ADVERSARIAL AND NONADVERSARIAL JUSTICE: A COMPARISON OF GUILTY PLEAS AND TRIALS*

Despite the frequency of guilty pleas, researchers disagree about the ability of plea bargaining to provide justice. Critics argue that plea bargaining deprives defendants of due process rights and procedural safeguards Proponents argue that guilty pleas save resources for cases that require trial and allow officials flexibility to tailor justice to individual defendants. This article explores these issues by examining the effect of defendant and case characteristics on sentence severity for 3,269 male robbery and burglary defendants who either pled guilty or were tried in six U.S. jurisdictions, three of which had recently attempted to eliminate or greatly reduce plea bargaining and three with few restrictions on plea bargaining. The results confirm some criticisms of plea bargaining, but refute others. More criminally experienced defendants and defendants who pled guilty at the earliest opportunity did not receive sentencing leniency. Moreover, to a large extent, the same variables predict sentence severity for guilty pleas and trials. In contrast, the results show that defendants convicted at trial received more severe sanctions than defendants who pled guilty, controlling for case severity, evidence, and offender characteristics The results also suggest that the jurisdictions which attempted to control plea bargaining through more centralized control of assistance succeeded in tightening the fit between case characteristics and sentences for both cases adjudicated by guilty plea and trial.     

MODEL MISSPECIFICATION: WHY AGGREGATION OF OFFENSES IN FEDERAL SENTENCING EQUATIONS IS PROBLEMATIC

This paper addresses two concerns that arise from Steffensmeier and Demuth (2001) analysis of federal sentencing and their misrepresentation of my analyses of sentence severity (Albonetti, 1997). My primary concern is to alert researchers to the importance of controlling for the guidelines offense that drives the sentencing process under the Federal Sentencing Guidelines. My second concern is to correct Steffensmeier and Demuth's (2001) errors in interpretation of my earlier findings of the effect of guidelines offense severity on length of imprisonment.     

Effects of Individual Characteristics on Plea Negotiations Under Sentencing Guidelines

ABSTRACT

Research conducted on the decision points between arrest and sentencing is scarce. There is a need for research to examine processing decisions. This research attempts to fill in the gap of knowledge about case processing decisions by focusing on plea negotiations; specifically, the examination of the effect of individual characteristics on the prosecutor's plea bargaining decisions in a sentencing guideline state by using two dependent variables (negotiated plea vs. a non-negotiated plea and a three category dependent variable simultaneously analyzing negotiated pleas, non-negotiated pleas, and bench or jury trials). The results indicate that race/ethnicity, sex, and age of the offender did not predict the likelihood of receiving a negotiated guilty plea. Using multinomial logistic regression, it was discovered that demographic characteristics were predictors of the decision to negotiate a guilty plea compared to the bench/jury trial conviction. Black offenders were more likely than white offenders to have their case go to trial rather than straight pleading or negotiating a guilty plea.     

Modeling the Distribution of Sentence Length Decisions Under a Guidelines System: An Application of Quantile Regression Models

How should sentencing disparity be assessed when decisions are constrained under a sentencing guidelines system? Much of the debate over the measurement of sentence disparity under a guidelines system has focused primarily on using specific values from within the sentencing grid (e.g., minimum recommended sentence) or on using interaction terms in regression models to capture the non-additive effects of offense severity and prior record on length of sentence. In this paper, I propose an alternative method for assessing sentencing disparity that uses quantile regression models. These models offer several advantages over traditional OLS analyses (and related linear models) of sentence length, by allowing for an examination of the effects of case and offender characteristics across the full distribution of sentence lengths for a given sample of offenders. The analysis of the distribution of sentence lengths with quantile regression models allows for an examination of questions such as: Do offender characteristics, such as race or offense severity, have the same effect on sentence length for the 10% of offenders who receive the shortest sentences as they do for the 10% of offenders who receive the longest sentences? I illustrate the application and interpretation of these models using 1998 sentencing data from Pennsylvania. Key findings show that the effects of case and offender characteristics are variable across the distribution of sentence lengths, meaning that traditional linear models assuming a constant effect fail to capture important differences in how case and offender characteristics affect punishment decisions. I discuss the implications of these findings for understanding sentencing disparitites, as well as other possible applications of quantile regression models in the study of crime and the criminal justice system.     

