National Assessment of Structured Sentencing.

MENU TITLE: Structured Sentencing Monograph
Series: BJA
Published: February 1996
136 pages
288,437 bytes

National Assessment of Structured Sentencing

February 1996

NCJ 153853

This document was prepared by the National Council
on Crime and Delinquency, supported by grant number
92-SA-CX-0003 awarded by the Bureau of Justice
Assistance, U.S. Department of Justice. The
opinions, findings, and conclusions or
recommendations expressed in this document are
those of the authors and do not necessarily
represent the official position or policies of the
U.S. Department of Justice.

Bureau of Justice Assistance
633 Indiana Avenue NW., Washington, DC 20531

U.S. Department of Justice Response Center
800-421-6770

Bureau of Justice Assistance Clearinghouse
800-688-4252

Bureau of Justice Assistance Internet Address
http://www.ojp.usdoj.gov/BJA

The Bureau of Justice Assistance is a component of
the Office of Justice Programs, which also
includes the Bureau of Justice Statistics, the
National Institute of Justice, the Office of
Juvenile Justice and Delinquency Prevention, and
the Office for Victims of Crime.

------------------------------

Foreword

With the incidence of violent crime continuing to
rise and public demands for harsher and more
certain punishment increasing, many States are
examining sentencing of offenders with an eye to
instituting reforms. Indeed, considerable reform
of criminal justice sentencing has already taken
place over the past two decades. 

Although these reforms have come primarily as a
response to criticism of rehabilitation attempts,
they have sought to accomplish widely differing
goals, including reducing disparity that results
from discretionary sentencing, increasing
sentencing fairness, establishing truth in
sentencing, and balancing sentencing policy with
limited correctional resources. To meet these
goals, sentencing reforms have taken a variety of
forms, and many States have adopted a combination
of sentencing schemes that can include determinate
or indeterminate sentencing, mandatory minimum
sentences for certain offenses, presumptive
sentencing guidelines, and voluntary or advisory
sentencing guidelines. The result is a patchwork
of structured sentencing models. 

This monograph presents the findings of the first
national assessment of sentencing reforms, which
was funded by the Bureau of Justice Assistance and
conducted by the National Council on Crime and
Delinquency, the Pennsylvania Commission on Crime
and Delinquency, and the Pennsylvania Commission
on Sentencing. The publication offers lessons
learned in the diverse efforts to structure
sentencing over the past two decades. These
lessons are offered in the context of a historical
perspective of sentencing practices used in the
United States, with a discussion of the issues
that led to the structured sentencing movement.
They are based on a national survey of existing
sentencing practices in the 50 States and the
District of Columbia. 

The Federal Government and 16 States have
implemented presumptive or voluntary/advisory
sentencing guidelines. Each of these States has
established guidelines for different purposes, and
most of them were asked to meet multiple goals,
including punishment, deterrence, incapacitation,
and rehabilitation. These purposes and goals
influence nearly every aspect of the guideline
development process.

While sentencing guideline systems should be
evaluated against their established goals, several
factors affect their successful implementation:
the political environment, legislative mandates,
adequate funding, and the development of coherent
sentencing policy. However, despite the lengthy
and complex process of writing guidelines and the
challenges of implementation, the existing
sentencing commissions and their guidelines have
succeeded in changing historic sentencing
patterns. Structured sentencing also can deter
potential offenders, incapacitate dangerous
offenders, and ensure that offenders who are not
dangerous receive fair and appropriate punishment.

As prison populations continue to grow, interest
in structured sentencing reforms also will
increase. It is our hope that this assessment of
structured sentencing reforms will be a valuable
resource to those States considering the formation
of sentencing commissions and the development of
sentencing guidelines.

------------------------------

Acknowledgments

The Bureau of Justice Assistance wishes to thank
James Austin, Ph.D.; Charles Jones, J.D.; John
Kramer, Ph.D.; and Phil Renninger of the National
Council on Crime and Delinquency for their efforts
in conducting this evaluation and compiling this
report.

In addition, BJA acknowledges the Advisory Board
members: the Honorable Helen Corrothers, formerly
of the U.S. Sentencing Commission; Donna Hunzeker
of the National Conference of State Legislatures;
Phyllis Newton of the U.S. Sentencing Commission;
Judge Thomas W. Ross of the North Carolina
Sentencing and Policy Advisory Commission; and
Sandra Shane-DuBow of the Wisconsin Sentencing
Commission.

------------------------------

Table of Contents

Executive Summary

Chapter 1. Introduction
 Structured Sentencing Definitions
 Focus of This Report

Chapter 2. Historical Trends and Issues in
Structured Sentencing
 Historical Developments Leading to Structured 
  Sentencing
 The History and Nature of Structured Sentencing   
  Reforms

Chapter 3. An Overview of Current Sentencing
Practices in the United States
 Mandatory Minimum Incarceration Sentences in the
  United States
 Currency of State Criminal Codes
 Use of Parole and Good Time
 Sentencing Commissions in the United States

Chapter 4. Sentencing Commission Structures and
Their Mandates
 Purposes of Reform
 Sentencing Commission Structure, Mandates, and
  Organization
 Political and Legal Context
 Summary

Chapter 5. Writing Sentencing Guidelines
 Offense Seriousness
 Criminal History
 Other Factors
 Developing Sentencing Recommendations
 Summary

Chapter 6. The Impact of Sentencing Guidelines
 Methodological Issues in Assessing Impact
 Impact on Sentencing Disparity
 Impact on Plea Bargaining
 Impact on Incarceration Rates
 Impact on Prison Crowding
 Projected Prison Populations for Guidelines       
  States
 Impact on Public Safety and Crime Rates
 Summary

Chapter 7. Summary
 Major Findings
 Policy Implications
 Recommendations

Sources for Further Information

Bibliography

Appendix A: Information on States Used for Impact  
 Analysis

------------------------------

Executive Summary

Criminal justice sentencing has undergone
considerable reform during the past two decades.
Because of excessive sentencing disparity and
criticisms of the rehabilitative ideal, many
States have replaced indeterminate sentencing with
structured sentencing schemes such as determinate
sentencing, mandatory minimum penalties, and
sentencing guidelines. Nevertheless, most States
retain indeterminate sentencing structures while
indicating interest in adopting such reforms.

The criminal justice community has yet to develop
a clear consensus on the goals of structured
sentencing. The following lists the most
frequently cited goals:

o Increase sentencing fairness.

o Reduce unwarranted disparity, either in the
decision to imprison (dispositional disparity)
and/or sentence length (durational disparity).

o Establish truth in sentencing.

o Establish a balance of sentencing policy with
limited correctional resources.

Structured sentencing reforms can be used to deter
potential offenders and incapacitate dangerous
offenders. Sentencing reforms can also be used to
reduce the likelihood and length of imprisonment
for the so-called non-dangerous offender.

This study is a review of lessons learned over the
past two decades in the diverse attempts to
structure sentencing. It was funded by the Bureau
of Justice Assistance (BJA) and jointly conducted
by the National Council on Crime and Delinquency
(NCCD), the Pennsylvania Commission on Crime and
Delinquency (PCCD), and the Pennsylvania
Commission on Sentencing (PCS).

Structured Sentencing Definitions

This examination of structured sentencing revealed
at the outset that consensus is lacking regarding
the meaning of sentencing guidelines, voluntary
sentencing guidelines, presumptive guidelines, and
advisory guidelines. Therefore, the first task in
preparing this report was to establish the
following definitions:

o Determinate: Sentences of incarceration in which
an offender is given a fixed term that may be
reduced by good time or earned time.

o Indeterminate: Sentences in which an
administrative agency, generally a parole board,
has the authority to release an offender and
determine whether an offender's parole will be
revoked for violations of the conditions of
release.

o Mandatory minimum: A minimum sentence that is
specified by statute and that may be applied for
all convictions of a particular crime or a crime
with special circumstances (e.g., robbery with a
firearm or selling drugs to a minor within 1,000
feet of a school).

o Presumptive sentencing guidelines: Sentencing
that meets the following conditions: (1) the
appropriate sentence for an offender in a specific
case is presumed to fall within a range of
sentences authorized by sentencing guidelines that
are adopted by a legislatively created sentencing
body, usually a sentencing commission; (2)
sentencing judges are expected to sentence within
the range or provide written justification for
departure; (3) the guidelines provide for some
review, usually appellate, of the departure.
Presumptive guidelines may employ determinate or
indeterminate sentencing structures.

o Voluntary/advisory sentencing guidelines:
Recommended sentencing policies that are not
required by law. Usually based on past sentencing
practices, they serve as a guide to judges. The
legislature has not mandated their use.
Voluntary/advisory guidelines may employ
determinate or indeterminate sentencing
structures.

Major Findings

One major objective of this study was to conduct a
national survey of sentencing practices to
classify each State's primary sentencing systems.
The results of this survey are summarized below.

