Questioning Blackmun's Thesis: Does Uniformity in Sentencing Entail Unfairness?

It is commonly believed among criminal justice scholars that sentencing guidelines increase uniformity in sentencing at the cost of fairness. They reason that guideline systems rarely take all relevant case characteristics into consideration, and as a result, impose sentences in particular cases that are biased relative to the ideal or best sentence. This bias effect is one of the primary theoretical and practical challenges faced by courts and sentencing commissions in the last 30 years, and provides one of the strongest arguments against mandatory sentencing guidelines. This article identifies a second effect of guidelines on fairness, which has not been sufficiently acknowledged by the scholarly literature: the variance effect increases the fairness of sentences directly by increasing uniformity. This article uses statistical simulation to examine the relationship between the variance effect and the bias effect. The results provide substantial evidence that the variance effect is comparatively large, and that it may often outweigh the negative effects of bias. Under these conditions, sentencing guidelines will both increase uniformity and increase fairness.     

Reassessing the Influence of Criminal History in Federal Criminal Courts

Abstract

Prior sentencing research indicates that defendants with more extensive criminal histories receive more punitive dispositions and that criminal history influences sentencing decisions over and above its influence on the guideline recommended sentence. To date, these additional effects of criminal history have almost exclusively been treated as linear effects. However, there are plausible reasons to expect that criminal history could have curvilinear effects on sentencing outcomes that taper off at higher scores. The purpose of this paper is to explore the potential curvilinear effects of defendant criminal history on incarceration, sentence length, and downward departure decisions in federal criminal courts. The findings suggest that criminal history has curvilinear effects on each of these sentencing outcomes. As criminal history category increases, defendants receive more severe sentences, net of other factors, but only up to a certain threshold level, at which point criminal history effects taper off and even reverse.     

Punishment justifications in rape cases: a community study

Norway is one of the countries with the most progressive criminal justice systems in the Western world. Traditionally, the Norwegian criminal justice system has been mainly based on treatment and deterrence perspectives. While it is believed that criminal justice practices should be in accordance with public attitudes, few studies in Scandinavia have investigated public attitudes towards criminal justice sanctions in a methodologically sound manner. The current study is the first to investigate the attitudes of the Norwegian public towards punishment of rapists. In a Norwegian community sample (N = 475) from 2005, participants found the typical sentencing severity of a convicted rapist too lenient. The participants did report that as a global sentencing orientation, they preferred incapacitation. When presented with a specific rape case, their sentencing judgements were oriented towards both incapacitation and retribution, but their global orientation were not related to their specific judgements. Aggravating circumstances (e.g. violence was used) were found to influence the participants’ judgements more than when no aggravating circumstances were present (e.g. no violence was used). Few gender or educational differences were found, which indicates that these attitudes towards punishment of rapists are quite consistent across demographical groups.     

Exploring sentencing in three European cities

This research represents the results of a sentencing study conducted in three cities in Europe. The cities were chosen because they represent widely varying judicial philosophies. The question addressed is: do different formal legal attitudes impact sentencing behaviors? Data come from a randomly selected set of cases acquired from one judge in each of the three cities. The results indicate that, as in the United States, extra‐legal variable play a lesser role than legally relevant criteria in determining sentences. Contextual factors are also important as the models for explaining the variations in sentencing decisions change from city to city. This research continues the line of investigation which points to the need for a more thorough sample of sentencing decisions so that generalizations about the relationship between ideology and courtroom behavior can be made across countries.     

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.     

Defining determinacy: Components of the sentencing process ensuring equity and release certainty

Determinate sentencing has gained in popularity in recent years, yet the specific meaning of determinacy is not universally accepted. Determinacy is viewed as a means for providing prisoners with release certainty, a mechanism for increasing fairness in the sentencing process, or both. The purpose of this paper is to define the components of determinacy and to articulate the conditions of the sentencing and post-adjudication process necessary to fulfill these criteria. The discussion of fairness in sentencing is restricted to issues of procedural equity, or the degree to which sentencing decisions are made reliably. Release predictability involves providing inmates early in their prison stays with knowledge concerning their release dates. Sentencing equity and predictability depend on how the sentencing model is structured to deal with a series of discretionary decisions affecting criminal defendants throughout the judicial and correctional process. Six choice points are considered, three pertaining to the adjudication process and three to the post-adjudication period. Relevant to the adjudication process are: (1) the decision to incarcerate; (2) characteristics of the penalty scaling system, including numbers of penalty ranges and offense categories, and overlap among penalty ranges; and (3) other mechanisms, including aggravating and mitigating circumstances and concurrent and consecutive sentences. The following post-adjudication processes were addressed: (4) the parole review process; (5) the use of good time; and (6) revocation from supervised release. Explication of the criteria for procedural equity and predictability should aid in defining parameters necessary for effective reform.     