The Time Penalty: Examining the Relationship Between Time to Conviction and Trial vs. Plea Disparities in Sentencing

Although studies of sentencing routinely find that defendants who plead guilty receive relatively lenient sentences compared with similarly situated defendants convicted by trial, we have yet to fully understand the role of “mode of conviction” in the sentencing process. In particular, we know little about how the size of the disparity between guilty pleas and trial convictions may depend upon time in case processing, or the timing of pleas; that is, when during the process defendants plead guilty. This is a considerable issue, as “time” often is central to explanations given for plea-trial disparities. The current study examines this central, yet seldom empirically captured, dimension of the sentencing process. Using information gathered in an ancillary data collection effort operated under the supervision of the American Terrorism Study, we differentiate between the mode of conviction and time to conviction and explore the role of “time” in sentence severity, especially with regard to the plea-trial disparity. While consisting of defendants identified in connection with terrorism investigations, and sentenced in federal courts, our study takes advantages of a unique opportunity to isolate the effects of time from the mode of disposition and to explore time correlates of sentencing outcomes. In doing so, we raise important questions about the multiple ways in which time and mode of conviction may affect sentencing more generally and contribute to the larger theoretical discussions of how punishment decisions are made.     

Lawlessness in the Federal Sentencing Process: A Test for Uniformity and Consistency in Sentence Outcomes

One of the important goals of the federal sentencing guidelines was to reduce inter‐judge disparity in sentencing. In this paper, we test the assumption that structuring discretion produced uniformity in federal sentencing and consistency in the process by which judges arrive at the appropriate sentence. We also examine whether background characteristics of judges affect the sentences they impose on similarly situated offenders. We used hierarchical linear modeling, nesting the offenders in the judges that sentenced them in order to examine the sentencing decisions of federal judges in three U.S. District Courts. While we found that significant variation between judges in sentencing is largely accounted for by our level 1 characteristics, we also found that judges arrive at decisions regarding the appropriate sentence in different ways, by attaching differential weights to several of the legally relevant case characteristics and legally irrelevant offender characteristics.     

有罪答辩与量刑减让

被告人的有罪答辩对其获得的量刑减让有着重要的作用和影响。在英美等国 ,有罪答辩是量刑减让的正当依据 ,但有罪答辩与量刑减让之间并不存在必然的因果关系 ,法官对被告人施以的量刑减让以及减让的程度 ,还需考虑犯罪的性质、被告人的基本情况等其他因素。同时 ,量刑减让制度对于被告人有罪答辩的作出又存在反作用。被告人有罪答辩的作出来自于律师、检察官和法官传递的量刑减让的信息 ,在英美等国 ,法官对量刑减让信息的披露是受到严格限制的。我国传统意义上的坦白属于被控人的一项法定义务 ,具有实体意义 ,不同于有罪答辩 ,故坦白从宽政策不具有正当性。与此同时 ,我国简易程序中对有罪答辩的量刑减让则具有正当性 ,但减让的实施较英美等国有较大的限制。     

Courtroom Context and Sentencing

This study provides an evaluation of the major policy shift in sentencing practices over the past half-century – namely the shift from indeterminate to determinant sentencing policies and the use of sentencing guidelines. The theoretical literature on courtroom organization and focal concerns informs this evaluation of determinate sentencing practices in Florida. Drawing from prior theoretical and empirical research, hierarchical linear and generalized linear models are estimated to assess courtroom effects on individual level sentencing outcomes. The findings document that location matters when sentenced in Florida. Specifically, the likelihood of being sentenced to prison and the length of sentence varies across counties, even after controlling for individual case and offender characteristics and a variety of contextual characteristics. Additionally, the influence of legal and extra-legal factors on prison in/out and sentence length decisions varies significantly across counties. Several court characteristics, including court size, caseload pressure and trial rate assert direct influence on a county’s likelihood of prison in/out and mean sentence length decisions.

     

Excessive Uniformity in Federal Drug Sentencing

The ideal of fair and proportionate punishment was a major impetus for federal sentencing reform. Observers of the current federal drug sentencing regime contend that the sentencing guidelines and mandatory minimums lead to the problem of “excessive uniformity” in which offenders of widely differing culpability receive similar sentences due to the dominance of drug quantity as a sentencing factor. This study investigates this phenomenon using the 1997 Survey of Inmates in Federal Correctional Facilities. Controlling for relevant offense, offender, and case processing variables, the analysis finds that the quantity-driven sentencing fails to account for important differences in offender culpability—resulting in excessively uniform sentences for offenders with highly dissimilar roles in the offense. The main policy implication of this research is that the central, organizing role of drug quantity in federal drug sentencing needs to be rethought. Indeed, effectively dealing with the problem of excessive uniformity will likely require the wholesale restructuring of how federal sentences for drug offenders are determined.

The Effect of Pretrial Detention on Sentencing in Two Federal Districts

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.     