Current Sentencing Practices

o An unprecedented number of structured sentencing
reforms have taken place over the past two
decades. To date, 16 States and the Federal
Government have implemented, or are about to
implement, presumptive or voluntary/advisory
sentencing guidelines. Another five States have
adopted determinate sentencing systems.

o All States employ some version of mandatory
minimum sentencing laws, which target habitual
offenders and the crimes of possessing a deadly
weapon, driving under the influence of alcohol,
and possessing and distributing drugs.

o Most States continue to allow inmates to earn
good-time credits either to reduce a sentence or
to advance a parole eligibility date.

o Most States, including those that have adopted
determinate and sentencing guideline models, have
retained some form of discretionary release and
postrelease supervision.

o Most States do not employ sentencing guidelines.
Furthermore, five States have tried and failed to
adopt sentencing guidelines.

Sentencing Guideline Models: Purposes and Goals

o Virtually all guideline commissions were asked
to meet the multiple goals of punishment (just
deserts), deterrence, incapacitation, and
rehabilitation.

o Few jurisdictions explicitly state the goal of
eliminating disparity with respect to race,
gender, or social or economic status.

o Only a few guideline commissions were required
to consider the impact of guidelines on the need
for future correctional resources (i.e., number of
new prison beds).

Structure of Sentencing Guidelines and Sentencing
Commissions

o The structure of sentencing guidelines varies
dramatically for both assessing sentencing
disposition criteria and determining sentence
length.

o The most common format for guidelines is the
two-variable matrix, which relies on offense
severity and prior criminal history.

o Sentencing commission membership varies
considerably in number and type of members
selected.

o In general, membership includes judges,
prosecutors, defense attorneys, and private
citizens. Corrections officials, legislators, and
law enforcement officials are often included on
these commissions.

Implementation Issues

o The process for implementing guidelines is
neither quick nor inexpensive. Implementation
often requires 2 years.

o The annual budgets for guideline commissions and
support staff range from $250,000 to $500,000.
Considerable support is required to monitor and
analyze compliance with guidelines and to project
the impact of modifying guidelines.

o Before guideline implementation, detailed data
on current sentencing patterns should be collected
and analyzed. A jurisdiction will also need to
develop a simulation model for estimating the
impact of the proposed guidelines on prison,
parole, probation, and jail populations.

Impact of Sentencing Guidelines

o States that have implemented presumptive
guidelines have reported high compliance rates and
have changed historical sentencing trends.

o Repeat offenders and offenders convicted of
violent crimes are much more likely to be
imprisoned and serve longer prison terms under
sentencing guidelines. Conversely, first-time
offenders charged with property crimes are less
likely to be imprisoned and generally serve
shorter prison terms.

o Partly because of guidelines, persons convicted
of drug crimes (possession and sale) are now much
more likely to be imprisoned and serve lengthy
prison terms. This trend has directly increased
the rate of imprisonment for African-American and
Hispanic-Latino/Latina offenders.

o Guidelines have helped reduce sentencing
disparity; however, disparity reductions have
eroded somewhat over time.

o There is limited evidence that guideline
sentencing structures designed to account for
correctional resources have had slower rates of
growth in incarceration and helped to control
prison crowding. However, prison crowding remains
a problem for most States.

o Guideline States, like nonguideline States, are
likely to suffer from overcrowding over the next
decade unless they embark on a substantial prison
construction program or reduce prison terms for
violent and drug offenders.

Policy Implications

Reducing Disparity While Maintaining Discretion

The decisions that a jurisdiction must make about
its criminal justice laws will have a major impact
on the quality of justice and cost to its
citizens. If laws or commissions do not make these
decisions, then they are left to individual judges
who must (1) determine what they perceive as just
sentences and (2) determine the best use of State
and local correctional resources. The major
question remains: Can the development of
structured sentencing, and presumptive sentencing
guidelines in particular, overcome
well-established organizational values that may
facilitate and protect inequitable sentencing
practices?

One continuing concern is the ability to
individualize sentencing and consider a wide range
of sentencing purposes while maintaining an
equitable sentencing system. Most States have
attempted to control the individualization of
judicial practices while maintaining that
sentences should consider the full range of
traditional sentencing purposes. For example,
Pennsylvania requires judges to consider
offenders' rehabilitative potential and community
protection as well as the guidelines. In
Washington, the enabling legislation mandates that
sentencing guidelines incorporate the goals of
retribution, incapacitation, rehabilitation, and
frugal use of correctional resources. Both of
these States may be the most explicit examples of
the effort to structure sentencing while
maintaining adequate court discretion to fashion
sentences to individual offenders.

Recent innovations in Oregon and Louisiana have
expanded the range of sentencing options and
provided for the reduction of disparity. This new
approach illustrates that sentences can be very
different yet equal; this approach is an important
move forward in the evolution of sentencing
guidelines. Future commissions may develop
guidelines that will increase fairness, equity,
and proportionality while still providing for a
full range of sentencing options.

Displacement of Discretion

One of the key issues facing those attempting to
control sentencing discretion is displacement of
discretion from the courts to the prosecutors. The
concern is that guidelines have merely shifted
discretion from parole boards, prison officials,
and judges to prosecutors. Little evidence exists
to document how much this has occurred. Clearly,
more research is needed in this area of sentencing
reform.

Prison Crowding

To date, structured sentencing reforms have not
had any appreciable effect on the problem of
prison crowding. Until the legislative process and
sentencing commissions can tune out pressures to
get tough on crime, there is little reason to
believe that structured sentencing models will
solve the prison-crowding problem.

Furthermore, as State prisons remain crowded, they
will continue to employ discretionary early
release programs. Depending on how such programs
are structured, attempts to reduce disparity may
be lost in the determination of how much time
similarly situated offenders will serve.

Recommendations
(The recommendations in this section are those of
the Advisory Board.)

The purpose of this project was not to advocate
one form of sentencing policy, whether it be
presumptive guidelines, voluntary/advisory
guidelines, determinate sentencing, or
indeterminate sentencing. Disparity, incarceration
rates, and prison crowding can be reduced by
several sentencing reform measures. The question
is how best to achieve these goals.

The most promising model is sentencing guidelines
developed by sentencing commissions. Such systems
have enhanced the State's ability to set
sentencing goals and, in some instances, limits on
what a State is willing to invest in prisons. In
view of both the strong trend toward sentencing
commissions and the continued growth of prison
populations, it is likely interest in sentencing
guidelines developed by commissions will continue.

However, it should be noted that this report also
provides examples of guidelines failing to improve
the quality of justice. Guidelines work depending
on how they are designed and implemented (and for
what purposes). Guidelines should not be expected
to solve all the problems surrounding the
dispensing of justice and reducing crime.

What follows are the Advisory Board's
recommendations that States might consider in
developing structured sentencing policies.

o Commission representation participation. Broad
participation in the guideline development process
cultivates commitment to the final guidelines and
improves their quality.

o Resources. Adequate financial support is
necessary for a commission to study a State's past
sentencing practices; study what other States have
accomplished; prepare reports and proposals; meet
regularly and hire consultants when necessary;
provide ongoing feedback to the court and other
governmental agencies; and monitor and evaluate
the impact of the sentencing guidelines.

o Ongoing monitoring and support. Commissions that
have successfully implemented guidelines have
received increases in their budgets and staffs in
the postimplementation years, probably because of
continually increasing responsibilities imposed on
the commissions by the legislature and the cost of
maintaining and evaluating guidelines.

o Appellate review. Without an enforcement
mechanism, guidelines are merely
voluntary/advisory and so may have little impact
on sentencing practices. The common procedure is
to provide for an appellate review initiated by
either the defense or the prosecution.

o Mandatory minimum sentences. The increased use
of mandatory minimum penalties is preventing the
achievement of the dual goals of reducing
disparity and controlling population growth in
institutions. States should resist such provisions
if they affect large proportions of its sentenced
population.

o Controlling the use of departures. To help
reduce unwarranted disparity, States should
specify as much as possible the type of departures
from guidelines that are acceptable. Moreover,
sentencing commissions should carefully monitor
the frequency and direction of departures, at
least according to crime category, race, and
gender.

o Role of the Federal Government. States adopting
guidelines need assistance. The Federal Government
can play an important role by providing a modest
amount of assistance in the following areas:

o Establishing and maintaining a national
clearinghouse on structured sentencing.

o Convening annual meetings for State sentencing
commissions to share information and research
findings.

o Establishing a funding program to help States
develop technologies necessary to support the
development or modification of existing sentencing
structures. Assistance is required, especially in
the following areas:

o Conducting comprehensive studies of existing
sentencing practices that can be used to guide
States in the formulation of new sentencing
structures.

o Developing new methods or providing training to
States in existing analytic methods for measuring
disparity.

o Designing information systems that can be used
to monitor compliance with sentencing criteria.

o Developing and improving criminal court and
correctional population simulation technology
(jails, prisons, probation, and parole).

o Developing and improving methods of designing
and pilot-testing sentencing guideline methods.

