There are no guidelines forms to be Completed. Judges are guided by rebuttable presumptions. Defense or prosecution may appeal sentences against the
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The author(s) shown below used Federal funds provided by the U.S. Department of Justice and prepared the following final report: Document Title: Judges and Discrimination: Assessing the Theory and Practice of Criminal Sentencing Author(s):Charles W. Ostrom ; Brian J. Ostrom ; Matthew Kleiman Document No.: 204024 Date Received:February 2004 Award Number:98-CE-VX-0008 This report has not been published by the U.S. Department of Justice. To provide better customer service, NCJRS has made this Federally- funded grant final report available electronically in addition to traditional paper copies. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
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Judges and Discrimination Assessing the Theory and Practice of Criminal Sentencing Apprwed By: m Authored by: Charles W. Ostrom Brian J. Ostrom Matthew Kleiman Michigan State University National Center for State Courts National Center for State Courts With the cooperation of the Michigan Sentencing Commission and the Michigan Department of Corrections This report was developed under a grant from the National Institute of Justice (Grant 98-CE-VX-0008). The opinions andpoints of view in this report are those of the authors and do not necessarily represent the official position or policies of the National Institute or the Michigan Sentencing Commission. 1
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The sentencing decision is the symbolic keystone of the c~minal justice system: in it, the conflicts between the goals of equal justice under the law and indvidualzed justice with punishment tailored to the offender are played out, and sociely5s moral principles and highest vaiues-life and libedy-are interpreted and appled. Research on Sentencing: ne Search for Reform (1983) The sentencing decision receives considerable attention from both researchers-who look at the determinants of the sentence choice-and policy makers-who look at the necessity and possibility of reform. Yet, despite decades of study, there are large gaps in our understanding of how “punishments are tailored” across the full range of sentencing options. Any effort to explain sentencing outcomes means coming to terms with judicial discretion and how it is put into practice. Judges are the voice of sentencing, but their freedom of choice is limited by the statutes and sentencing structures existing in a particular state. Since the late 1970s, judicial discretion has been constrained by the creation of sentencing guidelines and other means for structuring the sentencing decision. Some argue these structures unduly restrict a judge’s ability to appropriately weigh the factors that play a role in sentencing, while others feel that additional measures, such as mandatory minimum sentencing laws, are needed to constrain judicial discretion further. But regardless of ones personal views on circumscribing judicial discretion, a comprehensive assessment of sentencing outcomes in 2
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present day America must integrate understanding of the sentencing proclivities of individual judges with the way discretion is shaped and controlled. Our interest in sentencing outcomes is focused on disparity, According to the U.S. Congress, sentencing disparity exists “when defendants with similar criminal records found guilty of similar criminal conduct receive dissimilar sentences.”‘ In practice, disparity refers to differences in sentencing outcomes that are associated with “extralegal” factors such as race, ethnicity, economic standing, gender, or the exercise of certain procedural rights (e.g., trial). Disparity exists whenever extralegal factors influence the sentence once the legitimate factors related to the offense/offender are taken into account. Not all sentencing variation is unwarranted; sentences properly reflect differences in the seriousness of the offense and/or the criminal history of the offender. Assessing disparity requires distinguishing between differences in sentences that meet the state’s legitimate purposes in sentencing and those differences whose consideration is prohibited by the offender’s constitutional rights. Existing data sources make clear why the issue of disparity in sentencing remains center stage. Between 1980 and 2000 the prison population in the United States grew by one million individuals. As can be seen in Figure 1-1, the rate per 100,000 population in 1980 was 139, growing to 460 per 100,000 by 2000 – an increase of 300%. Dramatic increases have been experienced in all states. 28 U.S.C. 5 991(b)(l)(B). 3
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figure 1-1 : Incarceration rates for prisoners under State or Federal jurisdiction, per 100,000 residents e 500 0 3 450 (P g 400 2 350 8 250 200 150 !!l Q) 100 5 50 to – 8 300 a .- J ,,,,,,,,,,,,,,,,,,I 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 Year Figure 1-2 shows that the increases in prison population have not occurred across the board. Although violent offenders comprise the largest share of prison population, the greatest increase has been for drug offenders. In 1980, 58% of those coming to prison were convicted of violent offenses and 6% for drug offenses. By 2000,48% were coming for violent offenses while 21% were coming for drug offenses. Proportionally, there are lO0/o fewer violent offenders and 15O/0 more drug offenders than in 1980. 4
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Figure 1-2 Number of Prison Sentences by Offense Type, 1980-1999 600,OOo 500,000 400,OOo 300,OOO 200,000 100,OOo a I 1980 1983 1986 1989 1992 1995 1998 The racial mix of prison population has remained remarkably stable over the past two decades. While blacks make up 12S0/o of the US. population, they account for about one half of the prison population: African Americans are still over-represented in state prison population versus the total population in all states.* The average incarceration rate for Blacks is 1,547 per 100,000 population while the average for Whites is 188 per 100,000 -the incarceration rate for Blacks is approximately 8 times higher than for Whites. On the surface, these numbers raise the specter of discrimination. Our empirical approach to assessing disparity is illustrated through a comprehensive analysis of sentencing outcomes in Michigan. Sentencing in Michigan is structured through a set of sentencing guidelines that are described in detail in Chapter 5. While we believe our methods have utility for measuring disparity in all sentencing systems, the choice to develop and refine them within * In a recent Bureau of Justice Statistics (BJS) special report (Bonczar et al. 1997) using 1991 as a base year, it was noted that Blacks have a 28.5% chance of going to prison in their lifetime, Hispanics have a 16% chance, and whites have a 4.4% chance. 5
