Dangerous Offenders: Some Problems of Management

Dangerous behaviour, for the purpose of this paper is confined to the commission of serious harm to others and not to self. Such behaviour is examined within the context of definnitions of such behaviour, and issues that arise in respect of sentencing (including past and current practices). Certain ethical issues are considered and the paper concludes with a detailed consideration of aspects of management.     

Attitudes toward sentencing guidelines and simulated sentencing among Missouri circuit court judges

This study examines attitudes toward sentencing guidelines and simulated sentencing practices among Missouri circuit court judges. In addition, the study investigates the efficacy of sentencing workshops by comparing judges who attended or did not attend workshops. All Missouri circuit court judges were mailed surveys and 97 judges responded. Results indicated that judges generally felt positive toward Missouri’s voluntary sentencing guidelines, but often failed to refer to the guidelines when sentencing sample cases. Attendance at a sentencing workshop was not associated with attitudes about Missouri sentencing guidelines or sentencing in simulated cases. Sentencing in simulated cases varied by nature of the crime and circuit type. Judges from metropolitan areas tended to sentence more leniently than judges from rural areas. In their written comments, many judges expressed fear about the possibility of mandatory guidelines. Results suggest that there is ambivalence among Missouri judges over the acceptance and use of sentencing guidelines.     

Is the Offense Serious Axis Free of Extralegal Influence?: Assessing the Predictors of a ‘Legally Relevant’ Guideline Criterion

Grid based sentencing guidelines, composed of offense seriousness and offender criminal history axis, have become a staple of US sentencing in recent decades. As such, extensive research explores whether they reduce extralegal sentence disparity. However, to date, no study has examined whether extralegal disparity is present in how either axis of guideline sentencing are constructed. Using federal sentencing commission data along with both single and multi-level analyses, this research explores the legal and extralegal factors that predict one of these key grid axes: the offense seriousness score. The results call into question not only some assumptions underlying guideline sentencing but also recent analytical strategies for assessing sentencing outcomes in guideline systems.     

Judgment and Calculation in the Selection of Sentence

Formal sentencing guidelines, which are increasingly seen as the best means of eliminating unwarranted disparity, have undoubted merits. Well-crafted guidelines can promote more transparent and coherent sentencing practices. Their primary goal will usually be to ensure that similarly situated offenders convicted of similar offences receive broadly similar penalties. This, in turn, should increase public confidence in the criminal justice system. Judicially-developed guidance has its own advantages. A judgment, unlike a statute or a formal guideline, must persuade its audience as to the merits of the decision reached. Appeal court sentencing judgments must (or ideally should) engage in some degree of moral reasoning so as to explain why a particular offence or offender deserves the penalty that is being imposed or upheld. Adjudication of this nature plays an important role in stimulating debate and deliberation about the purposes of punishment, the appropriate use of particular sentencing options, the relevance of various offence- and offender-related factors and other fundamental questions about which opinions will inevitably change over time. Although they may have distinct epistemic properties and different objectives, formal guidelines and judicially-developed principles have their own unique merits. We should therefore aim for a system that incorporates the best qualities of both. In practice, this means that guidelines should be so constructed as to leave space for judicial deliberation about fundamental principles and current practice. In this way, guideline creators and courts can continue to learn from each other.     

Warranted and Unwarranted Complexity in the U.S. Sentencing Guideline

The U.S. Sentencing Guidelines are highly complex because of both initial policy decisions and subsequent pressures from Congress and appellate courts. The two initial policy decisions that were largely responsible for this complexity were (a) basing guidelines on "relevant conduct" rather than on the offense of conviction and (b) specifying in detail the number and precise sentencing value of aggravating and mitigating factors. Given this initial bias toward specificity, it was inevitable that the complexity in the guidelines would become worse as Congress pressed for further distinctions and the Sentencing Commission responded to those statutory actions. The complexity of the U.S. Sentencing Guidelines has detrimental effects on both the perceived and actual fairness of the laws. Although statistical analyses indicate that the most complex guidelines (as indexed by the length of each guideline, the length of application notes for each guideline, and the number of amendments to each guideline) are also those that are most frequently used, there is also evidence that at least some of the complexity in the guidelines (the number of specific offense characteristics in each guideline and the number of cross references) is unwarranted.     