Finally, more research is needed to assess whether
guidelines and other forms of structured
sentencing are reducing sentencing disparity. As
indicated above, a number of States have
implemented, or are about to implement, sentencing
guidelines. Independent process evaluations and
impact evaluations of these new structured
sentencing reforms would be valuable to the field.

A better understanding is also needed concerning
the effect of reforms external to the guidelines
on sentencing disparity, especially along racial
lines. Topics to be addressed include the impact
of mandatory minimum provisions for certain drug
crimes on disparity and the effect of guidelines
on shifting discretion from the courts to the
front end of the system (arrest, charging, and
plea bargaining). Such studies will help clarify
how best to correct undesirable and unequal
sentencing practices.

------------------------------

Chapter 1

Introduction

The past two decades have brought considerable
reforms in criminal justice sentencing. Criticisms
of excessive disparity and of the rehabilitative
ideal have prompted many States to replace
indeterminate sentencing with structured
sentencing schemes such as determinate sentencing,
mandatory minimum penalties, and sentencing
guidelines. Nevertheless, most States retain
indeterminate sentencing structures while
indicating interest in adopting these reforms.

The criminal justice community has yet to develop
a clear consensus on the basic definitions of
structured sentencing and its goals. Indeed,
States that have adopted various forms of
structured sentencing have done so with multiple
goals and expectations. The most frequently cited
goals are the following: increasing sentencing
fairness; reducing unwarranted disparity, either
in the decision to imprison (dispositional
disparity) and/or in sentence length (durational
disparity); establishing truth in sentencing; and
establishing a balance of sentencing policy with
limited correctional resources.

Structured sentencing reforms can be used to
increase the certainty of punishment and mandate
the period of imprisonment so that potential
offenders are deterred and dangerous offenders are
incapacitated. At the same time, sentencing
reforms can be used to reduce the likelihood and
length of imprisonment for the so-called
nondangerous offender. Some State officials hope
that these reforms can help them avoid a severe
prison-crowding situation by regulating prison
population growth according to available
correctional resources. However, these purposes
are not universally accepted, and the means used
to implement them vary considerably among
jurisdictions.

This study, which was funded by the Bureau of
Justice Assistance (BJA) and jointly conducted by
the National Council on Crime and Delinquency
(NCCD), the Pennsylvania Commission on Crime and
Delinquency (PCCD), and the Pennsylvania
Commission on Sentencing (PCS), is a review of
lessons learned over the past two decades in the
diverse attempts to structure sentencing.

Structured Sentencing Definitions

This examination of the various forms of
structured sentencing revealed at the outset the
lack of consensus regarding the meaning of basic,
commonly used terms such as determinate
sentencing, sentencing guidelines, voluntary
sentencing guidelines, presumptive guidelines, and
advisory guidelines. Therefore, the first task in
preparing this report was to develop a series of
definitions of terms used throughout the document
in the hope of bringing some consistency to the
field as well as helping the reader follow this
discussion. The following definitions apply
throughout the report:

o Determinate: Sentences of incarceration in which
an offender is given a fixed term that may be
reduced by good time or earned time. There are
usually explicit standards specifying the amount
of punishment and a set release date with no
review by an administrative agency (parole board).
Postincarceration supervision (parole) may be a
part of the sentence.

o Indeterminate: Sentences in which an
administrative agency, generally a parole board,
has the authority to release an offender and
determine whether an offender's parole will be
revoked for violations of the conditions of
release. In one form of indeterminate sentencing,
the judge specifies only the maximum sentence
length; the associated minimum duration is
automatically implied but is not within the
judge's discretion. In the more traditional form
of indeterminate sentencing, the judge specifies a
maximum and minimum duration that is set by
statute. The sentencing judge has discretion on
the minimum and maximum sentence.

o Mandatory minimum: A minimum sentence that is
specified by statute and that may be applied for
all convictions of a particular crime or a
particular crime with special circumstances (e.g.,
robbery with a firearm or selling drugs to a minor
within 1,000 feet of a school).

o Presumptive sentencing guidelines: Sentencing
that meets the following conditions: (1) the
appropriate sentence for an offender in a specific
case is presumed to fall within a range of
sentences authorized by sentencing guidelines that
are adopted by a legislatively created sentencing
body, usually a sentencing commission; (2)
sentencing judges are expected to sentence within
the range or provide written justification for
departure; (3) the guidelines provide for some
review, usually appellate, of the departure.
Presumptive guidelines may employ determinate or
indeterminate sentencing structures.

o Voluntary/advisory sentencing guidelines:
Recommended sentencing policies that are not
required by law. Usually based on past sentencing
practices, they serve as a guide to judges. The
legislature has not mandated their use.
Voluntary/advisory guidelines may employ
determinate or indeterminate sentencing
structures.

Focus of This Report

In the course of completing the study, researchers
visited a number of States to collect various
types of information regarding the structure of a
State's sentencing system and to document the
process of implementation. The researchers also
reviewed and synthesized major studies of current
structured sentencing systems that assess their
impact on disparity, the use of incarceration, and
prison crowding. The remainder of this publication
provides a broad overview of sentencing reforms
and a detailed examination of sentencing
guidelines.

Chapter 2 provides the reader with a summary of
the historical trends in sentencing reforms since
1970. The chapter begins with a discussion of
those factors or issues underpinning the
structured sentencing movement, such as the
disillusionment with indeterminate sentencing and
rehabilitation. The chapter then reviews three
major forms of sentencing reforms
(voluntary/advisory guidelines, determinate
sentencing, and presumptive guidelines), providing
examples of States that have attempted each type
of reform.

Chapter 3 describes the results of a national
survey of the 50 States and the District of
Columbia. This survey represents the first major
national assessment of the various sentencing
schemes that now exist throughout the Nation.
Included in the presentation is a detailed matrix
that lists the key sentencing law attributes for
each State, including the use of parole and
mandatory sentencing provisions.

In Chapter 4, the focus shifts to sentencing
guidelines and the use of sentencing commissions.
The chapter describes the foundation on which a
sentencing commission and its guidelines are
built: the political and legal context, the
State's purposes or goals for reform, the specific
legislative structure of the commission, and the
legislative mandates included in the enabling
legislation.

Chapter 5 describes the complex decisionmaking and
technical aspects of writing sentencing
guidelines. The chapter also provides detailed
information about how various States have made
decisions in writing sentencing guidelines.

Chapter 6 is an analysis of the relative effects
of sentencing reforms on a number of key areas,
including sentencing disparity, incarceration
rates, prison crowding, and future prison
population growth. The chapter summarizes the
findings of studies on disparity, using an
analysis of national criminal justice data to
compare trends in incarceration, prison crowding,
and crime rates among some of the early guideline
States and comparable nonguideline States.

The last chapter summarizes the major findings of
this study and its policy implications. Specific
recommendations are offered for further
advancement of sentencing reforms with help from
the Federal Government, which can provide
additional technical assistance to the States in
improving criminal justice sentencing.

------------------------------

Chapter 2

Historical Trends and Issues in Structured
Sentencing

Controlling discretion has presented a quandary
for the criminal justice system throughout this
century and particularly during the past 20 years.
In his comprehensive review of discretion within
the criminal justice system, Samuel Walker makes
the following statements:

 . . . [T]he criminal justice "system" is nothing
more than the sum total of a series of
discretionary decisions by innumerable officials .
. . [the real problem] . . . is not discretion,
but its misuse.1

Police misuse of discretion received much
attention during the 1960's. During the 1970's,
concern over discretion exercised by the courts,
parole, and corrections grew as crime rates
increased. The past 20 years have produced many
accusations but few studies documenting the misuse
of discretion by judges, parole boards, and
corrections officials, resulting in unwarranted
sentencing disparity. Such unwarranted disparity
results in undue leniency, excessive harshness,
and uncertainty of sanctions.2

The solution to the problem of unwarranted
sentencing disparity has been to structure
sentencing discretion. However, a variety of
mechanisms has been used to structure discretion,
resulting in a patchwork of structured sentencing
models that includes determinate sentencing,
voluntary/advisory guidelines, and presumptive
guidelines. What follows is a historical overview
of these various reform efforts, which were
intended to remove disparity in sentencing as well
as improve the credibility of the criminal justice
system.