Characteristics of cybercrimes: evidence from Chinese judgment documents

ABSTRACT

China has witnessed a rapid growth in internet use alongside an unprecedented increase in cybercrimes. Although studies have suggested that there are many factors that may contribute to the growing number of cybercrimes, such as the widespread use of online gaming, the low average income of internet users, and an increased access to IT skills, systematic analyses of actual convictions are rare. As the level of domestic cybercriminal activities increases rapidly, there is a growing call for empirical studies on cybercrime in China.

Through the extraction of data from China Judgements Online, the newly released Chinese judgements service, this study examines the basic characteristics of cybercrimes in China by analysing 448 sentencing documents that cover four types of computer crimes: online frauds, real asset theft, virtual asset theft, and stolen accounts. We analyse cybercrime cases from the perspective of the underground economy, focusing on the roles that cybercriminals play in the value chains of the online underground market; more specifically, what kind of products and services are enabled through cyber theft, and how those products and services are integrated as components of the underground economy.     

Crime,public opinion and trial courts: An analysis of sentencing policy

Much recent research on public opinion and trial courts demonstrates a link between local attitudes and sentencing in highly visible criminal cases. However, such crimes are not typical of most trial court work. Our research examines relationships between public opinion, crime rates, and sentencing in routine cases, including armed and unarmed robbery, burglary, larceny, and possession of narcotics. The research includes over 6000 cases and measures public opinion in all twenty of Florida's trial court circuits. Except for possession of narcotics, no significant correlations were discovered between public opinion and sentencing, but high crime rates generally produced lenient sentences. The research questions the impact of public opinion on most litigation and suggests that judicial elites usually act without concern for local public opinion.     

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.     

REVIEWS

Book reviewed in this article: Dawn Oliver, Government in the United Kingdom: The Search for Accountability, Effectiveness and Citizenship , Milton Keynes Rodney Brazier, Constitutional Reform: Re-shaping the British Political System Christopher J. Bruce and Jo Carby-Hall, Rethinking Labour-Management Relations: The Case for Arbitration     

A Comparison of Retained and Appointed Counsel in Cases of Capital Murder

We examined the role of counsel as a source of arbitrary and capricious sentencing in cases of capital murder. The method is a reanalysis of the data of Baldus, Woodworth, & Pulaski (1990) on 606 cases of capital murder in Georgia in the 1970s. Controlling for variables describing the character of the defendant and the circumstances of the crime, a death sentence was more likely when defense counsel was appointed rather than retained privately. This was a consequence primarily of the prosecutor's decision to seek a death sentence rather than jury bias in sentencing. Our data support the conclusion that sentencing under the Georgia statute was in the 1970s, and is today to some degree, arbitrary and capricious.     

Enhancing Consistency in Sentencing: Exploring the Effects of Guidelines in England and Wales

Objectives

The development and application of methods to assess consistency in sentencing before and after the 2011 England and Wales assault guideline came into force.

Methods

We use the Crown Court Sentencing Survey to compare the goodness of fit of two regression analyses of sentence length on a set of legal factors before and after the assault guideline came into force. We then monitor the dispersion of residuals from these regressions models across time. Finally, we compare the variance in sentence length of equivalent types of offences using exact matching.

Results

We find that legal factors can explain a greater portion of variability in sentencing after the guideline was implemented. Furthermore, we detect that the unexplained variability in sentencing decreases steadily during 2011, while results from exact matching point to a statistically significant average reduction in the variance of sentence length amongst same types of offences.

Conclusions

We demonstrate the relevance of two new methods that can be used to produce more robust assessments regarding the evolution of consistency in sentencing, even in situations when only observational non-hierarchical data is available. The application of these methods showed an improvement in consistency during 2011 in England and Wales, although this positive effect cannot be conclusively ascribed to the implementation of the new assault guideline.     

