Sentencing Outcomes Research Articles

Pressing for Sentence? An Examination of the New Zealand Crown Prosecutorrs Role in Sentencing

Prosecutors are among the most powerful actors in any criminal justice system. The exercise of their discretion, however, has not been subjected to the same level of public and empirical scrutiny as other parts of the criminal justice system. To deepen understanding, I empirically explore for the first time the form, function and limits of the New Zealand Crown Prosecutor's role at the sentencing stage of the criminal justice process. Semi-structured interviews of a non-representative sample of ten New Zealand Crown Prosecutors are analysed using Hawkins’ (2002) framework that considers the decision-making ‘surround’, ‘field’ and ‘frames’. The findings suggest that whilst New Zealand’s regime shares history, principles, and structural features with the English and Australian regimes, it goes further to permit Crown Prosecutors a more assertive role in sentencing. Populist and managerial pressures are seen to create marked frustration, strain, and concern in the ‘surround’. Changes to funding models, in particular, suggest that the potential for unjust sentencing outcomes has increased. This ‘surround’ intrudes upon and transforms ‘frames’, with the opinions and presence of stakeholders influential at office and individual levels. Justice may therefore be reactive, forward-looking, or negotiated depending on those involved – something that is facilitated by the New Zealand regime’s privatised and decentralised form. Participants’ views also suggest that Crown Prosecutors ‘frame’ their role in occupational terms, with the lack of interest of universities, professional bodies, and law and policy-makers in offering or requiring prosecutorial training before entry to the role influential. Consequently, decision-making is rendered more susceptible to pressures in the ‘surround’ and ‘field’, and the scope for variation in ‘frames’ is increased.

An intersectional approach to race/ethnicity, sex, and age disparity in federal sentencing outcomes: An examination of policy across time periods

Approaches to intersectionality stress the importance of recognizing multiple, intersecting inequalities. As such, recent sentencing research has examined the changing role of extra-legal characteristics on United States federal sentencing outcomes in the aftermath of recent policy changes (e.g. United States v. Booker), but scholarship has less often examined these characteristics at the intersections of race/ethnicity, gender, and, especially age. This article uses an intersectional approach to examine the influence of these characteristics net of legally relevant characteristics. Using ordinary least squares regression procedures, the author examines the role of the joint effects of extra-legal variables on sentence length decisions across four distinct time periods. Net of control variables, results indicate that young black men are the group most likely to receive the longest sentences, but interesting differences between other groups also emerge.

Extralegal Disparity in the Application of Intermediate Sanctions: An Analysis of U.S. District Courts

The sentencing literature is replete with studies that have examined the influence of extralegal offender characteristics on two key sentence outcomes: the imprisonment and sentence length decisions. Yet the study of other outcomes, such as the application of intermediate sanctions, is rarely addressed. To date, no studies have been conducted in the federal courts to examine the potential influence of race/ethnicity, age, gender, and educational attainment on the decision to apply intermediate sanctions. Consequently, the present analysis employs U.S. Sentencing Commission data to examine direct and interactive effects of these extralegal characteristics on this understudied outcome. Findings indicate that extralegal effects may play an important role in the use of intermediate sanctions. The implications of this research are discussed in detail.

Boulton v The Queen: The Resurrection of Guideline Judgments in Australia?

