Determinate Sentencing Research Articles

The Search for Equality in Criminal Sentencing

For the last two terms, the United States Supreme Court has been rocked by the aftershocks of two independent yet equally significant criminal sentencing revolutions. The first, brought on by the Court in the 1970's, was the constitutionalization of capital sentencing procedures pursuant to the Eighth Amendment. This death-penalty jurisprudence had the laudable goal of attempting to reduce discrimination in the selection of those defendants to receive the ultimate penalty. A concurrent revolution with a similar goal occurred in the non-capital area. In 1984, Congress passed the Federal Sentencing Act to reduce discrimination and other disparities in criminal sentencing for non-capital cases. These efforts to enhance equality in capital and non-capital criminal sentencing have not been discussed together in the academic literature. We trace this parallel development in the capital and non-capital arenas and evaluate their success in ensuring equality. We conclude that for non-capital sentencing this revolution has enjoyed considerable success in ensuring similar treatment for similarly situated defendants. Moreover, a determinate sentencing system fosters democracy and transparency in sentencing decisions. The capital sentencing revolution, on the other hand, has been a dismal failure. State schemes have not significantly reduced sentencer discretion at the penalty phase of capital trials, and the results of such schemes have not been demonstrably more consistent than those obtained in the era preceding federal judicial regulation. The most recent threat to equality in sentencing in the non-capital context was the Court's decision in Apprendi v. New Jersey, that any fact, other than a prior conviction, increasing the prescribed maximum penalty for an offense must be found by a jury beyond a reasonable doubt. The broadest application of this rule would have foreclosed the Federal Sentencing Guidelines and their state guideline counterparts, because it is too cumbersome to have juries make all factfindings necessary to apply the guidelines, and because juries cannot be relied upon to implement such guidelines in a consistent fashion. The Court's rejection of this broad Apprendi theory last term in United States v. Harris insures the continued viability of determinate sentencing in the non-capital context. On the capital side, a guideline-like approach is unlikely to secure meaningful equality across cases. Thus, the Court's extension of the Apprendi rule, in Ring v. Arizona, to aggravating circumstances in capital cases will not undermine reform. Additionally, there are independent reasons in the capital arena to prefer jury to judge sentencing, such as sustaining the connection between the community and those imposing the death penalty. We conclude with comments regarding the tension between equality norms and jury sentencing. The Court's decisions in Apprendi, Harris, and Ring reflect an appropriate accommodation of these competing norms.

Fear of Forgiving: Rule and Discretion in the Theory and Practice of Pardoning

This paper, by the former Justice Department Pardon Attorney, discusses the role that executive clemency plays in the modern day criminal justice system. It concludes that our commitment to determinate sentencing ought by all rights to make it easy to carve out a respectable role for pardon, which was intended by the Framers to provide necessary flexibility where the legal system is unable to take appropriate account of individual circumstances. The paper explores the tension between rule-based justice and discretionary mercy, suggesting ways of accommodating these two great principles of decision in a determinate sentencing system. It traces the evolution of the pardon function in the federal justice system, and explains the atrophy of pardon in recent years. It attributes the break-down of the pardon process at the end of the Clinton Administration as much to its capture by prosecutors and bureaucrats within the Justice Department, as to any lack of discipline and judgment shown by the departing President Clinton. It analyzes the other symposium essays in terms of the relative importance they ascribe to regularity and discretion in the theory and practice of pardoning. Finally, it proposes that reliance on a rule-based administrative system maximizes the President's ability to use his constitutional power as the Framers intended. The good news about the final Clinton pardons is that they have drawn attention to problems in the justice system that have been simmering for years. The evident need to rethink how pardon should be used and administered provides an early opportunity to consider these problems. Recognizing the limits of pardon should encourage law reform efforts, and recognizing the limits of the law should identify a place for pardon.

Fear of Forgiving: Rule and Discretion in the Practice of Pardoning

This paper, by the former Justice Department Pardon Attorney, discusses the role that executive clemency plays in the modern criminal justice system. It explores the tension between rule-based justice and discretionary mercy, suggesting ways of accommodating these two great principles of decision in a determinate sentencing system. It traces the evolution of the pardon function in the federal justice system, and explains the atrophy of pardon in recent years. It attributes the break-down of the pardon process at the end of the Clinton Administration as much to its capture by prosecutors and bureaucrats within the Justice Department, as to the lack of discipline and judgment shown by the departing President Clinton. This paper analyzes the other symposium essays in terms of the relative importance they ascribe to regularity and discretion in the theory and practice of pardoning. Finally, it proposes that reliance on a rule-based administrative system maximizes the President's ability to use his constitutional power as the Framers intended. The good news about the final Clinton pardons is that they have drawn attention to problems in the justice system that have been simmering for years. The evident need to rethink how pardons should be used and administered provides an early opportunity to consider these problems. Recognizing the limits of pardons should encourage law reform efforts, and recognizing the limits of the law should identify a place for pardons.