论量刑精确制导

我国《刑法》第5条既是刑法的基本原则,也是量刑公正的一般标准,它要求量刑精确制导,最大限度地避免刑罚误差。实现量刑精确制导的根本出路是理论创新和方法创新,这主要表现在三个方面:(1)依法构建量刑标尺,将法定刑空间划分为200个刻度,把其中各种刑罚折算或者虚拟为有期徒刑的月数,明确1个刻度所体现的不同性质刑罚的度量,用以计算刑罚的轻重程度;(2)在正确定罪并找准法定刑的前提下,理性评价犯罪人具有的量刑情节,将其所反映的社会危害程度和人身危险程度用一定数值(积分)表示,借以计算行为人罪责的大小程度;(3)将量刑情节的轻重积分与量刑空间的轻重刻度按"1∶1"的标准相对应,前者在相应量刑空间中的读数,便是量刑公正的最佳适度。     

Sentencing Female Misdemeanants: An Examination of the Direct and Indirect Effects of Race/Ethnicity

Little is known about the predictors of sentencing for the typical female offender—one who commits a misdemeanor or lesser offense. Moreover, although ample discussions of racial/ethnic disparity in sentencing may be found in the extant literature, most researchers have focused on what happens to males who commit felonies. Thus, to help fill a void I examine the likelihood of receiving a jail sentence among a sample of cases for female misdemeanants. All were convicted in New York City's Criminal Court. I account for direct and indirect effects by estimating a causal model that predicts the sentencing outcome. Race/ethnicity did not directly affect sentencing. Indirect effects, however, were found. Black and Hispanic females were more likely to receive jail sentences than their White counterparts due to differences in socio‐economic status, community ties, prior record, earlier case processing, and charge severity.     

THE EFFECT OF VICTIM PARTICIPATION IN SENTENCING ON SENTENCE OUTCOME *

The role of victims in the criminal justice process has been a neglected area of research. In the past two decades, however, victims of crime have received increased attention, and recently this attention has centered on the involvement of victims in sentencing. This paper addresses the concerns of critics of the involvement of victims in sentencing and assesses the impact of victim participation on sentence outcome using felony crimes in one midwestern county. Analysis reveals that filing a victim impact statement has some effect on sentence outcome (probation versus incarceration), although offense and offender characteristics are of primary importance. Victim requests for a particular sentence do not influence the choice of sentence. Legal considerations largely explain length of imprisonment, although several of the victim-related variables have explanatory power. The implications of these results for the debate concerning victim participation are discussed.     

Paying Money for Freedom: Effects of Monetary Compensation on Sentencing for Criminal Traffic Offenses in China

The current study seeks to understand the role that monetary compensation plays on the joint occurrence of imprisonment and probation for criminal traffic offenses in China. We argue that monetary compensation influences sentencing decisions primarily by manipulating the probation terms in favor of the defendant. With monetary compensation directly increasing the chances of a more lenient punishment through extended probation as opposed to more severe penalties, we have found sentence lengths for criminal traffic offenses to be concentrated at 36 months, the maximum length eligible for probation. All available sentencing documents for criminal traffic offenses from 2014 to 2016 were retrieved from the China Judgments Online website. The final dataset contains 141,689 observations. Following a joint model approach using both sentence length and probation as outcomes, we utilized a Zero-Truncated-Generalized-Inflated-Poisson model to address the distributional characteristics of sentence length, such as discrete integers, non-zero values, and the concentration of data on certain points. To avoid detecting effects of little scientific importance due to our large sample size, all results were evaluated using bootstrapping techniques. We found that the likelihood of probation increases when monetary compensation is provided, but that compensation does not make a significant difference on the sentence length for those defendants receiving less than 36 months imprisonment. When considering the concentration of sentence lengths at specific values, monetary compensation was positively associated only with the chance of inflation at the value of 36 months, and the probation itself became insignificant in predicting sentence length. The significant positive relationship between monetary compensation and lenient sentencing outcomes suggests that compensation plays a crucial role in the Chinese judicial process. Our study will not only help researchers to better understand the legal process in China, but it will also benefit the larger community as an example of utilizing new sources of data.     

The Best Interests of the Child and the Sentencing of Offenders with Parental Responsibilities

There is a growing body of empirical research demonstrating that sentencing and other criminal justice decisions often have a detrimental, even traumatic impact upon an offender’s dependent children. Judges must balance numerous factors when making sentencing decisions, generally encompassing the protection of the public, the seriousness of the offence, and the personal circumstances of the offender. Should the probable impact of a sentence on an offender’s dependents be a significant factor to be weighed with these other factors in the process of sentencing? More specifically, when a court is sentencing an offender with parental responsibilities, does it have a duty to inquire about the potential impact of the sanction on the offender’s dependent child or children? Must it consider the principle of the best interests of the child or a child’s right to family life as a separate legal consideration in constructing a sentence? International human rights standards suggest that it does. After reviewing existing evidence on the potential hardship of sentencing decisions for an offender’s dependent children, the authors examine the experience of six countries in interpreting and applying these standards in their domestic laws, policies, and practices. They discuss some options for sentencing reforms in the broader context of efforts to reduce high rates of imprisonment in many countries and the need to address the differential impacts of criminal sanctions for primary caregivers and their children.     