Fair sentencing strives to balance an emphasis on individualised justice with an emphasis on consistency, both of which are essential in promoting just outcomes. While there is an inherent tension between the values, each is essential to a fair sentencing system. In grappling with these dual demands of proportionality and equality, however, different jurisdictions have placed different emphases on these two aspects of justice. The result has been two broad, competing paradigms of fairness in sentencing: ‘individualism’ versus ‘comparativism’. Guideline judgments are one way of promoting consistency in sentencing decisions while respecting the importance of maintaining sufficient discretion to individualise sentences. Despite statutory authorisation, however, the use of guideline judgments has been controversial because they challenge the individualist jurisprudence of the High Court, which characterises practical attempts to operationalise consistency as unduly limiting sentencing discretion. Victoria has traditionally been a proponent of this high individualism. The landmark nature of the Court of Appeal's recent decision to issue the state's first guideline judgment in Boulton v The Queen becomes apparent when viewed in this context. Though it suffers from the limitations of being forced to operate in a predominately individualist sentencing framework, Boulton hopefully signals the beginning of a more nuanced jurisprudence that recognises that fair sentencing outcomes are not just a question of the amount of discretion, they are also the product of practical appellate regulation of the decision-making process aimed at promoting sentences that are both individualised and equal between similar offenders.

The Joint Effects of Gender and Race/Ethnicity on Sentencing Outcomes in Federal Courts

Using data from the U.S. Sentencing Commission, the present study examines the interaction effects of gender and race/ethnicity on sentencing outcomes of male and female offenders in federal courts. Findings indicate that female offenders in all racial/ethnic categories receive less severe sentence outcomes than male offenders in the same categories, even after legal, extralegal, and contextual factors are controlled. In addition, racial/ethnic differences are found within gender groups, such that Hispanic males are more likely to be incarcerated and Black males receive longer sentence terms compared to White male offenders. However, contrary to expectations, the analysis indicates that White females are more likely to be incarcerated than Black and Hispanic females and receive longer sentence terms than Hispanic females. Gender and racial/ethnic interactions are also explored across offense type (drug vs. non-drug) and type of sentencing departure (no departure, downward, or substantial assistance). Implications for future research are also discussed.

The Effect of Race/Ethnicity on Sentencing: Examining Sentence Type, Jail Length, and Prison Length

The purpose of this research was to examine the impact of race/ethnicity on criminal sentencing outcomes. The findings from prior studies tend to be mixed on this issue. Using 4 years of data from the State Court Processing Statistics (2000, 2002, 2004, and 2006) and propensity score matching, we examined the impact of race/ethnicity on sentencing outcomes among Blacks, Hispanics, and Whites. The findings suggest that racial/ethnic biases occur in the sentence type (community sanction, jail, or prison) and jail length decisions though not in the prison length decision. It is important to separate jail length and prison length when examining incarceration time. Combining the 2 distinct sentences may confound the true impact of factors on these outcomes.

The Direct and Indirect Effects of Offender Drug Use on Federal Sentencing Outcomes

Objectives The federal sentencing guidelines constrain decision makers’ discretion to consider offenders’ life histories and current circumstances, including their histories of drug use and drug use at the time of the crime. However, the situation is complicated by the fact that judges are required to take the offender’s drug use into account in making bail and pretrial detention decisions and the ambiguity inherent in decisions regarding substantial assistance departures allows consideration of this factor. In this paper we build upon and extend prior research examining the impact of an offender’s drug use on sentences imposed on drug trafficking offenders.

The Model Minority Myth for Noncitizen Immigration Offenses and Sentencing Outcomes

Labeled the model minority, Asian Americans have been seen as less discriminated against than other racial/ethnic minorities in the different aspects of American society. Sentencing scholarship also revealed robust evidence that Asian offenders were not treated differently from White offenders in judicial decision making. Some research even found the most favorable sentencing outcomes for Asian offenders. However, it is unclear whether the model minority hypothesis is validated when only the criminal sentencing of noncitizen offenders is at issue. Using the U.S. Sentencing Commission’s sentencing data for fiscal years 2006–2007, the present study, with a focus specifically on immigration offenses, seeks to challenge this hypothesis by examining the extent to which an offender’s national origin and race/ethnicity affect sentencing outcomes. Findings reveal strong support for our argument that the model minority advantage is offense-specific and that it is not applicable to all types of offenses. Specifically, there is no model minority advantage for non-U.S. citizens’ immigration offenses.