Historical Developments Leading to Structured
Sentencing

The Indeterminate Period

At the end of the 19th century, sentencing reform
in the United States involved replacing the flat
sentence with indeterminate sentences. The
criminal justice system was coping with a rapidly
increasing number of individuals imprisoned as a
result of an expanding population of immigrants
and transients, increased efficiency of the police
and courts, the fixed sentence, and other factors.
Overcrowded prisons and the mere warehousing of
inmates resulted.3

At first, piecemeal reforms such as the use of
pardons, good time, and probation provided needed
flexibility for grappling with an expanding and
diversifying prison population. These reforms
gradually led to an increase in indeterminate
sentences given by 19th-century judges. The
movement toward indeterminate sentences was
spurred by the Declaration of Principles of the
First Congress of the National Prison Association,
which met in Cincinnati in 1870. The declaration
urged that "preemptory sentences ought to be
replaced by those of indeterminate length.
Sentences limited only by satisfactory proof of
reformation should be substituted for those
measured by the mere lapse of time."4

Under indeterminate sentences, offenders received
a minimum and maximum sentence, and the parole
board determined the time of actual release. Alan
Dershowitz later characterized this shift as one
from a judicial to an administrative model of
sentencing.5 The parole board's determination of
when the sentence was served, in turn, depended on
its judgment of whether the prisoner had been
reformed or cured or had simply served enough
time.

With indeterminate sentencing, discretion was
distributed not only among the prosecutor, defense
counsel, and judge but also, for those imprisoned,
among prison officials and the parole board. The
latter two agencies had considerable influence
over an offender's length of stay. Prison
officials had discretion over the amount of good
time an inmate could earn, which would dictate the
prisoner's parole eligibility and/or discharge
date. Parole boards controlled the actual release
decision for most inmates. The result was a system
of sentencing in which there was little
understanding or predictability as to who would be
imprisoned and for how long.

Attacks on Indeterminacy

Under indeterminate sentencing, the sentence was
individualized so that the punishment fit the
criminal rather than the crime. However, this
approach prompted numerous accusations of
disparity in sentencing and, over time, protests
from inmate groups, penologists, and other critics
of the penal system.

One of the most influential reports critical of
indeterminate sentences was the 1971 American
Friends Service Committee's work entitled Struggle
for Justice: A Report on Crime and Punishment in
America, written by "scholars working in the field
of criminal justice" and "those who have been on
the receiving end of the justice system."6 The
report used anecdotal evidence, results of prison
riot studies, and personal testimony from inmates
to critique the function of punishment and reject
the rehabilitation model. Specifically, the report
questioned the assumption that crime is a product
of individual pathology and that rehabilitation
can be achieved within a prison system designed to
punish and not treat inmates. It also criticized
the assumption that penologists have the knowledge
to impose treatment or to accurately predict
recidivism to justify discretion in determining
when an inmate should be released.

Drawing on Struggle for Justice: A Report on Crime
and Punishment in America were two other important
works also critical of indeterminate sentencing:
the report of the Twentieth Century Fund's Task
Force on Criminal Sentencing entitled Fair and
Certain Punishment (particularly the background
paper by Alan Dershowitz)7 and the report of the
Committee for the Study of Incarceration, which
was published as Andrew von Hirsch's Doing
Justice: The Choice of Punishments.8 Both
Dershowitz and von Hirsch argued for a shift from
indeterminate to more determinate sentencing and
for what has been termed the "presumptive
sentence." They asserted that these concepts, if
implemented, would lead to greater predictability
in determining proper sentence disposition (prison
versus probation) and length of imprisonment.
However, there were important differences in the
scope of each author's suggested reforms.

Dershowitz's presumptive sentence would require
legislatures to set specific penalties for crimes
on the basis of the comparative seriousness of the
offense, with more serious crimes appropriately
receiving a harsher presumptive sentence. The
judge would be obliged to impose the statutorily
set penalty, which could be raised or lowered
through the application of aggravating or
mitigating factors by the court. Dershowitz's
proposals called for the retention of parole, but
with limitations.

While Dershowitz called for a shift in emphasis
from administrative sentencing to a greater
legislative and judicial role, von Hirsch argued
for a more radical departure by rejecting the
value of general deterrence, rehabilitation, and
incapacitation as punishment justifications. He
concluded that States should base their sentencing
schemes on a "just deserts" or "commensurate
deserts" paradigm. Sentencing would be narrowly
based on only the seriousness of the offense and
the culpability of an offender rather than on an
offender's need for "treatment" or on the naive
hope that sentencing would somehow affect crime
rates.

Such a sentencing system would focus not on
individualization of punishment but on structuring
the system of punishment. The approach would
sharply reduce judicial sentencing discretion by
establishing punishment categories within which
penalties for comparable serious offenses could be
grouped on a scale. By using only two factors--
offense severity and, to a limited degree, prior
criminal history--a presumptive sentence would be
determined. Judicial discretion would thus be
limited to setting a presumptive term within a
specified sentencing range or justifying
departures by applying allowable aggravating or
mitigating factors. Departures would be monitored
and somewhat circumscribed by allowing judicial
review of sentencing, a process that was
previously almost nonexistent. Von Hirsch
initially insisted that discretionary release by
parole boards be abolished.

Another influential voice in the early discussions
of structured sentencing was that of Judge Marvin
Frankel in his book Criminal Sentences: Law
Without Order. In 1972, when Frankel's book was
published, no models for sentencing guidelines
existed. Although he was a judge, Frankel made
such a strong case for controlling discretion that
the concept of judicial discretion was shattered.
Moreover, Frankel foresaw the need to develop a
regulatory approach, articulating the principle on
which his proposal rested as follows:

We boast that ours is a "government of laws, not
men." We do not mean by the quoted principle that
men make no difference in the administration of
law. Among the basic things that we do mean is
that all of us, governors and governed alike, are
or ought to be bound by laws of general and equal
application. We mean, too, that in a just legal
order, the laws should be knowable and
intelligible so that, to the fullest extent
possible, a person meaning to obey the law may
know his obligations and predict within decent
limits the legal consequences of his conduct.9

The problem according to Frankel was that " . . .
the sweeping power of a single judge to determine
the sentence, as a matter of largely unreviewable
`discretion' is a--perhaps `the'--central evil in
the system."10 One part of the solution was the
development of appellate review of sentencing. At
the time of Frankel's writing, there was "in
practical effect no appeal from the trial judge's
sentence."11

Like the other authors previously cited, Frankel
attacked the indeterminate sentence, primarily on
the grounds of cruelty and injustice. However, he
suggested that indeterminate sentences may be
appropriate for dangerous offenders, drug users,
some sex offenders, and juvenile offenders.

Frankel recommended that the legislature provide
direction as to the purposes and justifications of
criminal sanctions. He proposed the establishment
of a Commission on Sentencing, which would be a
permanent agency formed to study sentencing,
corrections, and parole; formulate rules and laws
based on its studies; and enact rules subject to
checks by Congress, State legislatures, and the
courts.

However, Frankel did not expect the proposed
sentencing commission to escalate the use of
imprisonment, which he regarded as already too
severe. He hoped that a sentencing commission
could act as a buffer, shielding the legislature
from political pressures to respond to ever
increasing demands for more punitive sanctions and
to help control prison population growth.

Early Guideline Developments

During the same period, researchers who were
developing parole release guidelines for the U.S.
Board of Parole began to experiment with applying
this methodology to sentencing decisions.12 In the
1960's, parole guidelines had been developed by
using a two-dimensional matrix relating the
seriousness of the instant offense and the
probability of recidivism (or the salient factor
score) to an expected time served before release
on parole. A small range was provided, within
which parole hearing examiners had to set the
length of incarceration. Departures were
permitted, but written reasons for such departures
were required. Because the judiciary supported and
strongly commended parole guidelines, the concept
of guidelines was believed to have value and to be
adaptable to sentencing.

A model for parole guidelines was applied
experimentally to sentencing for the first time
between 1974 and 1976 in four jurisdictions. Two
sites (Denver and the State of Vermont) were
active participants, and two sites (Essex County,
New Jersey, and Polk County, Iowa) were observers.
This feasibility study was described as an action
research project in which researchers studied
existing sentencing processes. The judiciary was
involved in all phases of the project, from the
gathering of all information relevant to
sentencing discretion, to the analysis of factors
that accounted for the greatest variation in the
judges' sentencing decisions. The researchers did
not attempt to develop prescriptive notions of
what would be a "right" sentence. Instead, they
were trying to understand what underlying factors
influenced the sentencing decision.

The analysis indicated that although there was
considerable disparity among judges' sentencing
decisions, two factors explained the largest
variations: seriousness of the current offense and
the extent of the offender's prior record. More
importantly, judges who participated in the
research expressed support for the concept of
guidelines to better help them reach sentencing
decisions.

The History and Nature of Structured Sentencing
Reforms

Since the late 1970's, nearly all State sentencing
practices have fallen into four broad categories:
(1) voluntary/advisory sentencing guidelines, (2)
determinate sentencing, (3) presumptive sentencing
guidelines, and (4) traditional indeterminate
sentencing. Along with mandatory sentencing, the
first three models represent the most common forms
of structured sentencing, although there are many
variations of each.

