Agenda building in criminal justice: The case of determinate sentencing

An understanding of policy development, change and implementation is a necessary ingredient in analysis of criminal justice policy. This paper attempts to describe the process of policy formation in criminal justice within the framework, of “Agenda Building.” Through case studies of sentencing reform policy changes in two states, the applicability of the Agenda Building model to the study of criminal justice policy is demonstrated. The argument is advanced that, through the use of such approaches to the study of justice policy change, we will enhance our understanding of the diversity of specific policies and practices which can emerge from an apparently unified reform movement. Further, it is suggested that an enhanced understanding of policy development will allow reformers to better direct and control policy formulation.     

Displaced discretion under Ohio sentencing guidelines

The argument that curbing judicial sentencing discretion generates more prosecutorial discretion at earlier decision points in case processing received little empirical attention beyond Miethe's (1987) before/after study of the Minnesota guidelines. This article presents an examination of whether Ohio's sentencing reform resulted in significant changes in prosecutorial decisions related to indictment severity, dropped charges, charge reductions, and overall plea bargains. The implementation of determinate sentencing guidelines corresponded with a significant yet modest increase in the likelihood of charge reductions only. Some changes also occurred in the specific effects of various defendant characteristics on some of the outcomes examined, but these changes did not uniformly result in harsher dispositions for defendants facing greater social and economic disadvantage. Similar to Miethe's observation regarding Minnesota's sentencing scheme, any increase in levels of prosecutorial discretion that might have occurred under Ohio's latest scheme had not resulted in substantive extra-legal disparities in case dispositions.     

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.     

Victim participation in sentencing and satisfaction with justice

This article reviews the issues surrounding victim participation in the criminal justice system. It then examines the extent of victims' involvement in the process and its impact on their satisfaction with justice in one midwestern county. Multiple regression reveals that satisfaction with the sentence is influenced most strongly by the victims' feelings that the sentence was fair, although offense type, victim-offender relationship, and fulfillment of victims' expectations also have some explanatory power. Analysis also reveals that victims' satisfaction with the criminal justice system as a whole is influenced first and foremost by their satisfaction with the sentence. The implications of these results for the debate concerning victim participation in the process via the victim impact statement are discussed.     

Public sentencing rallies in China: The symbolizing of punishment and justice in a socialist state

This article explores the functions and format of the public sentencing rallyin China. The public sentencing rally is a judicial event in which the verdictand sentence of a criminal case already decided in court is announced publicly,in a venue such as a stadium or auditorium. Sentencing rallies provide an important organizational and operational avenue through which communicativeactions of blaming and shaming are constituted and relayed to their socialaudience. They can be convened for one individual or for a group of convictedcriminals, usually those convicted of serious crimes, crimes that attract somepublic attention or crimes that are targeted during anti-crime campaigns. Theirfunction is to educate and deter through a process of ritual and representation.They are a format in which the emotive representations of public shaming and gestures of moral indignation can be acted out. Rallies also represent to theirsocial audience, a conceptual framework through which to interpret thecharacteristics of judicial authority in post-1978 China. This aspect ofrepresentation involves two types of authority, the moral authority of thecourt to mete out popular justice and the institutional authority of the courtrepresented in the aspirational claims of institutional reform – proceduralpropriety, professionalism and the strict adherence to the law.     

Penal ideology, sentencing and the legitimacy of trial justice

The paper explores the link between penal ideology and international trial justice from the perspective of sentencing. The argument is based on the premise that the perceived legitimacy of punishment is directly related to effective governance in criminal justice. As such, loss of faith, or lack of moral empathy by individuals and communities with the ideologies, processes and outcomes of punishment compromises the ability of criminal trials to function effectively in maintaining the ‘rule of law’. The paper argues that more emphasis should be given explaining the moral foundations that underpin perceptions of ‘justice’ in sociological accounts of the ‘reality’ of sentencing, and proposes an analytical framework for conceptualising this. Adopting this approach, the paper draws on examples from national and international criminal justice to illustrate how the hegemony of penal ideology and its implementation compromises the ability of sentencing outcomes to resonate with the trial‘s ‘relevant audience’. The paper then focuses on how penal ideology influences the construction of the factual basis for sentencing in international criminal trials, and considers the consequences of this for the perceived ‘legitimacy’ of international trial justice.     

Exploring the relationship between sentencing and the legitimacy of trial justice

This paper argues that recent sustained criticism of judicial sentencing in England and Wales reflects a much deeper malaise afflicting the legitimacy of punishment in the late post-modern era. It suggests that this phenomenon not only threatens the liberal-consensus view of the judiciary as pivotal to the rule of law, but also undermines the rationality which underpins conventional paradigms of criminal justice more generally. The paper goes on to argue that there are important lessons to be learned from engaging with the debates about punishment and sentencing which are taking place on the international stage, suggesting that the crisis in domestic sentencing is really symptomatic of a more fundamental crisis in penal legitimacy affecting the whole of civil society; one that touches upon the role of punishment in the governance of so-called democratic states. The paper concludes that the time may have come to modify the predominant neo-liberal paradigm prevalent in western democracies by developing notions of punishment and sentencing as relational contexts which provide meaningful links between trial outcomes and aspirations for justice.     