Sentencing outcomes of the older prison population: an exploration of the age leniency argument

Using data compiled by the United States Sentencing Commission, we examine whether defendants sentenced in US federal courts are shown leniency based on their age, paying particular attention to the outcomes of older defendants (age 50 and over). One way in which this research is unique is that it focuses exclusively on a sample of older offenders and makes more precise distinctions by separately examining three categories of ‘elderly’ offenders – the ‘young-old,’ the ‘middle-old,’ and the ‘oldest-old.’ Consistent with prior research, our findings indicate an age leniency effect where younger defendants (the ‘young-old’) had the highest odds and older defendants (the ‘oldest-old’) had the lowest odds of incarceration. However, contrary to expectations, this finding does not hold for the sentence length decision. Legal factors (criminal history, number of counts, going to trial) also played a large role in increasing the likelihood and length of their sentence outcomes. In addition, variations were found across different types of offense categories. The findings in this study point to the importance of making clearer distinctions between the ‘elderly’ offender populations and suggest that findings may be masked if differences between the ‘young-old’ and the ‘old-old’ are not considered. Our results indicate the need for continued exploration of issues dealing specifically with the aging prison population, as well as the examination of policies and practices that impact offenders of all ages.

Epilepsy and homicide

PurposeWe report the rare case of a patient with intractable epilepsy and escalating aggression, resulting in murder, who had complete resolution of her seizures and explosive behavior following a right temporal lobectomy.Patients and methodsWe searched the available literature from 1880 to 2013 for cases of epilepsy being used as a court defense for murder and collected information regarding the final sentencing outcomes. We selected 15 papers with a total of 50 homicides.ResultsWe describe the case of a 47-year-old woman with drug-resistant right temporal epilepsy who developed increasing emotional lability, outbursts of anger and escalating violent behavior culminating in a violent murder. The patient was imprisoned while awaiting trial. In the interim, she underwent a successful temporal lobectomy with full resolution of seizures, interictal rage and aggressive behaviors. After the surgery, her charges were downgraded and she was transferred to a psychiatric facility.ConclusionThe aggressive behavior associated with epilepsy has been described in the literature for over a century. A link between epilepsy and aggression has been disproportionally emphasized. These patients share some common characteristics: they are usually young men with a long history of epilepsy and lower than average intelligence. The violent act is postictal, sudden-onset, more likely to occur after a cluster of seizures and is usually related with alcohol abuse.

Gender and Sentencing Outcomes in South Carolina

Despite sentencing reforms over the last few decades, many states failed to introduce guidelines, including South Carolina. The present article uses data collected from the now disbanded South Carolina Sentencing Commission (1982 to 2003) in order to assess the influence of gender, age, race, and type of crime. We found that females were consistently sentenced more leniently than were similarly situated males. Interactions between gender and the other variables, however, failed to gain significance with the exception of gender and offense type for the sentence length decision. Interestingly, we found a significant interaction between gender and offense severity level for both sentencing outcomes and criminal history for the incarceration decision. We discuss the implications of these findings in the event that South Carolina would have adopted sentencing guidelines.

Gender and Sentencing in the Federal Courts

Using data from the United States Sentencing Commission (2001-2003), we examine the role of gender in the sentencing of defendants in federal courts. We address two questions: First, can we explain the gender gap in sentencing by taking into account differences in legal and extralegal factors? And second, do legal and extralegal factors have the same impact for male and female defendants? Overall, we find that female defendants receive more lenient sentence outcomes than their male counterparts. Legal factors account for a large portion of the gender differences, but even after controlling for legal characteristics a substantial gap in sentencing outcomes remains. Also, despite their influence on sentencing outcomes in some instances, extralegal characteristics do not help to close the gender gap. Finally, when male and female defendants are examined separately, we find that not all legal and extralegal factors weigh equally for male and female defendants.