The remainder of this chapter presents a
historical overview of structured sentencing
efforts to date. The overview identifies the
significant issues in sentencing reform that are
addressed by this project and describes the key
attributes of structured sentencing systems that
some jurisdictions have considered or incorporated
in developing their own structured sentencing
systems. These examples show that structured
sentencing is not a single or unified concept.
Instead, it embodies a variety of approaches to
identifying the particular goals of sentencing in
a specific jurisdiction and to achieving those
goals by structuring the discretion of sentencers
(judges, parole boards, prosecutors, and prison
officials) at various points in the criminal
justice system.

Voluntary/Advisory Sentencing Guidelines

Among the earliest sentencing innovations in the
United States was the experiment with
voluntary/advisory guidelines, called "voluntary"
because judges were not required to comply with
them. They emerged in part to counter determinate
sentencing reforms as adopted in California,
Illinois, and Indiana in 1977.

The earliest voluntary/advisory guidelines
projects originated as a result of a multiyear
project beginning in 1974 and funded by the
National Institute of Justice. The purpose of the
project was to study the feasibility of
empirically based guidelines for sentencing.13 The
project provided support to researchers who had
been instrumental in developing parole guidelines
so that the guidelines could be field tested in
Denver; Newark, New Jersey; Chicago; Phoenix; and
Philadelphia between 1975 and 1980.

In addition, experiments with voluntary/advisory
guidelines in Florida and Maryland later became
institutionalized. In Florida, statewide
voluntary/advisory guidelines were revised by a
sentencing commission and converted into
presumptive guidelines in 1983. In the same year,
Maryland formally adopted statewide
voluntary/advisory guidelines. The States of
Massachusetts, Michigan, Rhode Island, Utah, and
Wisconsin also experimented with
voluntary/advisory guideline systems at varying
levels.14

Several evaluations of these early efforts yielded
discouraging results.15 Sparks et al. found that
the early Massachusetts guidelines were poorly
conceived, poorly developed, and not effectively
implemented.16

In its comprehensive assessment of the development
and impact of voluntary/advisory guidelines, the
National Center for State Courts found
difficulties in their implementation in Denver,
Chicago, Newark, and Phoenix.17 Specifically, the
researchers found major methodological and
analytical defects in the development of the
Denver guidelines. Furthermore, the Denver
guidelines were found to have exerted little
influence on judicial decisions on whether to
incarcerate, and compliance rates for lengths of
prison terms were disappointingly low. The
researchers drew the following conclusions:

The various measures employed . . . converge on a
single conclusion: sentencing guidelines have had
no detectable, objectively manifested impact on
the exercise of judicial sentencing discretion.18

These disappointing results were often linked to
implementation difficulties and the lack of
enforcement. In some instances, insufficient time
was allowed for the guidelines to take hold. More
important, the guidelines were voluntary; judges
could simply ignore them. Nonetheless, they were
an important step in the sentencing reform process
because they helped change sentencing patterns
from indeterminate to determinate. By 1994 six
States (Arkansas, Louisiana, Maryland, Michigan,
Virginia, and Wisconsin) had adopted
voluntary/advisory guidelines. Several of these
States were the early experimenters with
voluntary/advisory guidelines. However, a review
of all the major studies conducted on
voluntary/advisory guidelines reveals low
compliance by judges and, hence, little impact on
reducing disparity.19

Although all voluntary/advisory guideline systems
are not alike, an example of voluntary/advisory
guidelines can be found in Virginia. The Virginia
guidelines were not legally mandated as
presumptive sentencing guidelines are. Likewise,
there was no enabling legislation that set up a
sentencing commission to develop the guidelines.
Rather, they were based on historical sentencing
practices (descriptive versus prescriptive). The
process of guidelines development in Virginia
exemplifies descriptive guideline development. 

In 1982, then Governor Charles Robb appointed a
task force to examine statewide sentencing
practices and to recommend any necessary changes.
Between 1983 and 1988, the task force, or Judicial
Sentencing Guidelines Committee (JSGC), which is
accountable to the Judicial Conference of Virginia
(JCV), developed a set of voluntary/advisory
guidelines. The guidelines were descriptive: that
is, they were developed through statistical
analyses of past sentencing practices and then
tested in six pilot districts for 1 year, 1988-
1989. The JSGC determined the guidelines to be
effective and favorably received by judges in the
six pilot districts and, thus, voted to expand
their use throughout the State.

In 1990, the State legislature commended the JCV
for its work and urged adoption of the guidelines.
A permanent JSGC (composed of seven circuit court
judges) was formed in 1990. The committee decided
to base the statewide guidelines on sentencing
practices between 1985 and 1989, agreeing that the
guidelines should be revised at 1-year intervals
in accord with analyses of the previous year's
sentencing practices.

The primary purpose of the guidelines was the
establishment of rational and consistent
sentencing standards that reduce unwarranted
sentencing disparity. However, Virginia's
guidelines were not intended to affect prison
populations, change the severity of sentences,
change the philosophy of sentencing, or restrict
judicial discretion. Instead, they were intended
to provide a historical picture, descriptive of
past sentencing practices for a variety of
offenses, to assist judges in decisionmaking.

Virginia's guidelines do not rank offenses
according to a severity scale and do not base
recommendations on a matrix of offense severity
and criminal history scores. The guidelines
consist of separate scoring schemes, factors to be
considered, and sentence recommendations for eight
categories of offenses: homicide, assault,
robbery, sexual assault, burglary, larceny, drugs,
and fraud. The guidelines are bifurcated in
structure to reflect two sets of decisions: (1)
whether to imprison an individual and for how long
and (2) whether those not imprisoned should go to
a local jail for a certain period of time or
receive probation.

In developing the guidelines, the Virginia
committee did not consider any factors influencing
sentences that were deemed inappropriate (e.g.,
race, gender, or age). Therefore, Virginia's model
is not purely descriptive because it specifically
eliminates from the guidelines certain factors
that historically influenced sentencing in
Virginia.

The Virginia court has significant power to decide
who should be incarcerated because that option is
always available. In all categories of the
Virginia matrices, the court is given a range of
sentences based on the past 5 years of sentencing
practices. The guideline ranges are updated every
year to reflect the most recent sentencing
patterns by discarding the oldest data and
replacing them with current data.

Because Virginia's guidelines were implemented as
recently as 1991, there has been no major research
on the degree to which they have reduced disparity
or how they are used in court decisionmaking.
However, the 1989 report on the test guidelines in
the six pilot districts indicated that the
guidelines foster greater uniformity and less
unwarranted disparity and that judges comply with
guideline recommendations at a rate of 78 percent.
It should be noted that acceptance of the overall
policy was not the same as compliance with a
guideline recommendation. Because departures
(i.e., exceptions) may be permitted or encouraged
by the general policy, a 78-percent rate of
compliance with the suggested decision outcome may
indicate a 100-percent acceptance of policy.

Virginia's new Governor, George Allen, established
a commission in 1994 to study the abolition of
parole and the development of a presumptive
sentencing system. The State legislature
established a committee to make recommendations on
the appropriate role of parole and presumptive
sentencing guidelines. In addition, legislation
that radically alters the voluntary guideline
structure has been adopted. Parole was abolished
and the existing sentencing policy modified to
greatly lengthen the period of imprisonment.
Virginia's recent reforms highlight the volatile
nature of sentencing policy.

Determinate Sentencing

The term "determinate sentencing" is generally
used to refer to the sentencing reforms of the
late 1970's. In those reforms, the legislatures of
California, Illinois, Indiana, and Maine abolished
the parole release decision and replaced the
indeterminate penalty structure with a fixed
(flat) sentence that could be reduced by a
significant good-time provision. The only State
that has adopted a true determinate sentencing
system since 1980 is Arizona, which enacted a
"truth in sentencing law" on January 1, 1994.
These five States have retained their determinate
sentencing models, although no other States have
adopted such a structured sentencing scheme.