Direct and Indirect Effects of Case Complexity, Guilty Pleas, and Offender Characteristics on Sentencing for Offenders Convicted of a White-Collar Offense Prior to Sentencing Guidelines

Previous research on the punishment of offenders convicted of a white-collar offense estimated models that specify only direct effects of defendant characteristics, offense-related variables, and guilty pleas on sentence severity. Drawing from conflict or labeling theories, much of this research focused on the effects of offender's socioeconomic status on sentence outcomes. Findings from this research are inconsistent about the relationship between defendant characteristics and sentence severity. These studies overlook how differences in case complexity of white-collar offense and guilty pleas may intervene in the relationship between offender characteristics and sentence outcomes. This study seeks to contribute to an understanding of federal sentencing prior to the federal sentencing guidelines by testing a legal-bureaucratic theory of sentencing that hypothesizes an interplay between case complexity, guilty pleas and length of imprisonment. This interplay reflects the interface between the legal ramifications of pleading guilty, prosecutorial interests in efficiency and finality of case disposition in complex white-collar cases, and sentence severity. Using structural equation modeling, a four-equation model of sentencing that specifies case complexity and guilty pleas as intervening variables in the relationship between offender characteristics and length of imprisonment is estimated. Several findings are noteworthy. First, the hypothesized interplay between case complexity, guilty pleas, and sentence severity is supported. Second, the effect of offender's educational attainment on sentence severity is indirect via case complexity and guilty pleas. Third, offender's race and gender effect length of imprisonment both directly and indirectly through the intervening effect of case complexity and guilty pleas. These findings indicate the need to specify sentencing models that consider the direct and indirect effects of offender characteristics, offense characteristics, and guilty pleas on judicial discretion at sentencing.     

The impact of state sentencing policies on the U.S. prison population

This article examines the aggregate effects of neoclassical sentencing reforms on three often contested outcomes of these reforms. The rate of new court commitments, the average length of time inmates serve, and prison population rates across the fifty U.S. states and the District of Columbia are examined. Data from 1973 to 1998 across these jurisdictions are analyzed using hierarchical multivariate linear models (HMLM). Results show that on the aggregate, sentencing reforms are not directly related to changes in state prison populations; however, abolition of parole is negatively associated with state prison population rates. Two types of sentencing reforms, the voluntary sentencing guidelines and the ‘three-strikes’ laws are indirectly related to changes in prison populations and have opposite influences on rates of new court commitments. Of six sentencing practices examined, not one is associated with length of incarceration. These results do not support the contention that neoclassical changes to the nation's sentence policies account for the rapid increase in the state prison populations between the early 1970s and late 1990s.     

THE APPRENDI‐BLAKELY CASES: SENTENCING REFORM COUNTER REVOLUTION?

Recent Supreme Court decisions have extended jury trial rights and beyond‐reasonable‐doubt proof standards to certain sentence‐enhancement facts. The first two cases, Apprendi v. New Jersey and Ring v. Arizona, were narrow in scope and relatively uncontroversial. But Blakely v. Washington marked a substantial expansion of the rationale and scope of Apprendi, and threatened to invalidate entire sentencing reform systems, both legally‐binding guidelines of the type at issue in Blakely and it's sequel, Booker v. United States, and statutory determinate sentence systems like the one invalidated in Cunningham v. California. Each of these decisions has potential effects not only on sentencing severity and disparity in the cases controlled by that decision, but also on prosecutorial, legislative, and sentencing commission measures designed to comply with the decision, avoid it, and/or mitigate its impact. Field resistance and avoidance measures are likely to be stronger in jurisdictions where the existing sentencing system enjoyed broad support; in such jurisdictions, resistance may be particularly strong to the more controversial Blakely ruling. Impact assessments must therefore carefully distinguish the separate impacts of Apprendi and Blakely in each jurisdiction being studied, and the extent of support for the existing sentencing system. Such assessments should also examine pre‐existing trends and other independent sources of change; leadership by sentencing commissions or other officials in crafting responsive measures; structural and other features of the sentencing system which render compliance more or less difficult; and second‐stage effects, on sentencing, prosecutorial, or sentencing policy decisions, that reflect the prior compliance, avoidance, and mitigation measures adopted in that jurisdiction. The greatest long‐term effects may be on prosecutorial, legislative, and commission decisions, rather than on sentencing outcomes.     

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.

     

RACIAL AND ETHNIC DISPARITIES IN SENTENCING DEPARTURES ACROSS MODES OF CONVICTION*

Recent analyses of guideline sentencing practices have demonstrated that sentences departing from guidelines serve as a significant locus of racial/ethnic and other extralegal disparity. Little is known, however, about the ways that different courtroom processes, such as modes of conviction, condition these effects. Using recent data from the Pennsylvania Commission on Sentencing (PCS), I analyze the overall effects of race/ethnicity and other factors on judicial decisions to depart from the sentencing guidelines, and then I reexamine these relationships according to four modes of conviction (non‐negotiated pleas, negotiated pleas, bench trials, and jury trials). I argue that the mode of conviction provides a useful indicator of the differential exercise of discretion by different courtroom actors in the sentencing process. As such, it is likely to condition the use of stereotypical patterned responses, thus moderating the effects of race/ethnicity and other relevant sentencing factors. Findings support this expectation, demonstrating that extralegal effects vary considerably across modes of conviction. These results raise important questions about the role of different courtroom actors in contributing to racial and ethnic disparities under sentencing guidelines.     