The Impact of Aggravating and Mitigating Factors on the Sentence Severity of Sex Offenders

The aggravating and mitigating circumstances that contribute to increased, or decreased, sentence severity for sex offenders have largely been unexplored. Although previous studies have evaluated offending groups who have targeted adult-only, or children-only victims, the current study compares the sentencing outcomes of both offending groups. Using a sample of 519 federally sentenced sex offenders in the province of Quebec the current study explores the extent to which the Canadian criminal justice system penalizes offender- and offense-based characteristics. The results indicate that offense-based characteristics increased sentence severity for offenders who victimized adults and offender-based characteristics influenced sentence severity for offenders who victimized children. Findings are discussed within the context of previous studies to empirically explore sex offender sentencing and compare differences that aggravating and mitigating circumstances have on sentence outcomes.

New Data and New Questions: TRAC’s Contribution to Federal Sentencing

Even in an era of advisory federal guidelines, it is still easy to focus on the technical minutiae of the Guidelines. The minutiae still matter because the Supreme Court has told us the Guidelines must still be considered and calculated accurately. But the Sentencing Reform Act and its overarching—although often conflicting and widely debated—goals for sentencing demand more. We must continue to resist allowing the Guidelines’ trees to obscure the sentencing forest. Data can help us evaluate sentencing systems and guide sentencing decision-making. Generally speaking, more data is better; though, as we have previously written in these pages, ‘‘Information is a tool and not a panacea.’’ To what use will and should we put sentencing information? Our current federal sentencing structure developed partially out of a concern about unwarranted disparity, but it can be challenging to understand exactly how that concern should inform data collection, what the extant sentencing data truly reveal about unwarranted disparities, and what else should be considered in any analysis of sentencing decisions. This isue of FSR implicates all these matters as we take stock of an important new data set concerning federal sentencing outcomes in recent years. In March 2012, the Transactional Records Access Clearinghouse (TRAC) released an analysis of more than 370,000 criminal cases sentenced in the federal courts during a five-year period. TRAC described its work as a ‘‘first-of-its-kind, judge-by-judge review of federal sentences imposed for drugs, white collar and other kinds of crimes,’’ and highlights from TRAC’s analysis were posted on its website under the heading ‘‘Surprising Judge-to-Judge Variations Documented in Federal Sentencing.’’ The press coverage of TRAC’s data spotlighted concerns about sentencing disparity; the Federal Public Defenders, in turn, were quick to issue a ‘‘Fact Sheet’’ spotlighting limitations and problems with TRAC’s raw data and initial analysis. Recognizing the import and potential impact of TRAC’s data, the Editors of FSR committed this issue primarily to the TRAC data and materials exploring the data’s meaning and import. The result is an issue brimming with updated data and expanded analyses from TRAC and the Defenders. In fact, this issue of FSR not only provides a guided tour of and a healthy debate between TRAC and the Defenders concerning the TRAC data, but also includes additional original commentary from others involved in the federal sentencing system concerning the TRAC data and its broader implications. These Editors’ Observations briefly highlight some of what the TRAC data do and do not add to our basic understanding of federal sentencing policies and practices in the post-Booker era. These Observations also suggest that, though new types of federal sentencing data should always be welcomed and assessed, it may now be time to ask (again) broader questions about the fundamental goals of the federal criminal justice system and Guideline sentencing practices.

Is Meth the New Crack for Women in the War on Drugs? Factors Affecting Sentencing Outcomes for Women and Parallels Between Meth and Crack.

Between 1996 and 2006, the federal laws that pertain to methamphetamine changed significantly. By 2006, methamphetamine offenses ranked number two among drugs for which women were convicted. There was a major increase in the number of women convicted of methamphetamine offenses. Using U.S. Sentencing Commission (USSC) data for 1996 and 2006, this research investigates the factors affecting sentencing outcomes among women convicted of methamphetamine in the federal system. A major finding is that mandatory minimum sentencing attached to the new thresholds for methamphetamine has a major affect on the likelihood of incarceration of women convicted of methamphetamine offenses in the federal system.