Determinate sentencing was spurred initially by
two opposing political forces. Some people
attacked the disparities of unfettered judicial
discretion that resulted in sentencing biases
against the socially disadvantaged.20 On the other
hand, the advocates of "law and order" and "get
tough" crime policies viewed unfettered judicial
discretion as too lenient. Nelson argues "that
this twofold drive helps determine what type of
determinate sentencing system, if any, will
develop in a given jurisdiction since the
resultant sentencing will largely be a product of
both drives."21

In three of the States (California, Illinois, and
Indiana), the legislators provided presumptive
ranges of confinement. But those in Illinois and
Indiana were so wide that they provided the court
with extensive discretion on sentence length. For
many offenses, there was no presumptive lead as to
whether the sentence should be for, or against,
incarceration. Thus, courts were left with
extensive discretion in deciding both whether to
incarcerate and the length of incarceration. It is
arguable that the discretion attacked in these
reforms was mainly that of parole boards, and that
the discretion lost by parole boards was largely
shifted to the courts or to the prosecutors who
control the charging function.22

The Illinois law provides a clear example of these
points. The legislation, which was passed on July
1, 1977, created six major classes of offenses for
which convicted felons could be sentenced to
prison: Class M (murder); Class X (robbery,
assault, rape, and kidnaping); Class 1 (attempted
robbery, rape, and drug sale); Classes 2, 3, and
4, which represent property crimes (burglary,
theft, and fraud); drug offenses (possession and
sale); and simple robbery. Class X was the most
significant sentencing category because it
mandated judges to sentence offenders convicted of
these crimes to prison for anywhere from 6 to 30
years, with possible enhancements of 30 to 60
years. Offenders sentenced for these offenses
began serving longer terms under the new law,
despite the fact that inmates also were being
awarded increased amounts of statutory good-time
credit (day-for-day statutory good time, as
opposed to the previous one-third statutory
good-time system). The parole board's authority to
grant release was abolished, while postrelease
supervision was retained.

A determinate sentencing system may be based on a
"just deserts" concept, a utilitarian or crime
control model, or some combination of sentencing
goals. A purely utilitarian (or crime control)
model of punishment (e.g., concerned with
recidivism, incapacitation, and deterrence)
focuses little on the crime the offender committed
but demands longer sentences for crimes in which
consequences associated with incarceration are of
most concern.23 On the other hand, a pure "just
deserts" model emphasizes the criminal act itself
to the exclusion of crime control goals.24
California provides a well-known example of the
evolution of a determinate sentencing model.
Although numerous subsequent amendments have
changed the statute considerably, California
initially adopted a "just deserts" sentencing
model. The enabling legislation clearly stated
that the "purpose of imprisonment is
punishment."25 The legislature determined that
offenses should be placed into four categories of
crimes on the basis of general severity; then
presumptive lengths of incarceration were
established for each category. In addition, for
each presumptive incarceration length, the
legislature provided a range for aggravating and
mitigating circumstances. Data show the initial
ranges provided for the four classifications and
the ranges for aggravation and mitigation under
California's determinate sentencing law. These
ranges apply only if the court selects
incarceration.

The California model and the State's experience in
the first few years of its administration helped
to reverse the direction of the development of
structured sentencing reform models. The initial
determinate sentencing law was projected to have
no impact on prison population growth. However,
Messinger and Johnson report that during the first
year, there were 43 amendments to the legislation,
all of which increased the severity of sentences
and, thus, the demand for prison space.26 The
large number of amendments to the original law,
they interpreted, was the result of the
legislature's attempts to control sentencing. In
Messinger and Johnson's view, California set an
example of how not to develop structured
sentencing in which the results are strongly
influenced by the politics of crime. In a 1983
evaluation of the reform's impact, Casper and
Brereton concluded that the amended legislation,
as intended, increased the likelihood of
incarceration and resulted in a phenomenal growth
in prison populations.27

Sentencing Commissions and Presumptive Sentencing
Guidelines

By the early 1980's, States began to experiment
with approaches using sentencing guidelines
developed by sentencing commissions. These models
differed from determinate and voluntary/advisory
guidelines experiments in three respects. First,
the guidelines were not developed by the
legislature but by a sentencing commission that
often represented a diverse array of criminal
justice and sometimes private citizen interests.
Second, the guidelines were explicit and highly
structured, relying on a quantitative scoring
instrument. Third, the guidelines were not
voluntary/advisory. Judges had to adhere to the
sentencing system or provide a written rationale
for departures.

As in the move to determinate sentencing and
voluntary/advisory guidelines, the driving forces
stimulating presumptive sentencing guidelines were
issues of fairness (including disparity,
certainty, and proportionality) and prison
crowding. These concerns provided the impetus for
States to adopt guidelines, replace indeterminate
sentencing with determinate sentencing, and
abolish or curtail discretionary parole release.

The first four States to adopt presumptive
sentencing guideline systems were Minnesota
(1980), Pennsylvania (1982), Washington (1983),
and Florida (1983). The Minnesota model in
particular, with its focus on controlling prison
population growth, has often been cited as a
successful example of controlling disparity and
rising corrections costs through sentencing
guidelines. The American Bar Association has
endorsed sentencing commission-based guidelines
through its Criminal Justice Standards Committee's
Sentencing Alternatives and Procedures (adopted by
the ABA House of Delegates). In making such an
endorsement, the Standards Committee relied
"heavily upon the system of presumptive/ordinary
offender sentencing pioneered in a guidelines
system in Minnesota."28

The Federal Government and 16 States have
established commission-based sentencing
guidelines. According to the definitions presented
in Chapter 1, 10 of the 16 States can be
classified as using presumptive sentencing
guidelines. The remaining six have
voluntary/advisory guideline models.

With the exception of mandatory minimum sentencing
provisions, sentencing guidelines authored by
legislatively created sentencing commissions are
now the most popular form of structured
sentencing. The next chapter provides a current
listing of those States that have adopted
guidelines, as well as other State sentencing
structures such as determinate sentencing or
indeterminate sentencing. Chapters 4 and 5 present
detailed descriptions of presumptive sentencing
guidelines and the commissions that have written
them.

------------------------------

Notes

1. Walker, S. Taming the System: The Control of
Discretion in Criminal Justice, 1950-1990. Oxford:
Oxford University Press. 1993, p. 4.

2. Sentencing involves the totality of the
sentences imposed and the sentences served as
carried out by administrative agencies, parole
boards, and prison officials.

3. Shane-DuBow, S.A., A.P. Brown, and E. Olsen.
Sentencing Reform in the U.S.: History, Content
and Effect. Washington, DC: U.S. Department of
Justice. 1985.

4. Note 3, p. 5.

5. Dershowitz, A. "Criminal Sentencing in the
United States: A Historical and Conceptual
Overview." Annals of the American Academy of
Political and Social Science 423(1976), pp. 117-
132.

6. American Friends Service Committee. Struggle
for Justice: A Report on Crime and Punishment in
America. New York: Wang. 1971.

7. Twentieth Century Fund Task Force on Criminal
Sentencing. Fair and Certain Punishment. New York:
McGraw-Hill. 1976.

8. von Hirsch, A. Doing Justice: The Choice of
Punishments. New York: Hill & Wang. 1976.

9.  Frankel, M.E. Criminal Sentences: Law Without
Order. New York: Hill & Wang. 1972, p. 1.

10. Ibid., p. 69.

11. Ibid., p. 76.

12. Wilkins, L.T., J.M. Kress, D.M. Gottfredson, J
Calpin, and A.M. Gelman. Sentencing Guidelines:
Structuring Judicial Discretion--Report on
Feasibility Study. Washington, DC: U.S. Department
of Justice. 1978.

13. Tonry, M. "Structured Sentencing." In Crime
and Justice: A Review of the Research, vol. 10,
ed. M. Tonry and N. Morris. Chicago: University of
Chicago Press. 1988. See also Note 12 and Kress,
M. Prescription for Justice: The Theory and
Practice of Sentencing Guidelines. Cambridge:
Ballinger. 1980.

14. Ibid. See also Note 3.

15. Cohen, J., and J. Helland. "Methodology for
Evaluating the Impact of Sentencing Guidelines."
Unpublished paper. Pittsburgh: Urban Systems
Institute, School of Urban and Public Affairs,
Carnegie-Mellon University. 1982. See also Carrow,
D.M., J. Feins, B.N.W. Lee, and L. Olinger.
Guidelines Without Force: An Evaluation of the
Multi-jurisdictional Sentencing Guidelines Field
Test. Cambridge: Abt. 1985. See also Sparks, R.F.,
B.A. Stecher, J. Albanese, and P.L. Shelly.
Stumbling Toward Justice: Some Overlooked Research
and Policy Questions About Statewide Sentencing
Guidelines. Report to the National Institute of
Justice, U.S. Department of Justice. Washington,
DC: U.S. Government Printing Office. 1982. See
also Rich, W.D., L.P. Sutton, T.R. Clear, and M.J.
Saks. Sentencing by Mathematics: An Evaluation of
the Early Attempts to Develop Sentencing
Guidelines. Williamsburg, VA: National Center for
State Courts. 1982.

16. Sparks, R.F., B.A. Stecher, J. Albanese, and
P.L. Shelly. Stumbling Toward Justice: Some
Overlooked Research and Policy Questions About
Statewide Sentencing Guidelines. Report to the
National Institute of Justice, U.S. Department of
Justice. Washington, DC: U.S. Government Printing
Office. 1982.