Developing Sentencing Guidelines in Massachusetts: A Work in Progress

Sentencing guidelines legislation is currently under consideration by the Massachusetts legislature. This paper discusses the process used by the Massachusetts Sentencing Commission in formulating the sentencing guidelines legislation. The conceptual model and key substantive considerations associated with the sentencing guidelines are summarized, with special attention to two salient issues – intermediate sanctions and mandatory sentencing and their relationship to the sentencing guidelines. The paper concludes with a discussion of the reactions to the guidelines legislation and the prospects for passage.     

SENTENCING AND UNWARRANTED DISPARITY: AN EMPIRICAL ASSESSMENT OF THE LONG-TERM IMPACT OF SENTENCING GUIDELINES IN MINNESOTA*

Using an interrupted time-series design, this research note analyzes the long-term effect of Minnesota's sentencing guidelines on reducing unwarranted disparity in sentencing outcomes that fall within their scope of authority. Unwarranted disparity is defined as residual variation not attributable to legally mandated sentencing factors. Findings suggest that although the sentencing guidelines initially reduced disparity for the no prison/prison sentencing decision, inequality began to revert to preguideline levels as time passed. Further analysis revealed that the guidelines had a permanent impact on reducing disparities in decisions on the length of prison sentence. Overall we observed an 18% decline in disparity for the no prison/prison outcome and a 60% reduction in inequality for the judicial decision as to length of prison sentence. Two explanations for the reversionary trend in the no prison/prison series are highlighted.     

COURT COMMUNITIES UNDER SENTENCING GUIDELINES: DILEMMAS OF FORMAL RATIONALITY AND SENTENCING DISPARITY

Efforts to structure sentencing through guidelines involve a fundamental dilemma for the sociology of law—guidelines attempt to emphasize formal rationality and uniformity (Savelsberg, 1992) while allowing discretion to tailor sentences to fit situations and characteristics of individual defendants when courts deem it warranted (substantive rationality). This exercise of substantive rationality in sentencing based on "extralegal" criteria deemed relevant by local court actors risks the kind of unwarranted disparity that guidelines were intended to reduce. We view local courts as arenas in which two sets of sentencing standards meet—formal rational ones articulated by guidelines vs. substantive, extralegal criteria deemed relevant by local court actors. We use statistical and qualitative data from Pennsylvania, a state whose courts have operated under sentencing guidelines for over a decade. Our analysis examines extralegal differences in three county courts' sentencing outcomes, and then documents ways in which substantive rational sentencing criteria are intertwined with defendants' exercise of their right to trial and their race and gender.     

THE EFFECT OF GENDER ON THE DECISION TO INCARCERATE BEFORE AND AFTER THE INTRODUCTION OF SENTENCING GUIDELINES*

The present study explores the relationships between gender and imprisonment decisions in Minnesota before and after the introduction of sentencing guidelines. Results from a series of logistic regression models indicate that gender alone did not have a significant impact on the likelihood of imprisonment, but women with dependent children were significantly less likely to be imprisoned before sentencing guidelines and in the years subsequent to their implementation. The findings suggest that despite the introduction of sentencing reforms, court officials tend to return to issues of substantive justice, and they appear unable to shed their individual or organizational ideas of fairness in sentencing.     

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.     

英美法系国家量刑指南制度的比较研究

量刑指南是指导法官裁量刑罚的准则.为了防止量刑偏差和量刑失衡问题,限制法官的自由裁量权,英美法系国家普遍制定了明确的量刑指南.其中,美国量刑指南制度是中国刑法理论研究较多的一个问题.实际上,在英美法系领域,产生了三种不同模式的量刑指南制度:美国数量化量刑指南、英国论理式量刑指南和澳大利亚信息化量刑指南.相比较而言,英国量刑指南制度对我国量刑制度的改革更具参考和借鉴意义.     

Structured Sentencing in Florida: Is the Experiment Over?

This article considers the history of structured sentencing in Florida, beginning with initial efforts to establish sentencing guidelines in 1977 and culminating in legislative action that abolishes the guidelines effective 1 October 1998 and establishes the Florida Criminal Punishment Code effective the same date. The conclusion of the article is that structured sentencing has never been widely accepted in Florida and that the Florida Criminal Punishment Code will probably be received in the same manner. Sentencing guidelines have been perceived by prosecutors and law enforcement officials as too lenient and by judges as too restrictive on their discretion. Outside factors such as prison population growth and political concerns have had a tremendous effect on sentencing policy. It is unlikely that the process of constant ferment and change in the Florida sentencing system will end any time soon since the Florida Criminal Punishment Code embodies essentially the same structure and principles as the guidelines it replaces.     

Deviation from sentencing guidelines: The issue of unwarranted disparity

There has been a recent trend toward sentencing guidelines in the United States, and Florida followed this pattern by adopting sentencing guidelines in 1983. The present study examined whether several extra-legal variables excluded from the guidelines influenced the elimination of unwarranted sentencing disparity following the implementation of Florida's guidelines. Age seemed to have no influence but the factors of whether there was a plea or trial, whether there was a probation or community control violation, and sex all influenced unwarranted sentencing disparity in varying degrees. The policy implications of these findings for developing sentencing guidelines are discussed.