Sentence Enhancement Research Articles

Felons in Possession: Examining the Impact of a Public Service Advertising Campaign and Sentence Enhancements

This paper examines the penetration impact of a multifaceted, deterrence-oriented public service advertisement campaign conducted in Kansas City. The campaign was designed to inform people with felonies about mandatory minimum sentencing related to being caught in possession of firearms. People under correctional supervision in the community completed self-report surveys regarding their awareness of federal sentence enhancements, their beliefs about future behaviors, and the impact such enhancements may have on future offending. Results from the survey of felons in the community indicate a high level of awareness of this campaign, and that the sentence enhancements significantly impacted their perceptions of criminal sanctioning.

“Striking out” as crime reduction policy: The impact of “three strikes” laws on crime rates in U.S. cities

During the 1990s, in response to public dissatisfaction over what were perceived as ineffective crime reduction policies, 25 states and Congress passed three strikes laws, designed to deter criminal offenders by mandating significant sentence enhancements for those with prior convictions. Few large-scale evaluations of the impact of these laws on crime rates, however, have been conducted. Our study used a multiple time series design and UCR data from 188 cities with populations of 100,000 or more for the two decades from 1980 to 2000. We found, first, that three strikes laws are positively associated with homicide rates in cities in three strikes states and, second, that cities in three strikes states witnessed no significant reduction in crime rates.

Treating gun violence before the 911 Call*1

Treating gun violence before the 911 Call*1

Punishing Hatred and Prejudice

This article undertakes a detailed examination of the justifications advanced for the national and international rush to enact and apply hate and bias crime legislation as an answer to the tragically brutal expressions of racial animosity, bigotry, homophobia, and misogyny that continue to remind the Western World of its inability to protect its citizens from those who do not share its egalitarian ideals. In undertaking this project, we seek to synthesize and critically evaluate over a decade's worth of scholarship on the wisdom of the enhanced penalties imposed by hate and bias crime legislation. We further seek to demonstrate that this literature, to date, has sadly failed to provide both an adequate moral justification and an acceptable doctrinal framework for this politically popular form of state action. The article is divided into four parts, corresponding to the four principal rationales for hate/bias crime legislation that have advanced over the past decade or more. Part I considers the - the claim that the harms perpetrated by offenders who are motivated by group-hatred or prejudice represent wrongs more serious than those perpetrated by defendants who commit the same offenses with different motivations. We work through an extensive catalogue of harms that are commonly claimed to be uniquely associated with hate- and bias-motivated crimes: elevated physical and psychic injuries to principal victims; wide-spread fear within the principal victim's community; a diminished faith in the legal system and an associated instability within the larger social order; vigilante acts of retaliation by victims and their communities; the publication by such criminal acts of harmful messages corruptive of the moral order; and the associated, but independent harm of the state being complicit whenever it fails to express in law the moral outrage that such statements properly incite. As we demonstrate, even if social science ultimately vindicates the empirical claims made by those who propound the various wrongdoing theses, there are conceptual and moral problems that prevent these arguments from justifying the blanket sentence enhancements imposed by existing hate and bias crime legislation. Part II takes up different versions of what we call the - the thesis that the disrespect for communities expressed by acts of group-hatred and prejudice properly invite denunciation by the state in the form of elevated criminal penalties. As we argue, either the expressivist thesis is redundant with the wrongdoing thesis, and so invites the problems articulated in Part I; or it depends upon a free-standing expressivist theory of punishment, and is, for that reason, unsustainable. Part III considers what we call the - the thesis that hate and prejudice constitute uniquely culpable mental states that justify penalties more severe than are meted out for other forms of viciousness. We demonstrate in this Part that if hate and bias are construed as culpability criteria, then hate/bias crimes are novel doctrinal inventions that are more at home within character-based theories of the criminal law that are best justified by political perfectionism, as opposed to act-based theories that are more in harmony with classic political liberalism. Finally, Part IV takes up the equality - the thesis that the enhanced penalties of hate/bias crimes properly function to achieve a more egalitarian distribution of the risk of crime within our society, because they deter the (further) victimization of groups of citizens who already bear a disproportionate amount of our society's violence. As we demonstrate, each of the various senses that can be ascribed to this claim render it either conceptually incoherent or morally indefensible, and as such, it fails to function as a promising alternative to the theories of hate/bias crime legislation that we examine in Parts I, II and III.