Fear of Forgiving: Rule and Discretion in the Theory and Practice of Pardoning

This paper, by the former Justice Department Pardon Attorney, discusses the role that executive clemency plays in the modern day criminal justice system. It concludes that our commitment to determinate sentencing ought by all rights to make it easy to carve out a respectable role for pardon, which was intended by the Framers to provide necessary flexibility where the legal system is unable to take appropriate account of individual circumstances. The paper explores the tension between rule-based justice and discretionary mercy, suggesting ways of accommodating these two great principles of decision in a determinate sentencing system. It traces the evolution of the pardon function in the federal justice system, and explains the atrophy of pardon in recent years. It attributes the break-down of the pardon process at the end of the Clinton Administration as much to its capture by prosecutors and bureaucrats within the Justice Department, as to any lack of discipline and judgment shown by the departing President Clinton. It analyzes the other symposium essays in terms of the relative importance they ascribe to regularity and discretion in the theory and practice of pardoning. Finally, it proposes that reliance on a rule-based administrative system maximizes the President's ability to use his constitutional power as the Framers intended. The good news about the final Clinton pardons is that they have drawn attention to problems in the justice system that have been simmering for years. The evident need to rethink how pardon should be used and administered provides an early opportunity to consider these problems. Recognizing the limits of pardon should encourage law reform efforts, and recognizing the limits of the law should identify a place for pardon.

Presidential address: Juvenile justice at the crossroads: Presidential address to the academy of criminal justice sciences*

Three interacting factors appear to significantly affect our treatment of youths and thus our juvenile justice policy: ideology, the media, and politics. As a result of these factors, although juvenile violent crime is decreasing, legislatures still advocate a harsh, punitive stance toward youthful offenders. Legislative initiatives have resulted in determinate sentencing for juveniles, more youths handled by the adult criminal court, and more youths sentenced to adult institutions. Recent evidence suggests that the public supports more prevention and early intervention strategies for youths and favors rehabilitation rather than punishment. These conflicting trends suggest that we are at a crossroads: the juvenile justice system can continue its harsh, reactive stance, or it can choose a more proactive approach. The members of the Academy of Criminal Justice Sciences have an opportunity to play an active role in the development of criminal justice policy.

Keeping the streets safe: Truth in sentencing and public opinion in Idaho

Criminal penalties in the United States are more severe in the 1990s than they have been at any other period in this century. Throughout our history there has been a swing between retribution and rehabilitation. In the late 18th century prisons began to replace corporal punishment. Initially, offenders were sentenced to prison for a fixed time, without any possibility of early release. In the early 19th century New York passed laws allowing time off for good behavior. The indeterminate sentencing model was adopted in the late 19th century. By the 1980s the notion that prisons could rehabilitate offenders was discredited and determinate sentencing, or “truth in sentencing”, was adopted by more and more states in an effort to increase public safety and to reduce discrepancy in sentencing (Edwards, 1995). The demand for this came from those in corrections, in the legal and justice fields and from political leaders.

Criminal Sentencing in Florida: Determinate Sentencing's Hollow Shell

This study examines the destabilization of determinate sentencing in Florida. In retaining the form but rejecting the substance of the determinate sentencing model, Florida's punishment policy is today an unwieldy mix of the worst features of the indeterminate and the determinate ideologies. The discussion places recent policy changes, including the authorization of extraordinarily wide sentencing ranges and the abolition of appellate review, in the context of Florida's two-decade odyssey with determinate sentencing. The article is based on interviews with policymakers and practitioners, along with a variety of official and unofficial documents. The potential ramifications of other states following Florida's lead are enormous and deserve scrutiny.

Evaluation Issues Confronting Juvenile Justice Sentencing Reforms: A Case Study of Texas

Many states currently are implementing “get tough” sentencing reforms in juvenile justice. Surprisingly, however, little attention has been given to evaluation issues identified by the adult justice sentencing literature as critical to assessments of efficacy. Analysis of one recent juvenile justice sentencing reform in Texas—determinate sentencing—provides an opportunity to highlight such issues and to demonstrate their relevance to assessment of other states' juvenile justice sentencing reforms. This article identifies the failure to attend adequately to design, implementation, use, and assessment issues, including identification of potential unintended effects, as barriers to effective evaluation of these reforms.

