DISCRETION AND DISPARITY UNDER SENTENCING GUIDELINES: THE ROLE OF DEPARTURES AND STRUCTURED SENTENCING ALTERNATIVES*

This article examines the use of alternative sentencing provisions as mechanisms for departing from sentencing guidelines in Washington State and as structural sources of unwarranted sentencing disparity. The authors argue that these structural features of guidelines not only serve as “windows of discretion” through which disparities arise, but they also may encourage disparities by requiring consideration of substantive criteria that disadvantage certain offender groups. The analyses find that males and minority offenders are less likely to receive alternative sentences below the standard range, but that race‐ethnicity and gender have inconsistent effects on departures above the standard range. Theoretical implications of the study are discussed.     

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.     

TRANSFERRED JUVENILES IN THE ERA OF SENTENCING GUIDELINES: EXAMINING JUDICIAL DEPARTURES FOR JUVENILE OFFENDERS IN ADULT CRIMINAL COURT*

This study contributes to contemporary research on the punishment of juvenile offenders in adult court by analyzing the use of guidelines departures for transferred juveniles in two states, one with presumptive sentencing guidelines (Pennsylvania) and one with voluntary guidelines (Maryland). Propensity score matching is first used to create more comparable samples of juvenile and young adult offenders, and then Tobit regressions are employed to estimate the effect of juvenile status on the likelihood and length of departures. Our findings indicate that juvenile status significantly affects the use of upward departures in Pennsylvania, and the use of both downward and upward departures in Maryland. Judicial reasons for departure are examined to provide additional insight into the complex dynamics surrounding exceptional sentences for juvenile offenders sentenced in adult court.     

THE SOCIAL CONTEXT OF GUIDELINES CIRCUMVENTION: THE CASE OF FEDERAL DISTRICT COURTS*

Recent scholarship on criminal punishments increasingly highlights the importance of courtroom social contexts. Combining recent data from the U.S. Sentencing Commission (FY1997–2000) with aggregate data on federal districts, the current study examines interdistrict variations in the application of downward departures from the federal sentencing guidelines. Findings indicate that substantial variation exists in the probability of both prosecutor‐initiated substantial assistance departures and judge‐initiated downward departures. This variation is accounted for, in part, by organizational court contexts, such as caseload pressures, and by environmental considerations, such as the racial composition of the district. Additional evidence suggests that individual trial penalties and race disparities are conditioned by aggregate court contexts. Drawing on interviews with federal justice personnel, this article concludes with a discussion of future directions for research on federal guidelines departures. Part of the glory of the federal system…is that you've got this one big organization, but it can be molded to different needs…
‐ An assistant U.S. attorney ‐     

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.     

CONTEXTUAL DISPARITIES IN GUIDELINES DEPARTURES: COURTROOM SOCIAL CONTEXTS,GUIDELINES COMPLIANCE,AND EXTRALEGAL DISPARITIES IN CRIMINAL SENTENCING1

This study examines the theoretical and empirical linkages between criminal court social contexts and the judicial use of sentences that deviate from the recommendations of sentencing guidelines. Individual sentencing data from the Pennsylvania Commission on Sentencing (PCS) are combined with county‐level measures of social context to examine predictions about the role courtroom characteristics play in judicial departures. Results from hierarchical analyses suggest that the likelihood of departure varies significantly across courts, even after accounting for variations in individual case characteristics. Several measures of courtroom social context—including the size of the court, its caseload pressure and the overall guidelines compliance rate—are significantly related to the individual likelihood of receiving a departure sentence. Moreover, the social context of the court also conditions the influence of various individual‐level sentencing considerations. Findings are discussed in relation to contemporary theoretical perspectives on courtroom decision making and future directions for research on contextual disparities in criminal sentencing are suggested.     