Constitutional Law. Right to Jury Trial. Eighth Circuit Holds an Adjudication of Juvenile Delinquency to Be a "Prior Conviction" for the Purpose of Sentence Enhancement at a Subsequent Criminal Proceeding. United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002)

Constitutional Law. Right to Jury Trial. Eighth Circuit Holds an Adjudication of Juvenile Delinquency to Be a "Prior Conviction" for the Purpose of Sentence Enhancement at a Subsequent Criminal Proceeding. United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002)

Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas

Last June, in Apprendi v. New Jersey, the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This rule, like most of criminal procedure law and scholarship, rests on the assumption that jury trials are the norm. In the real world, however, fewer than four percent of defendants go to trial before a jury; the vast majority plead guilty. This Article analyzes Apprendi as a case study in the shortcomings of trial-centered law and scholarship. This benign-seeming trial right will have unintended and perverse consequences in the real world of guilty pleas and Sentencing Guidelines. Apprendi's rule will deprive many defendants who plead guilty of sentencing hearings, promote prosecutorial arbitrariness, and undercut legislative guidance of unelected sentencing commissions. Instead of creating new trial rights that defendants cannot afford to exercise, the Court and scholars should instead focus on regulating guilty pleas and sentencing hearings. This Article proposes alternative solutions better adapted to the real world of guilty pleas and sentencing, such as preplea notice of sentence enhancements and procedural protections at sentencing. This Article concludes by suggesting more broadly how criminal procedure should move beyond its preoccupation with trials to improve the real world of guilty pleas and sentencing.

Statutory Rape as a Crime of Violence for Purposes of Sentence Enhancement Under the United States Sentencing Guidelines: Proposing a Limited Fact-Based Analysis

Statutory Rape as a Crime of Violence for Purposes of Sentence Enhancement Under the United States Sentencing Guidelines: Proposing a Limited Fact-Based Analysis

On legislation of Hate Crime Sentence Enhancement laws in the United States

On legislation of Hate Crime Sentence Enhancement laws in the United States

Deadly Words: State Power & the Entanglement of Speech and Violence in Hate Crime

Any analysis of hate crime that attempts to separate speech from action, language from violence, faces epistemological difficulties that limit the range of conversations about laws responding to identity-based injury in the United States. Active debates have raged over the implications of bias crime sentence enhancement laws for the protection of ‘free speech,' thus addressing the inextricability of language and meaning from hate crime. Those in favor of legal responses to identity-based injury tend toward essentialist claims which assume the stability of identity and of meanings inherent in words or actions. Those opposed assert the impossibility of codifying the meaning of words or actions in the law, and/or they worry about the reification of (victimized) identities accompanying bias crime statutes. This article argues that the focus on language and speech in these debates simultaneously enables an evasion of discussion about the law’s response to bias-related violence, and misleadingly assumes too much stability in the functions of law and the nature of state power. Interviews conducted by the author with individuals involved in a 1992 racist hate crime are used to show the diverse elements of state power suffusing the incident and its aftermath. An analysis of the crime’s investigation and prosecution under a Maryland hate crime statute suggests that law enforcement officers are primarily using hate crime laws as public relations tools in a fight against community perceptions that they are themselves bigots.

Using Sentence Enhancements to Distinguish Between Deterrence and Incapacitation

Differentiating empirically between deterrence and incapacitation is difficult since both are a function of expected punishment. In this paper we demonstrate that the introduction of sentence enhancements (i.e., increased punishments that are added on to prison sentences that would have been served anyway) provides a direct means of measuring deterrence. Because the criminal would have been sentenced to prison anyway, there is no additional incapacitation effect from the sentence enhancement in the short-run. Therefore, any immediate decrease in crime must be due to deterrence. We test the model using California's Proposition 8, which imposed sentence enhancements for a selected group of crimes. Using a differences-in-differences approach (comparing changes in eligible crimes relative to non-eligible crimes in California and the rest of the nation), Proposition 8 appears to reduce eligible crimes by four percent in the year following its passage and eight percent three years after passage. These immediate effects are consistent with deterrence. The impact of the law continues to increase five to seven years after its passage, suggesting that incapacitation may be important as well.

