Sentencing

While there is nearly unanimous agreement among social scientists that the defendant's prior record is important in explaining the sentence imposed on the defendant, there is little agreement on the "best" or most appropriate measure of prior record to use in examining sentence disparity. This study provides an assessment of the utility of 11 commonly used measures of prior record. We find that the various measures are not interrelated highly and thus necessarily are not interchangeable. We also find that the measures of prior record affect sentence severity differently and that the relationships between these measures and sentence severity varies for black and white defendants.     

“THE LAW'S THE LAW,BUT FAIR IS FAIR:” RAPE SHIELD LAWS AND OFFICIALS' ASSESSMENTS OF SEXUAL HISTORY EVIDENCE*

Recently enacted rape shield laws, which restrict the introduction of evidence of the complainant's prior sexual conduct, have engendered considerable controversy. This paper examines the responses of judges, prosecutors, and defense attorneys in six major urban jurisdictions to a set of hypothetical cases in which evidence of the victim's past sexual conduct is at issue. The different kinds of sexual history evidence evoke different responses from officials, and the specific provisions of the six rape shield statutes also affect officials' judgments.     

FEDERAL SENTENCING AS A COMPLEX COLLABORATIVE PROCESS: JUDGES,PROSECUTORS, JUDGE–PROSECUTOR DYADS,AND DISPARITY IN SENTENCING

Investigations of how criminal justice actors contribute to variation in sentencing typically focus on the role played by the judge. We argue that sentencing should be viewed as a collaborative process involving actors other than the judge and that the role of the prosecutor is particularly salient. We also contend that the courtroom workgroup literature has suggested that sentences may vary depending on the particular judge and prosecutor to whom the case is assigned. By using a unique data set from three U.S. district courts (N = 2,686) that identifies both the judge and the prosecutor handling the case, we examine how the judge, the prosecutor, and the judge–prosecutor dyad contribute to variance in offender sentences. We do this by employing cross‐classified random‐effects models to estimate the variance components associated with judges, prosecutors, and judge–prosecutor interactions. The results indicate that disparity attributable to the prosecutor is larger than disparity from the judge. Moreover, the role that the judge plays is moderated by the prosecutor to whom the case is assigned, as the judge–prosecutor effect is consistently larger than other random effects across the models. We also find that results vary by judicial district.     

THE INFLUENCE OF BLAME AND BELIEVABILITY FACTORS ON THE PROCESSING OF SIMPLE VERSUS AGGRAVATED RAPE CASES*

In this study we test two hypotheses concerning the processing of simple and aggravated rape cases. First, we test the hypothesis that aggravated rape cases are taken more seriously than simple rape cases by decision makers in the criminal justice system and, thus, aggravated cases will result in more serious outcomes. Second, we test the hypothesis that the influence of factors relating to the blame and believability of a victim on case processing is greater in simple than in aggravated rape cases. Our results indicate that the characteristics and outcomes of aggravated and simple rape cases are surprisingly similar, and that there is little evidence of an interaction between type of case and victim characteristics.     

THE SUPREME COURTS POST-MIRANDA RULINGS: Impact on Local Prosecutors

Beginning in 1971, the Burger Court issued a series of rulings which chipped away at the Miranda v. Arizona ruling. This article analyzes the impact of this series of rulings on prosecuting attorneys from countries with a population of 100,000 or more. The results indicate that prosecutors perceive that the Court has changed the degree with which police must comply with Miranda and that prosecutors approve of this, but that prosecutors are not more likely to prosecute in cases where police committed alleged violations than they had been before 1971. This seems due to the fact that prosecutors take their cues more from local courts, which reportedly requires strict compliance with Miranda, than from the Supreme Court.     

ON THE USE OF THE TOTAL INCARCERATION VARIABLE IN SENTENCING RESEARCH*

This study calls into question the use of the total incarceration response variable incorporated into sentencing studies over the past 30 years. Specifically, using data from the Pennsylvania Commission on Sentencing (PCS), it argues–and reveals–that prison and jail represent two distinct institutions, and that the judge's decision on disposition should take that factor into account. It recommends that researchers should therefore reconsider use of the total incarceration variable, which combines prison and jail into a single response category.     

THE EFFECT OF IMPRISONMENT ON RECIDIVISM RATES OF FELONY OFFENDERS: A FOCUS ON DRUG OFFENDERS*

The purpose of this study is to evaluate the deterrent effect of imprisonment. Using data on offenders convicted of felonies in 1993 in Jackson County (Kansas City), Missouri, we compare recidivism rates for offenders sentenced to prison with those for offenders placed on probation. We find no evidence that imprisonment reduces the likelihood of recidivism. Instead, we find compelling evidence that offenders who are sentenced to prison have higher rates of recidivism and recidivate more quickly than do offenders placed on probation. We also find persuasive evidence that imprisonment has a more pronounced criminogenic effect on drug offenders than on other types of offenders.     

THE IMPACT OF THE ETHNICITY AND GENDER OF DEFENDANTS ON THE DECISION TO REJECT OR DISMISS FELONY CHARGES*

While social scientists have long been interested in the issue of racial and sexual discrimination within the criminal justice system, they have concentrated on the decisions to convict and sentence and have paid relatively little attention to the decision to prosecute. This study examines the issue of pretrial discrimination by focusing on the prosecutor's decision to reject or dismiss charges against black, Anglo, and Hispanic male and female defendants in Los Angeles. The data reveal a pattern of discrimination in favor of female defendants and against black and Hispanic defendants. Hispanic males are most likely to be prosecuted fully, followed by black males, Anglo males, and females of all ethnic groups.     

U.S. ATTORNEYS AND SUBSTANTIAL ASSISTANCE DEPARTURES: TESTING FOR INTERPROSECUTOR DISPARITY*

An important and highly discretionary component of the federal sentencing guidelines is the downward departure for providing substantial assistance. Critics charge that the substantial assistance departure, which requires a motion by the prosecutor, may produce the type of unwarranted sentencing disparity that the guidelines were intended to eliminate. Research reveals, for example, that jurisdictional variations are evident in the use of substance assistance departures (Johnson, Ulmer, and Kramer, 2008; Nagel and Schulhofer, 1992), and that the likelihood of receiving the departure is affected by legally irrelevant offender characteristics, which include race, ethnicity, and gender (Mustard, 2001). The purpose of this article is to extend this research by exploring the degree to which decisions regarding substantial assistance departures vary across prosecutors. Using data on offenders sentenced in three U.S. district courts and a multilevel modeling strategy, we investigate whether interprosecutor disparity exists in the likelihood of substantial assistance departures and in the criteria that prosecutors use in deciding whether to file a motion for a substantial assistance departure. Findings indicate that significant interprosecutor variation remains after taking into account offender characteristics, case characteristics, and the district in which the case is adjudicated.