The Role of Mitigating Factors in Capital Sentencing Before and After McKoy v. North Carolina

In 1990, the United States Supreme Court ruled that capital jurors do not have to be unanimous in deciding whether or not to accept any particular mitigating circumstance presented to them by the defense during the penalty phase of a capital murder trial. This study examines whether this shift in procedure may have altered the role of mitigation in predicting capital sentencing outcomes by comparing death sentencing predictors before and after the McKoy decision with data from an extensive sample of capital cases in North Carolina tried between 1977 and 2002. The results indicate that (1) both the number of aggravating and mitigating circumstances accepted by capital jurors had statistically significant and substantial effects on capital sentencing outcomes both before and after the McKoy decision; (2) the number of mitigating circumstances presented to and accepted by capital juries in North Carolina doubled during the post‐McKoy period; and (3) the influence of mitigating circumstance on capital sentencing outcomes was attenuated in the post‐McKoy period. Implications of these findings are discussed.     

Prosecutorial discretion in seeking death: An analysis of racial disparity in the pretrial stages of case processing in a midwestern county

In the 1987 case of McCleskey v. Kemp, the U.S. Supreme Court appeared to foreclose the possibility of challenging racial bias in capital sentencing by using statistically based claims of discrimination. McCleskey, however, does not prevent a challenge to decisions made by particular individuals during the capital punishment process. In this study we examined pretrial decisions made by, or under the direction of, one prosecutor to determine whether those decisions had been influenced by race. We found that homicide cases involving black defendants and white victims fared worse than other racial combinations in all of the pretrial decisions made: They were more likely to result in first-degree murder charges, to be served notice of aggravating circumstances, and to proceed to capital trial.     

Tinkering with the Machinery of Death: An Analysis of Juror Decision-Making in Texas Death Penalty Trials During Two Statutory Eras

The Texas death penalty statute originally approved by the United States Supreme Court in Jurek v. Texas (1976) was legislatively amended as a result of the Court’s decision in Penry v. Lynaugh (1989). The changes were intended to focus on increasing jurors’ ability to give mitigating effect to evidence in sentencing. Using data from the Capital Jury Project, we compared juror comprehension of sentencing guidelines, punishment responsibility, and deliberations in sentencing among a sample of 123 Texas jurors who deliberated under the Jurek and Penry statutes. In each area, we found that the amended statute failed to guide capital juror decision-making as intended.     

Policies and Imprisonment: The Impact of Structured Sentencing and Determinate Sentencing on State Incarceration Rates, 1978–2004

Research has begun to systematically assess the relationship between sentencing policies and state incarceration rates. Prior studies, however, have examined policy‐based relationships in isolation, failing to consider the impact of combinations of policies. Using a pooled time series design, this article examines interactions between structured sentencing, determinate sentencing, and state incarceration rates between 1978 and 2004. Results show that constraining release discretion through determinate sentencing matters more than constraining sentencing discretion through structured sentencing. Consistent with prior research, determinate sentencing was associated with lower incarceration rates independent of other policies. Contrary to prior research, however, the presence of presumptive sentencing guidelines was associated with lower incarceration rates only when combined with determinate sentencing. These findings suggest that while a state may effectively insulate sentencing decisions from outside social forces, if it fails to insulate release decisions from those same forces, they will continue to affect imprisonment levels.     

Transience and the disposition of theft cases in China

This research examines the relationship between transience and the disposition of criminal cases in an inquisitorial system. We describe the distinctive features of socialist legal theories, the justice process, and recent structural changes in China. The results of multivariate tobit analyses for a sample of court cases involving theft in China reveal that defendants' residency status has significant effects on pretrial detention, but not on sentencing outcomes. Further analyses of the possible conditional effect of offenders' residency status on case processing reveal that extralegal factors are weighed more heavily in detention decisions for transients, while legal factors are considered more strongly for residents. Pretrial detention influences sentencing outcomes, but only for transients. Policy implications and recommendations are discussed.     

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.     

The Effects of Mental Health and Substance Abuse Disorders on Institutional Misconduct Among Female Inmates

The US Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the US Supreme Court ruled in United States v. Booker and Fanfan, that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The impact of the Booker/Fanfan decisions on interjurisdictional variation and sentencing disparity is an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these expectations using USSC data on federal sentencing outcomes from four time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, post-Booker/Fanfan, and post-Gall v US. In general, we find that extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker and Gall. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.