The Role of Discretion in the Criminal Justice System

Although a substantial body of research suggests that the discretion of discretion of actors in the criminal justice system is important, there is disagreement in the existing empirical literature over its role. Studies in this literature generally hypothesize that discretion plays one of two roles: either it serves as the means by which changing broad social norms against crime causes changes in sentencing patterns, or it serves as the means by which internal social norms of the criminal justice system prevent the implementation of formal changes in laws. We reject both of these hypotheses using data on the sentencing of California prisoners before and after Proposition 8, which provided for sentence enhancements for those convicted of certain serious' crimes with qualifying' criminal histories. We find that an increase in the statutory sentence for a given crime can increase sentence length for those who are charged with the crime, and also for those who are charged with factually 'similar' crimes, where a 'similar' crime is defined as one that has legal elements in common with the given crime. These spillovers are consistent with neither broad social norms nor internal social norms, so we conclude that discretion takes a less-well studied form, which we call 'prosecutorial maximization.'

Using Sentence Enhancements to Distinguish Between Deterrence and Incapacitation

Differentiating empirically between deterrence and incapacitation is difficult since both are a function of expected punishment. In this article we demonstrate that the introduction of sentence enhancements provides a direct means of measuring deterrence. Because the criminal would have been sentenced to prison even without the law change, there is no additional incapacitation effect from the sentence enhancement in the short run. Therefore, any immediate decrease in crime must be due to deterrence. We test the model using California's Proposition 8, which imposed sentence enhancements for a selected group of crimes. Proposition 8 appears to reduce eligible crimes by 4 percent in the year following its passage and 8 percent 3 years after passage. These immediate effects are consistent with deterrence. The impact of the law continues to increase 5–7 years after its passage, suggesting that incapacitation may be important as well.

PUNISHING POLITICAL OFFENDERS: THE EFFECT OF POLITICAL MOTIVE ON FEDERAL SENTENCING DECISIONS*

Although political motive is frequently avoided as an issue in the prosecution of terrorists, previous research indicates that these offenders consistently receive longer sentences than nonterrorists convicted of similar offenses (Smith, 1994). This study assesses the ability of three theoretical models (consensus, conflict, and structural‐contextual) to explain these differences in sentencing patterns. Data on terrorists (N = 95), provided by the Federal Bureau of Investigation, the Administrative Office of the U.S. Courts, and the U.S. Sentencing Commission, is matched with data on a sample of similarly convicted nonterrorists from the Federal Court Cases Integrated Data Base, 1970‐1991 (N = 403). Controlling for a number of demographic and sentencing‐related variables, the results indicate that the official label of “terrorist” is not only a significant predictor of sentence length, but emerges as the dominant explanatory variable in the analysis. The results provide general support for both consensus and conflict hypotheses, but only partial support for structural‐contextual theory. The findings also raise procedural questions regarding the extensive variation in sentencing between similarly situated defendants when political motive is used as a primary criterion for sentence enhancements.

Nichols V. United States, the Right to Counsel, and Collateral Sentence Enhancement: In Search of a Rationale

Nichols V. United States, the Right to Counsel, and Collateral Sentence Enhancement: In Search of a Rationale

The Treatment of Foreign Country Convictions as Predicates for Sentence Enhancement under Recidivist Statutes

[T]he whole purpose of our criminal justice system is to make some effort to prevent people from repeating criminal activity.2 The Missouri trial judge who made this point to a recidivist defendant may have exaggerated, but concern about the amount of crime committed by repeat offenders has recently prompted calls for stricter recidivist statutes.3 Every state currently authorizes increased punishment for repeat offenders4 under statutes varying in scope,5 harshness,6 and degree of discretion granted to sentencing