The collision of confinement and care: end-of-life care in prisons and jails.

In 1997, the United States incarcerated over 1.7 million persons in local jails and in state and federal prisons. These inmates are disproportionately poor and persons of color. Many lack adequate access to health care before incarceration and present to correctional services with major unaddressed medical problems.Convictions for drug possession and use have increased the number of injection drug users with HIV and AIDS in prisons. Determinate sentencing and “three strikes and you’re out” laws have increased the number of inmates who are aging and dying during their sentences. Their feelings reflect those of Larry Rideau, sentenced to life without parole and founder of The Angolite—an award-winning prison newspaper at Louisiana's Angola Prison—“The dream of getting out, you equate with heaven. Dying in prison you equate with hell.”

Justifications, excuses, and a model penal code for democratic societies

I Introduction In this essay I consider the possibility of developing a draft penal code that could assist legislative drafters and scholars in a range of democratic societies.(1) I concentrate on how the subject of justifications and excuses relates to that overall project, raising some problems that constitute obstacles to the smooth development of a multinational draft code. By highlighting the obstacles, I do not wish to suggest that they are insurmountable, and I offer some suggestions for how they may be overcome or minimized. Although I focus on justifications and excuses and the relationship between the two kinds of defenses,(2) much of what I say has wider relevance, reaching aspects of the criminal law more broadly. I am neither a comparativist nor an international lawyer; but my sense is that the problems I raise do not have simple, persuasive answers within traditions outside the common law systems with which I am familiar. My discussion proceeds at three levels. The first level concerns the desirable resolutions of particular problems: how best should specific issues about justification and excuse be handled? The second level is what I might call the limits of conceptualization: can appropriate resolutions be drawn out of the basic concepts of justification and excuse, or do they depend on more nuanced judgments about fairness and wise policy? The third level relates most directly to the project of a draft code for many countries; how should those involved in such an effort approach the problems I raise? Participants at the conference at which I presented this essay argued the merits of minimalist and maximalist approaches to drafting a criminal code; the subject of justification and excuse raises one kind of test case about the sensible ambitions of such efforts. II How the Substantive Criminal Law Fits With Other Aspects of Law And Morality Substantive criminal law does not stand by itself, but exists within a context of legal institutions and general culture. Differences in context may affect how criminal code provisions are best formulated. Here I mention a few important matters of context; some receive more extended attention in what follows. A Institutions of Adjudication How is criminal guilt determined? By professional judges, lay jurors, or some mix of the two? Does a finding that a defendant is not guilty require an indication of why that finding has been made? If professionals determine guilt and innocence, one would expect them to be able to say why. (If they disagree among themselves, they could indicate that.) If lay jurors render a general verdict, we may expect less precision in their grounds. If the jury comprises twelve or six jurors, the chances of disagreement about grounds are greater; and many jurors will not be well able to explain why they have decided as they have. Further, pinning jurors down by specific inquiries about their grounds would compromise to some degree an aspect of the common law tradition--that jurors should be able to acquit contrary to instructions. How one drafts a criminal code may be affected by the decisions one expects of bodies that decide guilt or innocence. B Sentencing Provisions To a considerable extent, the provisions of a criminal code should be drafted in light of sentencing options. If judges have little flexibility in determining sentences, one may need degrees of basic crimes such as homicide, assault, and theft that one would not need if judges have a wide range of discretion. When judges have a wide latitude of sentencing choice, they can consider various factors that bear on severity; when judges impose determinate sentences, the substantive criminal law must reflect differences in severity.(3) The concern about sentencing has little relevance for general provisions on culpability, justification, and excuse, except when a finding of not guilty leads to a disposition other than outright acquittal and freedom. …

A therapeutic programme for imprisoned sex offenders: Progress to date and issues for the future

The number of offenders serving prison sentences for sexual offences has increased dramatically over the last fifteen years. Given that the vast majority of these offenders are serving determinate sentences it is important that effective interventions, aimed at reducing the risk such offenders present to the community on their release from prison, are vigorously implemented. In 1993 the Department of Justice produced proposals for a structured, offence-focused treatment programme for sex offenders. This programme was set up in 1994 in Arbour Hill and so far thirty offenders have been recruited into it. The programme is described, progress to date is evaluated and suggestions are made as to how this work might usefully be developed in the future.