RACIAL AND ETHNIC DIFFERENCES IN PRETRIAL RELEASE DECISIONS AND OUTCOMES: A COMPARISON OF HISPANIC,BLACK, AND WHITE FELONY ARRESTEES*

The present study uses data on the processing of felony defendants in large urban courts to examine Hispanic, black, and white differences at the pretrial release stage. The major finding is that Hispanic defendants are more likely to be detained than white and black defendants. And, racial/ethnic differences are most pronounced in drug cases. In fact, Hispanic defendants suffer a triple burden at the pretrial release stage as they are the group most likely to be required to pay bail to gain release, the group that receives the highest bail amounts, and the group least able to pay bail. These findings are consistent with a focal concerns perspective of criminal case processing that suggests Hispanics as a newly immigrated group are especially prone to harsher treatment in the criminal case process.     

DOWNWARD DEPARTURES FOR SERIOUS VIOLENT OFFENDERS: LOCAL COURT “CORRECTIONS” TO PENNSYLVANIA'S SENTENCING GUIDELINES*

We examine downward departures for serious violent offenders, using quantitative and qualitative data from Pennsylvania. We find that offense severity and prior record have negative direct effects on downward departures, but a positive interaction effect on them. Offenders convicted of aggravated assault, those who plead guilty, young black women, and offenders sentenced in large urban courts are more likely to receive downward departures, whereas those convicted by trial, young Hispanic males, and offenders sentenced in small rural courts are less likely to receive them. We argue that downward departures represent local “corrections” to guideline recommendations when there is a mismatch between guidelines and local court actors' definitions of key focal concerns of sentencing for serious violent offenders.     

THE POWER OF DIVERSION: INTERMEDIATE SANCTIONS AND SENTENCING DISPARITY UNDER PRESUMPTIVE GUIDELINES*

Fiscal constraints and shifting political climates in corrections have recently led to a renewed interest in intermediate punishments. Despite their growing prevalence, though, relatively little empirical research has examined the judicial use of alternative sanctions as a sentencing option. By using 3 years of data from the Pennsylvania Commission on Sentencing (PCS), this study investigates little‐researched questions regarding the use of sentencing alternatives among offenders and across contexts. Results indicate that male and minority offenders are the least likely to receive intermediate sanctions, both as a diversionary jail or prison sentence and as a substitute for probation. The probability of receiving an intermediate sanction also varies significantly across judges and court contexts and is related to county‐level funding for these programs, among other factors. Findings are discussed as they relate to contemporary theoretical perspectives on the perceived suitability of intermediate punishments and on the unique role that offender agency plays in the sentencing of these cases. Directions for future research are discussed.     

CUMULATIVE DISADVANTAGE: EXAMINING RACIAL AND ETHNIC DISPARITY IN PROSECUTION AND SENTENCING

Current research on criminal case processing typically examines a single decision‐making point, so drawing reliable conclusions about the impact that factors such as defendants’ race or ethnicity exert across successive stages of the justice system is difficult. Using data from the New York County District Attorney's Office that tracks 185,275 diverse criminal cases, this study assesses racial and ethnic disparity for multiple discretionary points of prosecution and sentencing. Findings from multivariate logistic regression analyses demonstrate that the effects of race and ethnicity vary by discretionary point and offense category. Black and Latino defendants were more likely than White defendants to be detained, to receive a custodial plea offer, and to be incarcerated—and they received especially punitive outcomes for person offenses—but were more likely to benefit from case dismissals. The findings for Asian defendants were less consistent but suggest they were the least likely to be detained, to receive custodial offers, and to be incarcerated. These findings are discussed in the context of contemporary theoretical perspectives on racial bias and cumulative disadvantage in the justice system.     

Gender Disparities in Sentencing Departures: An Examination of U.S. Federal Courts

Using data from the United States Sentencing Commission, the present study examines the role of guideline departures in the sentencing of male and female defendants in federal courts. Findings indicate that female defendants continue to have lower odds of incarceration and to receive shorter sentence length terms, even after legal, extralegal, and contextual factors are controlled. The largest gender difference in the odds of incarceration was found for defendants who received substantial assistance departures, while male and female defendants in this same category were given the most similar sentence lengths. When departure status was examined as a dependent variable, it was found that female defendants were more likely to receive a sentencing departure. Finally, for both males and female defendants sentenced on multiple counts, those who went to trial and had prior criminal histories were less likely to receive sentencing departures. But defendants with higher guidelines sentences, those who had committed drug offenses, and those with more education were more likely to receive a sentencing departure.     

Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts

The role of the prosecutor in criminal punishments remains a fervent topic of criminal justice discourse, yet it has received limited empirical attention, particularly for U.S. Attorneys in federal district courts. The present study examines charging and sentencing outcomes in federal courts by combining charging data from the Administrative Office of the U.S. Courts with sentencing data from the U.S. Sentencing Commission. The merger of these data sources overcomes limitations of each and provides for an investigation of the causes and consequences of federal prosecutorial charging decisions. Our investigation focuses on the subtle but important influences that extralegal offender characteristics exert in this process. Results indicate that some extralegal characteristics are intricately tied to the likelihood of charge reductions. Moreover, these effects sometimes interact to produce compound disadvantages for some groups of offenders. Our analyses are guided by contemporary theoretical perspectives on courtroom decision‐making.     

PROACTIVE POLICING AND ROBBERY RATES ACROSS U.S. CITIES*

In recent years, criminologists, as well as journalists, have devoted considerable attention to the potential deterrent effect of what is sometimes referred to as “proactive” policing. This policing style entails the vigorous enforcement of laws against relatively minor offenses to prevent more serious crime. The current study examines the effect of proactive policing on robbery rates for a sample of large U.S. cities using an innovative measure developed by Sampson and Cohen (1988). We replicate their cross-sectional analyses using data from 2000 to 2003, which is a period that proactive policing is likely to have become more common than that of the original study—the early 1980s. We also extend their analyses by estimating a more comprehensive regression model that incorporates additional theoretically relevant predictors. Finally, we advance previous research in this area by using panel data, The cross-sectional analyses replicate prior findings of a negative relationship between proactive policing and robbery rates. In addition, our dynamic models suggest that proactive policing is endogenous to changes in robbery rates. When this feedback between robbery and proactive policing is eliminated, we find more evidence to support our finding that proactive policing reduces robbery rates.     

LOCAL POLITICS AND VIOLENT CRIME IN U.S. CITIES*

Recent research has begun to examine the effects of politics on crime. However, few studies have considered how local political variation is likely to affect crime. Using insights from urban politics research, this paper develops and tests hypotheses regarding direct and conditional effects of local politics on violent crime in 958 cities in 1991. Results from negative binomial regression analyses show that violent crime rates vary by local political structures and the race of the mayor. In addition, the effects of structural factors such as poverty, unemployment, and female‐headed households on violent crime depend on local form of government and the number of unreformed local governmental structures. Implications for systemic social disorganization and institutional anomie theories are discussed.     

美国联邦刑法法典化述评

美国联邦尚无刑法典,然自建国后,联邦一直致力于刑法法典化,从1790年《治罪法》至1948年《联邦法典》第18主题,到1982年《联邦刑法典草案》,长达200多年的刑法法典化事业至今未竟。联邦刑法法典化呈现独有品性,即启于内外因素双重驱动、历经形式编纂到实质编纂、本体即权力扩张与限制、价值思维系理想主义与实用主义之统合。联邦刑法法典化目的理性,其搁浅缘于工具不善。基于现有刑法不力、刑法治危机以及刑法典的天然优势之事实,结合刑法有效、公正、人道之目的,得以推导出刑法法典化仍需继续之应然结论。未来,联邦刑法法典化之路仍旧遍地荆棘,而联邦刑法典能否问世,取决于美国所动用的实践理性。     

JUVENILITY AND PUNISHMENT: SENTENCING JUVENILES IN ADULT CRIMINAL COURT*

The study outlined in this article addressed a key limitation of prior research on the punishment of juveniles transferred to adult court by employing propensity score matching techniques to create more comparable samples of juvenile and young adult offenders. Using recent data from the Maryland State Commission on Criminal Sentencing Policy, it tested competing theoretical propositions about the salience of juvenile status in adult court. Findings indicate that even after rigorous statistical matching procedures, juvenile offenders are punished more severely than their young adult counterparts. We found no evidence that this “juvenile penalty” is exacerbated by an offender's race or gender, but it does vary starkly across offense type and mode of transfer, being driven primarily by drug crimes and discretionary waivers. The import of these findings is discussed as they relate to the future of juvenile justice policy regarding the continued use of juvenile transfer to adult court.     

