions. Much of the sentencing research of the 1960 s and early 1970s was premised on such a distinction (see Green, 1961)
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Case-Processing Attributes: Bail status, attorney type, plea, presentence report, recommendations of prosecutors and probation officers.
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the race-sentence relationship. Later arguments have focused on whether race linked patterns of offense type and prior record should be taken as reflecting differences in criminal behavior or as reflecting earlier experiences of differential treatment by legal authorities (fair -~;~mnl~ Am 1i':~rrml 1 and Swiaerr.
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One possible explanation we elaborate below is that, as researchers have increased their use of multivariate techniques facilitating the control of legitimized variables like offense and prior record, they also have focused more selectively on those structural and contextual conditions that are most likely to result in racial discrimination. We make this point below by individually considering the 10 studies based on data from 1969 on that find evidence of racial discrimination with offense and record controlled.
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These studies are notable not only for number but also for their diversity of methods and results. Although early studies of sentencing relied heavily on the use of contingency tables, a striking feature of the past decade has been the widespread application of multivariate techniques, including the development of structural equation models and log linear analyses of the sentencing process.
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. Gibson uses interview responses to show that the antiblack judges are tied strongly to traditional southern culture, concerned about crime, prejudiced against blacks, and relatively punitive in their sentencing philosophies; in addition they tend to rely more heavily on the defendant's attitude and prior record in making their sentencing decisions.
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/ Research on Sentencing: The Search for Reform
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. The long history of black-white sexual segregation in the United States makes sexual assault cases one of the most likely structural contexts in which racial discrimination will be found.
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ALFRED BLUMSTEIN, Chair Panel on Sentencing Research xiii
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. Both of these variables may identify structural contexts in which the likelihood of racial discrimination is increased.
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The Panel on Sentencing Research was established in September 1980 to review that research on sentencing and its impact. The panel was created in response to a request from the National Institute of Justice to the National Academy of Sciences, as a panel of the Committee on Research on Law Enforcement and the Administration of Justice of the Commission on Behavioral and Social Sciences and Education of the National Research Council.
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We have talked in some detail about recent studies that have found evidence of racial discrimination and about the structural and contextual conditions that may give rise to these findings.
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Contents Volume PREFACE SUMMARY Introduction Determinants of Sentences Structuring Sentencing Decisions Assessment of the Effects of New Sentencing Policies Sentencing Policies and Prison Populations Research Agenda 1 INTRODUCTION: SENTENCING PRACTICES AND THE SENTENCING REFORM MOVEMENT The Processes That Constitute Sentencing The Goals of Criminal Sanctions American Sentencing in Comparative and Historical Perspective Scope of This Report 2 DETERMINANTS OF SENTENCES Issues Findings Conclusion ix
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In the earlier part of this century a large number of studies both with and without controls for offense and prior record found evidence of racial discrimination in the use of the death penalty, particularly in the South (Bedau, 1964; E Johnson, 1957; wolf, 1964; Wolfgang et al., 1962; Wolfgang and Reidel, 1973)
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Contents PRE FACE 1 MAKING SENSE OF SENTENCING: A REVIEW AND CRITIQUE OF SENTENCING RESEARCH John Hagan, Department of Sociology and Faculty of Law, University of Toronto Kristin Bumiller, Department of Sociology, University of Wisconsin DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTE M: A CRITICAL APPRAISAL OF THE LITERATURE Steven Klepper, Department of Statistics, Carnegie-Me/lon University Daniel Nagin, Pennsylvania Department of Revenue, Harrisburg Luke-Jon Tierney, Department of Statistics, Carnegie-Mellon University ·e V11 X1 55
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The weakness of the race-sentence relationship is not necessarily surprising. An important feature of the individual-processual approach is its conceptualization of race as an exogenous variable exercising its influence through an extended causal chain that includes such intervening variables as offense type, prior record, bail status, and recommendations by various control agents.
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BROWN, Chief of Police, Houston, Texas JOSEPH B KADANE, Department of Statistics, Carnegie-Mellon Uni versity SAMUEL KRISLOV, Department of Political Science and Law School, University of Minnesota RICHARD LEMPERT, Law School, University of Michigan NORVAL MORRIS, Law School, University of Chicago RICHARD D
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Ignoring this kind of structural variation would simply constitute a macrolevel source of sample selection bias. The important research on race and sentencing of the future will involve individual-processual analyses of the sentencing process that are also able to take the types of structural and contextual variation we have discussed into account.
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KADANE, Department of Statistics, Carnegie-Mellon University NORVAL MORRIS, Law School, University of Chicago DAVID J ROTHMAN, Department of History, Columbia University RUTH L
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Tonry, Editors Pane} on Sentencing Research Committee on Research on Law Enforcement and the Administration of Justice Commission on Behavioral and Social Sciences and Education National Research Council NATIONAL ACADEMY PRESS Washington, D.C.
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41 ·r1 C s · - · - ~ X 1 ~ u' ~4 ~ ~ c o 0 1 ~ P4 0 u7 c o ~ s · v ~ ~ ~ ~ eq o · - q~ · - ~ · .
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Doyle 1977a Societal reaction to deviants: the case of criminal defendants. American Sociological Review 42:743-755.
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American Sociological Review 40:753-772. Clarke, Stevens H., and Gary G
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1977 Socioeconomic status and criminal sentences: is there an association? American Sociological Review 42:174-176.
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:506-527. Hagan, John, Ilene Nagel, and Celesta Albonetti 1980 The differential sentencing of white collar offenders in ten federal district courts.
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Barraco 1979 Report on the Sentencing Guidelines Project to the Administrative Director of the Courts: On the Relationship Between Race and Sentencing Sentencing Guidelines Project, State of New Jersey Administrative Office of the Courts, Trenton.
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National Criminal Justice Information Statistics Service. Washington, D.C.: U.S.
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Henretta 1980 Race differences in criminal sentencing. Sociological Quarterly 21:197-207.
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Zimring, Franklin E., Joel Eigen, and Sheila O'Malley 1976 Punishing homicide in Philadelphia: perspectives on the death penalty. University of Chicago Law Review 43:227-252.
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