The impact of prison crowding on male and female imprisonment rates in Minnesota: A research note*

The relationship between gender and criminal sentencing is examined by using longitudinal data from the State of Minnesota. Employing regression time-series analysis, we test whether gender-specific levels of prison crowding interact with mitigated departures from Minnesota's sentencing guidelines in mediating the relationship between gender and rate of imprisonment. Results suggest that legally mandated sentencing factors are important in determining severity of sanction for both males and females, but that male offenders are more likely than females to receive mitigated departures when crowding levels are high in male prisons. This relationship exists even though the women's prison in Minnesota is actually more overcrowded than the male prisons. Such findings, which contradict previous research on determinate sentencing, highlight the complexity and difficulty of isolating the effect of gender on criminal sentencing.

Sex Offender Sentencing in Washington State

prison; the remainder received either a jail sentence or probation. For those who were imprisoned, the average length of stay was just over five years.1 For sex offenders determined by the court to be psychopaths, civil commitment was available. Approximately 200 sex offenders received inpatient treatment at a state mental hospital, which lasted about two years. The hospital staff made continual decisions regarding the offender's progress in treatment. Only about 20 percent of those offenders sent to the hospital were successfully discharged; the remainder were returned to court and sentenced to prison terms.2 In 1981, the Legislature embarked on sentencing reform and appointed a Sentencing Guidelines Commission to recommend the first sentencing guidelines.3 The Commission completed its initial work in 1983. However, at that time the group requested another year to determine if and how to incorporate treatment options for sex offenders. The Commission's report noted that both advocates of sexual assault victims and specialists in the treatment of sex offenders were concerned about the ramifica tions of presumptive sentencing on treatment opportunities for sex offenders.4 Under the indeter minate sentencing scheme, the offender was offered treatment as part of a probation sentence. If the offender did not succeed or failed to cooperate, the court could impose a jail or prison term later. Since determinate sentencing is an up-front system, however, accommodating treatment meant carving out special rules for sex offenses. During 1982, Commission members met with prosecutors, defense attorneys, victim and sex offender treatment professionals and received letters from many citizen groups and individuals. In addition, they reviewed scientific research and contacted national experts in the field of sex offender treatment. In the Commission's deliberations, the victim's response to sex crimes was an important consideration. The Commission learned that many victims and their families want the offender to receive treatment rather than be incarcerated, particularly in cases involving child sexual abuse by relatives. Without the cooperation of victims and their families, the criminal justice system could not effectively respond to sexual abuse. With incarcera tion as the sole options, victims and other family members aware of sexual abuse might not be willing to report the offender. The Commission also considered the offender's incentives to cooperate with treatment. Offenders are usually aware that undergoing treatment, especially if the professional is well-qualified and effective, will not be easy: the inquiry will be very intrusive. By contrast, doing time in jail or prison may be boring, frightening, or oppressive, but the level of intrusive ness will not be nearly so high. Therefore, the Commission saw the need to structure a system with incentives for the offender, since public safety is enhanced when treatment reduces re-offending. Ultimately, the Commission chose to craft a special treatment option for certain sex offenders that allowed them to receive treatment in lieu of incar

The transfer of severely mentally ill prisoners from HMP Wakefield: A descriptive study

The use of s.47 of the Mental Health Act 1993 to transfer prisoners with mental illness to hospital was investigated in a large dispersal prison. Those satisfying ICD-10 criteria (World Health Organisation, 1992) for schizophrenia, delusional disorder and major affective disorder, and with a clear history of treatment need, were identified by case-note review. Of a total of 21 prisoners identified, 17 had been subject to transfer requests during the current sentence. A comparison of outcomes indicated that those with greater chronicity of illness, multiple handicaps and need for long-term care were more likely to be rejected for transfer. Prisoners serving determinate sentences constituted a greater proportion of those gaining admissions. The transfer process was characterized by lengthy delays at each stage. Assessments using standardized rating instruments indicated that those currently referred for transfer had more psychotic symptoms but global functioning of the whole group was seriously impaired. The results highlight the continuing shortfall of secure hospital provision, particularly for those needing long-term care. Various recommendations are made to improve the existing arrangements.

Determinate sentencing: A feminist and postmodern story

In this article I employ the concept of storytelling, as developed in feminist and postmodern theory, to explore the assumptions underlying the story about determinate sentencing that has dominated sentencing research and policy since the 1970s. Four analytic tools embedaed in storytelling—a critique of objectivity, a focus on process, an understanding of identity, and a new conceptualization of power—are used to investigate core assumptions that guide determinate sentencing policy. Finally, I offer a new story about sentencing and argue that the incarceration crisis fostered by current sentencing policy is in part a crisis of imagination.