Freedom of thought as freedom of expression: Hate crime sentencing enhancement and first amendment theory

I Introduction On a purely moral or emotive level, concept of sentence enhancement for crimes motivated by racial or religious hatred(1) possesses substantial appeal to many. Racial and religious prejudice clearly runs counter to our nation's underlying normative tradition,(2) and it therefore seems perfectly appropriate for our government to take steps designed to eradicate this blight on national commitment to equality. Moreover, to extent that such governmental attempts are confined to enhancement of sentences for conduct that is already criminalized, one might assume, not unreasonably, that competing free speech concerns implicated by laws that directly penalize so-called hate speech(3) are rendered irrelevant. One does not, after all, have a constitutional right to commit murder, rape, or assault. Closer examination reveals, however, that sentencing enhancement laws actually implicate core notions of free speech theory. For such laws threaten fundamental ground rules concerning relationship between individual and government that inhere in American political theory of which protection of free expression is a central element. Also of possible relevance to constitutionality of sentencing enhancement laws, purely from a doctrinal perspective, is Supreme Court's recent decision in R.A.V. v. City of St. Paul.(4) There, Court unanimously held unconstitutional an ordinance that provided: Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.(5) A majority of Court, in an opinion by Justice Scalia, rejected argument that ordinance regulated only unprotected fighting words.(6) Noting that the ordinance goes even beyond mere content discrimination to actual viewpoint discrimination,(7) Justice Scalia reasoned that government cannot provide advantages to one side of a debate.(8) Although R.A.V. may be distinguishable from sentencing enhancement question because, unlike sentencing enhancement, expression was involved on at least a technical level in R.A.V., it is arguable that Justice Scalia's logic extends well beyond its factual context.(9) In light of widespread attention that sentencing enhancement laws are currently receiving,(10) it is appropriate to explore constitutional issues to which such laws give rise. In undertaking this exploration, however, it soon becomes apparent that a constitutional analysis of sentencing enhancement laws actually triggers a far more profound examination of fundamental theoretical underpinnings of free speech theory. My position is that whether one chooses to view it as a catalyst or as a fundamental element, protection of freedom of thought is essential to free speech right --that if government is permitted to invade sanctity of individual's private social and political attitudes, right of free speech is rendered basically meaningless. Ironically, then, one of greatest threats to freedom of expression derives from governmental restrictions on something other than classic communicative activities. If one accepts essential nature of freedom-of-thought postulate, constitutional implications for sentencing enhancement laws should be clear. Such laws criminalize no conduct that had not previously been made criminal. All they do is punish holding of political or social attitudes that government deems offensive or unacceptable. Hence, these laws represent a serious threat to values of free expression, despite fact that they fail to penalize directly any communicative activity. The first section of this article examines centrality of freedom of thought to underlying theory of free expression. …

Some further thoughts on “thought crimes”