ETHNIC THREAT AND SOCIAL CONTROL: EXAMINING PUBLIC SUPPORT FOR JUDICIAL USE OF ETHNICITY IN PUNISHMENT*

Research on social inequality in punishment has focused for a long time on the complex relationship among race, ethnicity, and criminal sentencing, with a particular interest in the theoretical importance that group threat plays in the exercise of social control in society. Prior research typically relies on aggregate measures of group threat and focuses on racial rather than on ethnic group composition. The current study uses data from a nationally representative sample of U.S. residents to investigate the influence of more proximate and diverse measures of ethnic group threat, examining public support for the judicial use of ethnic considerations in sentencing. Findings indicate that both aggregate and perceptual measures of threat influence popular support for ethnic disparity in punishment and that individual perceptions of criminal and economic threat are particularly important. Moreover, we find that perceived threat is conditioned by aggregate group threat contexts. Findings are discussed in relation to the growing Hispanic population in the rapidly changing demographic structure of U.S. society.     

PUNISHING THE “MODEL MINORITY”: ASIAN‐AMERICAN CRIMINAL SENTENCING OUTCOMES IN FEDERAL DISTRICT COURTS*

Research on racial and ethnic disparities in criminal punishment is expansive but remains focused almost exclusively on the treatment of black and Hispanic offenders. The current study extends contemporary research on the racial patterning of punishments by incorporating Asian‐American offenders. Using data from the United States Sentencing Commission (USSC) for FY1997–FY2000, we examine sentencing disparities in federal district courts for several outcomes. The results of this study indicate that Asian Americans are punished more similarly to white offenders compared with black and Hispanic offenders. These findings raise questions for traditional racial conflict perspectives and lend support to more recent theoretical perspectives grounded in attribution processes of the courtroom workgroup. The article concludes with a discussion of future directions for research on understudied racial and ethnic minority groups.     

RISK,RACE, AND RECIDIVISM: PREDICTIVE BIAS AND DISPARATE IMPACT*

One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections. Although these instruments figure prominently in current reforms, critics argue that benefits in crime control will be offset by an adverse effect on racial minorities. Based on a sample of 34,794 federal offenders, we examine the relationships among race, risk assessment [the Post Conviction Risk Assessment (PCRA)], and future arrest. First, application of well‐established principles of psychological science revealed little evidence of test bias for the PCRA—the instrument strongly predicts arrest for both Black and White offenders, and a given score has essentially the same meaning—that is, the same probability of recidivism—across groups. Second, Black offenders obtain higher average PCRA scores than do White offenders (d = .34; 13.5 percent nonoverlap in groups’ scores), so some applications could create disparate impact. Third, most (66 percent) of the racial difference in PCRA scores is attributable to criminal history—which is already embedded in sentencing guidelines. Finally, criminal history is not a proxy for race, but instead it mediates the relationship between race and future arrest. Data are more helpful than rhetoric if the goal is to improve practice at this opportune moment in history.     

GROWTH AND QUALITY OF U.S. PRIVATE PRISONS: EVIDENCE FROM A NATIONAL SURVEY*

Research Summary: Private prisons incarcerate 5.3% of the sentenced, adult population in the United States. The present study presents selected results from a 1999 survey of administrators who monitored private prisons in the United States (or U.S. territories). Among the findings of interest, the private sector experienced significant problems with staff turnover, escapes, and drug use. Where possible, private prison operations were compared with those of the Federal Bureau of Prisons. Policy Implications: Given the issues raised here with public safety, public sector agencies contracting for private prisons need to develop incentives or other means to ensure that private sector operators retain experienced custody staff.