Society's retributive response to juvenile violence: A developmental perspective.

Examines theoretical and empirical challenges to a national trend toward increasingly punitive determinate sentences in juvenile court, and “automatic transfer” of juveniles to criminal court, for homicides and other serious violent offenses. Theory and research in developmental psychology, criminology, and child clinical psychology and psychiatry are examined, with special attention to (a) decision-making by adolescents; (b) characteristics of adolescents who commit homicide; and (c) adolescents' recidivism and potential for rehabilitation. Theoretical support is found for promoting legal responses to adolescent violent offenders that are different from those for adult violent offenders, arguing against determinate sentences based on the offense alone. Empirical support, however, is limited by the lack of relevant systematic research, for which specific recommendations are offered.

DETERMINATE SENTENCING AND ABOLISHING PAROLE: THE LONG‐TERM IMPACTS ON PRISONS AND CRIME*

We estimate the impact of determinate sentencing laws (DSLs) on prison commitments, prison populations, and Uniform Crime Report crime rates. Ten states enacted these laws between 1976 and 1984; all abolished parole and most established presumptive sentences. The research uses a multiple time‐series design that, among other benefits, controls for national trends and facilitates the use of control variables. We found that DSLs are clearly associated with prison population growth in only one state, Indiana, and with major reductions in two, Minnesota and Washington. The remaining laws show no evidence of increasing populations and may have reduced them somewhat. The estimated impacts on commitments are similarly varied. There is little or no evidence that DSLs affect crime. Earlier studies evaluating individual DSLs are often criticized for poor research designs, and our findings support the criticisms.

Determinate Sentencing and Administrative Discretion Over Time Served in Prison: A Case Study of Florida

The national movement for determinate sentencing, which began in the late 1960s, is rooted in two related principles: that the sentence imposed in court should bear a reasonable resemblance to the sentence served and that postconviction administrators should have little or no discretion over the duration of incarceration. This case study examines the forces that drove policymakers in Florida, where determinate sentencing was enacted in 1983, to violate both principles. In 1993, the state's determinate sentencing structure was revamped to rectify these fundamental deficiencies, but recent amendments suggest that the demise of administrative early release may be short-lived.

Violent Youth in Juvenile and Adult Court: An Assessment of Sentencing Strategies in Texas

This paper examines the effectiveness of two sentencing strategies for managing serious and violent juvenile offenders: judicial waiver to adult court and determinate sentencing in juvenile court. Corrections data were analyzed and it was found that both groups consistently receive longer terms of incarceration than are available through normal juvenile justice processing. However, this finding changed when actual time served was taken into consideration. A discriminant analysis showed that juveniles determin‐ately sentenced in juvenile court are more likely to be younger and receive and serve shorter sentences than juveniles waived to adult court and sentenced to prison.

Get the Facts on Plea Bargaining

Imagine teaching a graduate seminar on sentenc ing. How will you explain the varied characteristics and historic development of determinate structures nationwide? One possibility is to ask your students to think of determinate as having expanded from one to three dimensions. The earliest determinate schemes simply assigned a particular point of punishment for any given conviction. The two-dimensional advance was the guideline system, in which two axes representing crime severity and prior record formed the now-famous grid. The third step was the three-dimensional system, in which particular facts of the case ? the social space surrounding a criminal act ? are injected into the appropriate block of the grid and structure the determinate sentence. The federal guidelines are the only example of this comprehen sive approach, and they represent the most well developed and innovative thinking about determi nate sentencing. This structure also provides an historic opportu nity to regulate the processes that produce sentences: plea negotiation and plea agreements. Only in the federal system do particular facts of a case math ematically influence the guideline sentence. They are part of the record, and their impact is clear for all to see. And truth in sentencing under the Sentencing Reform Act of 1984 applies as much to pretrial process as to parole dates. ? plea agreement is the outcome of the only adversarial factfinding many cases get. Considering the impact of facts on the guideline sentence, it is not an overstatement to say, in those cases, that plea bargaining is sentencing. Yet it is troubling that the court and the public usually do not know the circumstances that produced the plea agreement. If judges are to avoid abdicating their roles, they must inquire carefully into the facts underlying guilty pleas. Under Rule 11, and with the help of diligent probation officers, that is exactly what judges usually do. But guilty pleas often obscure the facts, and it is also possible that a judge will not search for them. In a fact-driven guideline system in which many evidentiary factors may modify the base offense level, this may foster the very disparity and lack of accountability that the guidelines were designed to eliminate.