My thinking on the issue of the constitutionality of sentence enhancement for racially motivated crimes has benefitted enormously from the commentary on my paper, as well as from the commentary directed to other authors. More importantly, this commentary has significantly advanced the inquiry on a topic that is both difficult and important. While agreeing with much of this commentary, there are, nonetheless, many points with which I do not agree. This short reply will be limited, however, to addressing only a few of the more salient points of disagreement. My major quarrel with Professor Martin Redish is his a priori assumption that [a]ll [sentencing enhancement laws] do is punish the of political or social that the government deems offensive or unacceptable.(1) Once Redish has put this First Amendment rabbit into the hat, he can, of course, pull it out to show that any justification for hate crime legislation will not meet the extraordinary applied in free speech cases. A key question, however, is whether statutes enhancing punishment for racial violence in fact do nothing more than punish someone for holding ... offensive political or social attitudes and thus should be subjected to the exceedingly searching reserved for laws that prohibit protected expression or punish beliefs. It was to answer this threshold question, not to justify an already documented infringement of speech, that I examined the various justifications for enhancement.(2) For if the government can invoke some justification other than punishing a person for offensive beliefs, then it is simply not the that all that the sentencing enhancement does is punish people for having unpopular beliefs. Thus, in failing to deal with the various justifications for enhancement, not as interests sufficient to allow infringement of core First Amendment rights, but as evidence that enhancement serves some other purpose than punishing a person for his beliefs, Redish both begs the question and creates a strawman.(3) Susan Gellman's piece in this symposium suffers from the same defect. She repeatedly insists that the ADL model statute cannot survive ... the analysis applicable to content-oriented restrictions on protected speech.(4) Again, however, the question on the table is whether enhanced punishment for racially motivated violence is a content-oriented restriction on expression or belief triggering scrutiny. It was to answer that question that I inquired, analogously to the Supreme Court's inquiry in United States v. O'Brien(5) and Texas v. Johnson,(6) whether the state has an interest for the enhancement unrelated to suppression of expression.(7) O'Brien, which upheld a conviction for draft card burning, applied quite minimal in light of the government's asserted speech neutral interest in efficiently administering the draft--an interest which Professor John Ely has aptly described as plausible but little more.(8) Thus, O'Brien is far from the strict case that Gellman claims it is.(9) As for Johnson, the Court subjected the flag desecration statute to strict scrutiny only after it had determined that the only state interest implicated in that was related to the suppression of expression.(10) Just as Redish and Gellman too facilely assume that core First Amendment values are infringed by penalty enhancement for racially motivated crimes, Professor Frederick Schauer too easily assumes away tough First Amendment problems. Schauer is correct in believing that as a doctrinal matter the Supreme Court might well consider retribution a sufficiently speech neutral justification for enhanced punishment.(11) But deeming an omnipresent justification such as retribution to be sufficient proof that a statute is not aimed at expression or belief is troubling as a matter of sound free speech policy. Schauer does not address this concern, nor the similar policy concerns raised by Professor Larry Alexander in his lucid and insightful commentary. …

A Comparative Study of the Preventive Effects of Mandatory Sentencing Laws for Gun Crimes

No policy designed to prevent firearm violence is more popular than mandatory sentence enhancements for gun crimes. By providing stiff and certain penalties when a gun is involved in an offense, sentence enhancement laws' promise to reduce the use of firearms by criminals. Because the laws apply only when a crime is committed, they impose no direct costs on legitimate gun owners. Opinion polls find that a large majority of the public favors mandatory sentence enhancements, and more than half the states have adopted them.2 If these laws deliver their expected crime preventive effects, they are an especially attractive approach to regulating the use of firearms.

The Use and Abuse of Sentence Enhancement for Firearms Offenses in California

Over at least the past quarter century there has been considerable debate about the problem in the United States. Proposals up to and including banning bullets and confiscating guns have been suggested. Policies directly and indirectly affecting legitimate gun owners almost always meet stiff opposition. In part, this opposition results from the tenacious and tightly knit culture.' Members of this culture are steeped in the folkways and mores of sporting gun use. They bridle at any attempt to blame them for crime or restrict them in what they see as responsible behavior on their part. Similarly, those who own guns for protection want crime levels enormously reduced before they surrender their own guns. Additionally, given the large number of privately owned guns in the United States today,2 the technical and legal impediments to effective gun prohibition may be insurmountable. One policy, however, typically receives support from both proand anticontrol forces: Individuals committing crimes with guns should receive harsher punishments than those who do not use firearms.3 As Colin Loftin and David McDowall point out:

Race, Ethnicity, and Determinate Sentencing

AbstractA study of 4729 sentences handed out during the first year of determinate sentencing in California shows subtle differences in the sentencing of Whites, Blacks, and Chicanos. As expected, main effects of race/ethnicity are not found. However, the type of offense, mode of disposition, and the defendant's prior record do affect sentencing differently, even with determinate sentencing, depending on the defendant's race/ethnicity. The detrimental effect of a prior record for Chicanos is especially interesting as it can be invoked legally as a sentence enhancement. The findings reported here demonstrate that Chicanos constitute a separate group, distinct from both Blacks and Whites, and must be treated accordingly in criminological research. So doing clarifies many of the inconsistencies in prior sentencing research.