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range) for a defendant based on offense seriousness and prior criminal involvement. The attention given to judicial sentencing should be understood as a part of a sea change that occurred in sentencing philosophies. The 1970s brought the transition from a venerable system of “indeterminate sentencing” to a new one organized around the principle of “just desserts.” Indeterminate sentencing combined two main features. First, judicial discretion in sentencing was wide and largely unchecked, save for legislatively specified maximums and (less commonly) minimums. Second, judicial decisions regarding sentence length was paired with a system of state parole boards, appointed by the governor, whose release decisions determined the actual length of time offenders spent in custody. The formal principle underlying indeterminate sentencing was substantive rationality: achieving the sentence that is just for each individual defendant (Ulmer and Kramer 1996). This principle encouraged the use of extralegal factors to establish, for example, the rehabilitative potential of the offender. The heyday of indeterminate sentencing coincided with a period of optimism about the potential for rehabilitation–the 1960s–in which treatment displaced punishment as the official role for penal institutions. Structured sentencing, including guideline systems, arose in response to what were perceived as undesirable features of indeterminate sentencing. Some critics claimed that disparity was promoted when judges were given no guidance 7
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in how to incorporate all sentencing-relevant factors in a consistent fashion (Freed 1992, 1687). In this regard, it was possible for offenders with identical offenses and prior criminal records to receive vastly different sentences. Also, critics noted that indeterminate sentencing did not encourage appellate review of sentencing decisions (Freed 1992, 1688). Moreover, the broad discretionary powers of parole boards ensured that judges could never be certain of the actual time that a convicted offender would serve following imposition of sentence. With structured sentencing, formal rationality (predictable and uniform application of rules) replaces substantive rationality as the principle underlying sentencing. This principle has been most influentially expressed in the just deserts approach to sentencing (see: Ulmer and Kramer 1996). A just deserts philosophy was used to establish the first state sentencing guideline system, enacted by Minnesota in 1980. Since the mid-l970s, judicial discretion has been out of fashion and parole boards have been eliminated or have had their discretionary release authority substantially curtailed. Implementing sentencing guidelines is not the only mechanism for structuring discretion. Legislatures enact mandatory minimum sentences in pursuit of uniform and severe punishment of selected types of offenders (e.g., those committing their crimes with firearms in proximity to a public school). Habitual offender and “three-stri kes” provisions also direct judicial sentencing to accomplish specific objectives of the legislative branch. 8
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States have pursued various paths to sentencing reform. Many states have adopted a prescriptive approach to guidelines development, whereby a sentencing rationale has been articulated at the onset and guidelines have been formulated consistent with that rationale. Other states have created guidelines in a more descriptive fashion, such that sentence recommendations more closely reflect past sentencing behavior of judges in felony cases. However, no state has gone the route of the U.S. Sentencing Commission, which developed a highly detailed and mechanical set of guidelines without a clear rationale. Observers disagree on the overall impact of sentencing guidelines on judicial discretion. Some feel that the criminal justice system contains a fixed amount of discretion. Efforts to restrict discretion at any one stage or by any one category of actor in the system fail because of the “hydraulic displacement of discretion” (McCoy 1984). That is, a change or reform that limits discretion in one area leads to an increase of discretion in another area. One view is that sentencing reform in recent decades has diminished the discretion of judges and parole offices, but has enhanced discretion of the prosecutor (Boerner 1995). As the gatekeepers to the system, prosecutors decide which defendants are prosecuted and with what charges. More recently, observers have stressed the discretion that judges retain in the sentencing process. Despite the embrace of just deserts in Minnesota’s sentencing guidelines, “attorneys and trial judges remain firmly attached to offender-based crime control sentencing goals” and the use of judicial discretion 9
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has steadily increased. Some of the prime movers in the sentencing guidelines movement now claim that enhancing judicial discretion (by reducing “back end” discretion on the part of parole boards) was one of their original objectives and note the accountability that judges uniquely possess for their sentencing decisions (Knapp 1993; Alschuler 1993). Sentencing Guidelines Basics Guideline sentences are typically based on factors such as offense severity, the offender’s prior record, the availability of punishment alternatives, and concerns for community safety. Distinctions exist, though, in how stringent different guidelines systems are in “limiting” judicial discretion. The limits are found in the sentencing procedures that direct judges to reference, consider, and adhere to a specific recommendation on a sentencing grid or worksheet. In conjunction with state statutes and authority, these procedures or “mechanics” define the extent to which a system is voluntary or mandatory in nature. Sentencing guidelines systems developed during the early 1980s were quickly categorized by scholars and practitioners as either presumptive or advisory (mandatory or voluntary) and as either prescriptive or descriptive (Tonry 1987; Frase 1995; Morris and Tonry 1990). As new systems have developed, these distinctions have become blurred, with states using combinations or hybrids of the earlier systems. For this reason, it is difficult to classify the various sentencing guidelines systems into a rigid voluntary/mandatory dichotomy. In general terms, most sentencing guidelines 10
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