Determinate sentencing, formal rationality, and khadi justice in Maine: An application of Weber's typology

In the 1980s over twenty-five jurisdictions, including Maine, changed their sentencing policies. Nevertheless, only a few states approximated the goal of determinancy proposed by advocates of reform. Recent extensions of Weber's work on law finding to the area of punishment provide a means to reconceptualize the problem addressed by advocates of determinacy. This article refocuses debates about sentencing reform in terms of Weber's concept of formal rationality.It explains why one state—Maine—did not reduce judicial disparities and why determinacy failed to be introduced. Sentences from an experiment conducted among all members of Maine's judiciary are compared with guideline sentences in two states—Minnesota and Pennsylvania. This comparison clearly supports national criticism of Maine's failure to reduce judicial disparities in sentences. It is concluded that widespread sentencing disparities in Maine result from a criminal code legitimating substantively irrational decisionmaking or khadi justice. No attempt was made to move toward a formally rational system advocated by proponents of determinacy.     

Regulatory decision making: structure and agency in the development of the organizational sentencing guidelines

The United States Sentencing Commission promulgated federal organizational sentencing guidelines in 1991. The final product eroded the guidelines’ original severity, as drafts were rejected over a period of 4 years. The initial goal of the Commission was to implement organizational guidelines that were on par with individual-level sanctions in order to remove any suggestion that powerful corporations receive lesser penalties than individuals convicted of “street crimes”. This study analyzes the erosion of the Commission’s stated goal by evaluating the organizational structures, individual and group characteristics, and the social, political, economic, and historical contexts involved in the evolution of federal sentencing guidelines for organizations. Results indicate that, while structural-level variables played a large part in explaining the development of the guidelines, a more accurate and complete understanding of this process is possible by including an analysis of the individual-level characteristics of Commissioners, including their professional backgrounds, ideological perspectives, styles of leadership, and future goals.

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The sentencing reform act of 1984: A bold approach to the unwarranted sentencing disparity problem

Conclusion In 1984, after years of study and thorough debate, a bipartisan majority of the Congress enacted perhaps the most far-reaching reform of the federal criminal justice system in the history of the United States. The Sentencing Reform Act and the federal sentencing guidelines are now beginning to produce data indicating that the objectives of avoiding unwarranted disparity and invidious discrimination are being achieved.After an uncertain beginning, the guidelines are gaining acceptance by courts and criminal justice practitioners. As one appellate court observed in admonishing lower courts that the guidelines must be respected:We have embarked on a new course. Only time will tell whether the use of the guidelines will result in an improvement over the old system. But unless we follow the spirit and written directions of the guidelines, we will never know if they have been given a fair test. They at least deserve that.Indeed, the bold new approach to sentencing that is being followed today in federal courthouses throughout the United States deserves an opportunity to succeed, given its many beneficial features and the lofty goals toward which the reforms are directed. While ample work remains for the United States Sentencing Commission to monitor and improve the guidelines, indications at this still early date are that the experiment is succeeding.An earlier version of this paper was presented at the fifth conference of the Society for the Reform of Criminal Law, Parliament House, Edinburgh, Scotland, August 5–9, 1990. The views expressed herein are those of the authors and do not necessarily represent the official position of the United States Sentencing Commission.B.A., Davidson College 1964; J.D., University of South Carolina School of Law 1967.B.A., Ohio State University 1974; M.S., Arizona State University 1980; M.A., University of California, Santa Barbara, 1983.B.S., Clemson University 1971; M.S., Clemson University 1975; J.D., University of South Carolina School of Law 1978.     

Sentencing Guidelines and focal concerns: The effect of sentencing policy as a practical constraint on sentencing decisions

Contemporary research on criminal sentencing has analyzed sentencing under numerous sentencing policies, yet the effect of sentencing policy on outcomes and disparity is not known. A variety of sentencing guidelines systems, one of the more common sentencing policies, exists throughout the country. In addition, recent Supreme Court decisions regarding sentencing guidelines are likely to produce alterations to several state sentencing policies over the next few years. Using data from the state of Florida, the current study examines the effects of policy transformation on sentencing disparity within the focal concerns of sentencing perspective. The authors view sentencing guidelines as a practical constraint on sentencing decisions that influence other key variables. The results indicate that sentencing policy transformation has an important effect on both sentencing decisions and on the factors that shape those decisions. The findings suggest that future sentencing research and theoretical development would benefit from incorporating measures of policy differences in its analyses.