Sentencing Female Drug Offenders: Reexamining Racial and Ethnic Disparities

This study analyzes the relationship between race/ethnicity and sentencing outcomes for female drug offenders in Florida. Grounded in the focal concerns perspective, the research examines whether, in the specific case of drug offenders, minority women are treated more harshly than White women. Interaction models are estimated to determine the influence of drug offense type on racial and ethnic sentencing disparities. Differences in sentencing outcomes are also examined following significant policy changes in the state. In general, the findings suggest that minority female drug offenders are disadvantaged at both the incarceration and sentence length decisions. It also appears that perceptions of dangerousness associated with female offenders' race/ethnicity and offense are incorporated into sentencing authorities' patterned responses. That is, the level of disparity between Black, Hispanic, and White females is conditioned by type of drug offense in the interaction models. The changes in sentencing policy also impact the role of race and ethnicity in sentencing decisions. By analyzing drug offenders exclusively, the current study clarifies the role of race in sentencing decisions for females. In contrast to prior research that examined all offense categories together, the current study suggests that for drug offenses, minority females may, in fact, be deemed more dangerous and culpable than White female drug offenders.     

Sentencing disparity: An analysis of judicial consistency

This paper reports the results of an analysis of judicial disparity in the sentencing of persons represented by legal-aid lawyers. Because the socioeconomic characteristics of legal-aid clients are fairly uniform, the analysis of such cases made it possible to explore the influence of case facts, system factors, and the judicial disparity of the sentences given in relatively similar situations. The analysis finds that case facts and offender characteristics, particularly prior record, are good predictors of sentence type and excellent predictors of sentence length. While there was some indication of judicial inconsistency in sentence-type decisions, that is, unexplained variation from case to case, there was little indication of strong individual judicial bias across the cases used in the analysis.     

The Direct and Indirect Effects of Offender Drug Use on Federal Sentencing Outcomes

Objectives

The federal sentencing guidelines constrain decision makers’ discretion to consider offenders’ life histories and current circumstances, including their histories of drug use and drug use at the time of the crime. However, the situation is complicated by the fact that judges are required to take the offender’s drug use into account in making bail and pretrial detention decisions and the ambiguity inherent in decisions regarding substantial assistance departures allows consideration of this factor. In this paper we build upon and extend prior research examining the impact of an offender’s drug use on sentences imposed on drug trafficking offenders.

Methods

We used data from three U.S. District Courts and a methodologically sophisticated approach (i.e., path analysis) to test for the direct and indirect (i.e., through pretrial detention and receipt of a substantial assistance departure) effects of an offender’s drug use history and use of drug at the time of the crime, to determine if the effects of drug use varies by the type of drug, and to test for the moderating effect of type of crime.

Results

We found that although the offender’s history of drug use did not affect sentence length, offenders who were using drugs at the time of the crime received longer sentences both as a direct consequence of their drug use and because drug use at the time of the crime increased the odds of pretrial detention and increased the likelihood of receiving a substantial assistance departure. We also found that the effects of drug use varied depending on whether the offender was using crack cocaine or some other drug and that the type of offense for which the offender was convicted moderated these relationships.

Conclusions

Our findings illustrate that there is a complex array of relationships between drug use and key case processing decisions in federal courts.     

Defending the Homeland: Judicial Sentencing Practices for Federal Immigration Offenses

In the last decade, immigration prosecutions in federal court have increased 165%, with immigration offenses comprising over 28% of the federal criminal caseload in 2008. Despite this increase, research has yet to fully examine the sentencing outcomes for these offenders. Exploration of sentencing outcomes for immigration offenders is particularly salient due to the racial/ethnic composition of these defendants and the documented history of disparate treatment of minorities at this decision point. To explicate these issues, we examine the sentence length of immigration cases to assess the impact of legal, extra-legal, and case-processing factors. We further disaggregate by offense type to explore if correlates of sentencing are consistent across specific categories of immigration violations. Finally, we examine southwestern border districts, which process over 70% of all cases, to assess their specific sentencing practices. Model results, theoretical implications, and avenues for future research are also discussed.