17. Rich, W.D., L.P. Sutton, T.R. Clear, and M.J.
Saks. Sentencing by Mathematics: An Evaluation of
the Early Attempts to Develop Sentencing
Guidelines. Williamsburg, VA: National Center for
State Courts. 1982.

18. Ibid., p. xxiv.

19. Cohen, J., and M.H. Tonry. "Sentencing Reforms
and Their Impacts." In Research on Sentencing: The
Search for Reform, ed. A. Blumstein, J. Cohen,
S.E. Martin, and M.H. Tonry, pp. 305-459.
Washington, DC: National Academy Press. 1983.

20. Nelson, B. "The Minnesota Sentencing
Guidelines: The Effects of Determinate Sentencing
on Disparities in Sentencing Decisions." Law and
Inequality 10(3)(1992), p. 217. See also Frankel,
M.E. Struggle for Justice. New York: Hill & Wang.
1971. See also Messinger, S.L., and P.D. Johnson.
California's Determinate Sentence Statute: History
and Issues in Determinate Sentencing: Reform or
Regression? Washington, DC: U.S. Department of
Justice, Office of Justice Programs, National
Institute of Justice. 1978.

21. Ibid.

22. Alschuler, A.W. "Departures and Plea
Agreements Under the Sentencing Guidelines."
Federal Rules Decision 117(1988), pp. 459-476.

23. Note 19.

24. Note 23. See also von Hirsch, A. "The Politics
of Just Deserts." Canada Journal of Criminology
32(1990), p. 397.

25. California Penal Code, Section 1170(a)(1).

26. Messinger, S.L., and P.D. Johnson.
California's Determinate Sentence Statute. History
and Issues in Determinate Sentencing: Reform or
Regression? Washington, DC: U.S. Department of
Justice, Office of Justice Programs, National
Institute of Justice. 1978.

27. Casper, J., and D. Brereton. "Evaluating
Criminal Justice Reforms." Law and Society
18(1984), pp. 121-144.

28. American Bar Association. Standards for
Criminal Justice--Sentencing Alternatives and
Procedures. 3d ed. Boston: Little, Brown &
Company. 1993.

------------------------------

Chapter 3

An Overview of Current Sentencing Practices in the
United States

This chapter describes the results of a national
survey of sentencing practices in the United
States conducted in late 1993 and early 1994. The
survey represents the first major national
assessment of existing sentencing practices.

Information for this chapter was also culled from
several other data sources besides the national
survey. The Pennsylvania Commission on Sentencing
maintains an extensive library containing
documents on sentencing practices in a number of
the States. The United States Sentencing
Commission (USSC) recently conducted a national
survey on mandatory sentencing for drug offenses.
Followup telephone calls were made to some
individuals who have the most detailed knowledge
of their States' sentencing practices. Finally,
information was supplemented by site visits to
some States. It should be noted that this chapter
summarizes some very complex State sentencing
statutes.

A primary objective of the national survey was to
classify States according to sentencing structure.
This classification required two steps:
establishing operational definitions of sentencing
practices (see Chapter 1) and surveying State
respondents to determine how many of these
sentencing practice types applied to their States.

Data show how the responding States classified
themselves according to the definitions outlined
in Chapter 1 for determinate, indeterminate,
and/or sentencing guideline structures. Including
the District of Columbia, 29 States reported
having indeterminate sentencing. Some form of
determinate sentencing was indicated by 20 States,
and 16 States have sentencing guidelines. All
States reported having a variety of mandatory
minimum incarceration sentencing.

Data reflect the fact that State respondents could
check all the sentencing practices that applied to
their States. (Fourteen respondents checked
multiple sentencing practices, excluding mandatory
sentencing.) For example, some States have
determinate sentencing for one class of offenses
and indeterminate sentencing for another class. A
respondent also may have checked both
indeterminate sentencing and presumptive
sentencing guidelines, indicating that the State
uses guidelines within an indeterminate sentencing
structure. Followup contacts with several
respondents revealed (1) that they checked off
presumptive sentencing guidelines but meant to
check presumptive sentencing (guidance or
presumptions that must be considered by the court
in sentencing) or (2) that only some judicial
districts within the State used informal
guidelines.

Data summarize the primary forms of sentencing
practices in the United States on the basis of
definitions presented in Chapter 1. States were
classified according to their primary sentencing
structure on the basis of all of the information
received from the survey and followup contacts.
For example, a State with sentencing guidelines
and indeterminate sentencing was placed in the
sentencing guidelines category; States with both
indeterminate and determinate features--such as
Alabama, Alaska, and Ohio--were classified as
indeterminate if most inmates are sentenced under
the indeterminate structure. Including the
District of Columbia, 30 States were therefore
classified as indeterminate sentencing types; 5
States were classified as determinate sentencing
types; and 16 States (including North Carolina,
whose guidelines became effective in October 1994)
were classified as sentencing guidelines types.

Mandatory Minimum Incarceration Sentences in the
United States

The national survey asked questions regarding
mandatory minimum sentences: for example, if
mandatory sentences existed, and if so, for which
offenses. States were also asked to provide more
detailed information on any mandatory minimum
incarceration sentences for cases that involve
controlled substances: drug type, amount of drug,
and penalty for which the mandatory sentence
applies. States also were asked to submit copies
of statutes concerning all mandatory minimum
sentences.

Collecting data on mandatory minimum sentences was
difficult. Originally, data were to be collected
from States with mandatory minimum periods of
incarceration for selected crimes; however,
several States initially reported no mandatory
sentences because (1) the sentences exist in
statute but are not used, (2) an offender may
receive the mandatory sentence but is still
eligible for early release via good time and
parole, or (3) the sentence is mandatory only
because incarceration cannot be suspended. It was
decided to include all these possibilities in the
presentation of data.

Data summarize the results of the survey on
mandatory minimum sentencing. All States have some
form of mandatory sentencing provisions; the most
popular application of mandatory sentencing is for
repeat or habitual offenders (41 States) and for
crimes accompanied by the possession of a deadly
weapon (41 States).

Survey responses indicate that Hawaii, Kansas,
Kentucky, Louisiana, Maine, Nebraska, New
Hampshire, New Mexico, New York, Ohio, Oklahoma,
Oregon, Tennessee, Texas, Utah, Vermont, Virginia,
Washington, and Wyoming lack any drug mandatory
minimums. Data indicate that mandatory minimum sentences
are imposed for many offenses in Colorado, Illinois,
Pennsylvania, Rhode Island, and Wisconsin.

Summarizing all the information collected on
mandatory minimum sentences for drug offenses is
impossible because the types of drugs, amounts
required for the mandatory sentences to apply, and
penalties vary widely. Approximately 20 States
have implemented mandatory minimum sentences for
drug sales to minors and sales within a specified
distance (usually 1,000 feet) of a school. One
survey respondent stated that the mandatory
minimum does not apply if the offender is shown to
be a "drug-dependent person."

Currency of State Criminal Codes

States were asked to report when their criminal
codes were most recently revised or rewritten to
change the elements of offenses. Most States have
not significantly revised their codes since the
1970's. This question proved difficult to answer
for States in which revision of the criminal code
is an ongoing process, with yearly changes taking
place. Several large States reported that their
codes had not been revised for some time: since
1872 for California, 1935 for Michigan, and 1967
for New York. Only nine States reported major
revisions in the 1990's, and six States reported
major revisions in the 1980's.

States were also asked to indicate whether any
commissions, task forces, or committees had
recently been formed to study and/or make
recommendations to change State sentencing
practices. The following States are in the midst
of studying changes:

o Alaska established a sentencing commission in
1990, charging it with addressing sentencing
reform and prison overcrowding. The commission
released a report in December 1992 recommending
changes in areas such as the use of alternative
punishments, parole, and inmate classification.

o Hawaii formed a committee to review any needed
changes to the penal code and to report to the
legislature.

o Iowa established the Intermediate Crime
Sanctions Task Force to recommend sentencing
reforms.

o The Kentucky Governor's Commission on Quality
and Efficiency has recommended the implementation
of sentencing guidelines.

o Massachusetts is considering a proposal to adopt
a determinate sentencing structure, has recently
created a sentencing commission, and is
considering sentencing guidelines.

o Michigan established a sentencing commission to
study the feasibility of developing sentencing
guidelines. A specific goal of the commission is
to further the concept of "truth in sentencing."

o Missouri established a sentencing commission to
study the State's sentencing practices and
identify sentencing disparity.

o Ohio established a sentencing commission in 1991
to study sentencing laws and correctional
resources. A legislative bill was introduced to
eliminate parole and good time and to create flat
sentences (with a series of presumptions).

o Oklahoma is considering a determinate "truth in
sentencing" guideline structure. A commission has
been established to develop recommendations for
the legislature by 1995.