Judicial discretion in federal sentencing

Q uestions about who has authority to make which decisions with how much discretion has occupied the attention of organizational sociologists for years. As applied to the criminal legal system, the focus is on judicial and prosecutorial discretion. After decades of allowing judges extensive discretion within broadly defined statutory limits, coupled with unreviewable sentence outcomes in both federal and state courts, critics in the early 1970s and 1980s argued for limitations on judicial discretion (Frankel, 1972). Critics argued that judicial discretion produced uncertainty and disparity in sentence severity. Some social scientists found that that federal sentence disparity prior to reforms of the 1980s was linked to extralegal variables such as the defendant’s race/ethnicity, gender, and socioeconomic status (Albonetti, 1998, 1999; Hagan, Nagel, and Albonetti, 1982; Nagel and Hagan, 1982; Peterson and Hagan, 1984; Weisburd, Wheeler, Waring, and Bode, 1991; Wheeler, Weisburd, and Bode, 1982). Other researchers found no significant relationship between defendant’s socioeconomic status and sentence severity (Benson and Walker, 1988).

Assessing the relevance of legal and extralegal factors in felony drug sentencing: the case of Michigan

Previous research has identified several prominent legal and extralegal variables and their effect on sentencing outcomes. However, only a few states have been subjected to critical or scholarly analysis. With the focal concerns perspective in mind, the current study examines 399 male defendants convicted on federal drug trafficking charges in the state of Michigan during 2006. Findings reveal that legally relevant factors are the strongest predictor of sentence length, offenders who are detained prior to trial face disparate sentences, and district in which the defendant was adjudicated significantly impacts sentence outcome. These results confirm that case processing strategies are an important source of sentencing disparities.

Probation officers' recommendations and final sentencing outcomes

Using the focal concerns perspective, the current study examines the factors that affect probation officers’ recommendations and the effect these recommendations have on final sentencing decisions. Results indicate that there is a high level of agreement between probation officers’ recommendations and final sentencing decisions. When judges depart from recommendations, departures are most often upward, with judges sentencing defendants to a harsher penalty. Although it was predicted that the variables that construct the perceptual shorthand would have a greater influence on judges’ decisions than on probation officers’ recommendations, this was only partially supported by the findings. Final sentence outcomes appeared to be more directly influenced by race than the probation officers’ recommendations. Instead of having a direct effect, race affected probation officers’ recommendations through income and education. The implications of these findings are further discussed.

Judicial Discretion and Sentencing Behavior: Did the Feeney Amendment Rein in District Judges?

This research studies the impact of changes to judicial discretion on criminal sentencing outcomes. The 2003 Feeney Amendment restricted federal judges' ability to impose sentences outside of the Sentencing Guidelines and required appellate courts to review downward departures. Using data on all federal sentences between 1999 and 2004, we show that the amendment reduced downward departures by 5 percent. Controlling for characteristics of the crime and the offender, we find that the Amendment increased average prison sentences by about two months. There is no evidence that judges adjusted offense levels or criminal history in order to circumvent the Amendment.

Exploring Sex Disparity in Sentencing Outcomes: A Focus on Narcotics Offenders in South Korea

Most research on sentencing outcomes reveals that legally relevant factors such as the seriousness of the offense and prior criminal record are primary determinants. There is, however, a substantial body of research that finds that extralegal factors such as a defendant's sex also influence these outcomes. Most of these latter studies conclude that female defendants receive less severe outcomes compared to their male counterparts. Most of this research, however, is limited to Western societies. To extend this body of research, the current study examines sex differences in sentencing practices for a sample of narcotics offenders in South Korea. Results support previous research; female drug offenders in South Korea are generally treated more leniently than their male counterparts. Tests for interaction effects reveal that the defendant's sex also interacts with other constellations of factors to produce lenient treatment for certain female defendants. These tests, however, also reveal that lenient sentence outcomes are not extended to all female defendants; those with prior drug convictions do not fare better than their male counterparts at the incarceration decision.