Use of Parole and Good Time

The survey asked questions about discretionary
release from correctional facilities and the use
of good time in these facilities. In all, 48
States reported having parole or some other form
of postrelease supervision, and 48 States reported
having good time for inmates at the local and/or
State levels. Hawaii, Pennsylvania, and Utah
reported not having good-time provisions for
inmates. Only Arizona, Florida, and Maine lack
parole supervision (except for inmates who still
fall under the old sentencing structures, or for a
small number of offenders sentenced to life with
the possibility of parole). However, only Maine
and the Federal system have apparently abolished
parole boards and all forms of postrelease
supervision for all offenders.

In some States, such as California, Delaware,
Illinois, and Oregon, parole in its purest sense
has been eliminated, replaced by some form of
postrelease supervision that is not called parole.

Sentencing Commissions in the United States

Information on States that have adopted sentencing
guidelines and have sentencing commissions is
summarized in data. It should be noted that use of
the term "commission" is a generalization;
entities in some States may have other names, such
as "committee." In 10 of the 16 States having
sentencing commissions and sentencing guidelines,
the guidelines are presumptive; the other 6 States
(Arkansas, Louisiana, Maryland, Michigan,
Virginia, and Wisconsin) have voluntary/advisory
guidelines.

In addition to the 16 States listed, at least 5
other States (Kentucky, Massachusetts, Missouri,
Ohio, and Oklahoma) have guidelines and/or a
sentencing commission under study. Although it has
voluntary/advisory guidelines, Michigan has
established a sentencing commission to further
study its sentencing practices and to propose a
more structured sentencing scheme. In South
Carolina, the status of guidelines remains in
flux. Initial data indicated that the guideline
commission would cease to exist in June 1994 and
that guidelines would not be implemented.

Although sentencing guidelines have been the
dominant form of sentencing reform during the past
two decades, it is also true that most States have
not adopted that sentencing structure, and several
others have tried but failed to implement
guidelines. Some of the factors that impede or
facilitate a State's ability to adopt sentencing
guidelines are addressed in the following two
chapters.

------------------------------

Chapter 4

Sentencing Commission Structures and Their
Mandates

The sentencing commission's sociopolitical
environment and legislative mandate strongly
influence its role, the quality of its guidelines,
and its ability to implement--and obtain
conformance to--its sentencing guidelines. For
purposes of discussion in this chapter, a
sentencing commission is a State agency that
issues guidelines for the sentencing court. The
purposes of the reform, the specific legislative
structure of the commission and the mandates
included in the enabling legislation, and the
political and legal context are examined in the
following pages.

The collection of information for this report
included the study of documents provided by all
the State guideline systems and the United States
Sentencing Commission (USSC). Visits were made to
Delaware, Kansas, Louisiana, Maryland, North
Carolina, South Carolina, Tennessee, Virginia, and
Washington. In these States, key individuals
involved in the development of the sentencing
guidelines were interviewed. Finally, where
guidelines have been implemented, available data
on the impact of the guidelines were reviewed.
However, because of the dynamic quality of
sentencing--sentencing commissions and sentencing
guidelines in particular--important changes
occurred constantly and material had to be updated
regularly. The classification of State sentencing
systems was simplified in areas such as the degree
of determinateness and the degree of
presumptiveness for purposes of presentation.
Therefore, some will disagree or argue that their
State system is more complex. However, to
communicate general trends to legislators and
others who may know little about sentencing, it
was necessary to simplify the discussion.

Purposes of Reform

States create sentencing commissions for many
reasons. Researchers found that the most
frequently cited reasons are to increase
sentencing fairness, to reduce unwarranted
disparity, to establish truth in sentencing, to
reduce or control prison crowding, and to
establish standards for appellate review of
sentences. These purposes are not all or
universally accepted, and the means used to
implement them vary among jurisdictions. The
purposes outlined by commissions influence nearly
every aspect of the guideline development process.
Therefore, each guideline system should be
evaluated against its stated goals. This section
describes the issues and the various approaches
that many States and the Federal Government have
taken in addressing their specific purposes.

Fairness and Sentencing Disparity

Fairness covers a number of issues that sentencing
reforms have addressed over the past 20 years.
Fairness refers to reducing unwarranted sentencing
disparity, making sentences commensurate with the
seriousness of offenses, and increasing certainty
and predictability.1 For purposes of this
discussion, certainty and predictability are
considered issues related to what is commonly
referred to as truth in sentencing, described in
the next subsection.

Although sentencing disparity is the primary
fairness concern, it is also difficult to define.
Generally, disparity is defined as different
sentencing of "similarly situated" offenders and
the similar sentencing of dissimilar offenders.
However, the meaning of "similarly situated" can
vary. For some it means that sentences should be
proportionate to the severity of the offense.2 For
others, it means that sentencing should focus on
"culpability" or the seriousness of the offense
considered with any prior record.3 Guidelines have
generally provided detailed measures of offense
severity and criminal history, relying on courts
to consider other relevant sentencing factors.

Proportionality is one of the most important
principles in establishing a fair and equitable
sentencing system. In setting sentences that are
proportional, two dimensions are considered:
ordinal proportionality, which refers to the
setting of punishments relative to the offenses,
and cardinal proportionality, which refers to the
"absolute severity levels . . . chosen to anchor
the penalty scale."4

Sentencing commissions generally begin drafting
guidelines by placing offenses into levels of
severity and then assigning penalties (prison,
intermediate punishment, or probation and sentence
lengths) to these severity levels. Commissions
therefore establish sentences proportionate to
each other (what von Hirsch refers to as ordinal
proportionality5). For example, if the sentencing
commission establishes a 2-year term of
incarceration for assault with serious bodily
injury and a 1-year term for assault with bodily
injury, the assault with serious bodily injury is
considered twice as severe as the assault with
bodily injury.

Cardinal proportionality, however, determines the
overall penalty structure. For example, the USSC
used the mandatory penalties established by
Congress as its benchmark. Consequently, the
overall scale of sentencing guidelines for Federal
drug sentences are the drug mandatory sentences
set by Congress.

Similarly, the State of Washington's Sentencing
Guidelines Commission (WSGC) chose its mandatory
sentences for violent offenses to establish their
most severe sentence recommendations. When
establishing other penalties, WSGC worked down
from these recommendations.

Truth in Sentencing

A recent theme of the structured sentencing reform
movement is truth in sentencing. Truth in
sentencing attacks sentencing models that allow
offenders to serve only a portion of their imposed
sentence. According to the U.S. Department of
Justice, the average sentence imposed in 1990 was
65 months, while the average time served in prison
was 22 months, or 34 percent of the sentence.6
Truth in sentencing is a legislative means of
restoring public confidence in their criminal
justice system by requiring offenders to serve
their full (or almost full) sentences. Such
legislation brings certainty and predictability to
sentencing.

Most truth in sentencing systems adopt several
essential ingredients. First, they generally
eliminate the indeterminate sentence, replacing it
with a determinate sentencing format. Second, the
sentence reflects the actual amount of time an
offender will serve, with very limited amounts of
good or earned time deducted from the sentence.
Third, the parole release decision is eliminated,
but postrelease supervision is usually retained.

Such a sentencing system increases certainty and
predictability for the duration of confinement.
However, in most such systems, the decision about
who will be incarcerated is less structured and
less predictable. The discussion of the California
and Illinois determinate sentencing systems in
Chapter 2 exemplifies the uncertainty of the
confinement decision under these determinate
sentencing systems.

When combined with statutorily enacted truth in
sentencing provisions, sentencing guideline
systems can reduce disparity and increase
certainty about the decision of incarceration.
Because sentencing commissions often concern
themselves with both correctional resources and
unwarranted sentencing disparity, they generally
address the length of incarceration and who is
incarcerated. Moreover, as sentencing guideline
systems evolve over time, they are focusing on the
vast array of intermediate punishments that States
are developing. Thus, incarceration is often being
exchanged for intermediate punishments such as
house arrest, intensive supervision, and drug
treatment.

Prison Crowding

Severe prison crowding stimulated the growth of
sentencing commissions and sentencing guidelines
in many States. The crisis of prison crowding
strains State budgets and requires States to
reassess their correctional resources. Several
States with guidelines indicated that the problem
of crowding became so severe that it drove the
creation of a sentencing commission and
capacity-linked sentencing guidelines. Who is
incarcerated and for how long was an issue not
only of fairness but also of economics.

Many State correctional systems are being
pressured to relieve prison crowding. In response,
some States have implemented emergency release
measures, accelerated parole release, and
instituted other methods to control inmate
populations. Moreover, States that have built
additional space and avoided court intervention
are facing skyrocketing correctional budgets.
State legislatures must deal with many demands on
extremely tight budgets. With correctional growth
taking an increasingly large share of State
budgets, legislators are looking for ways to
manage the growth of correctional populations and
thus the growth of the correctional budget.

Consequently, some States have turned to
commission-authored sentencing guidelines and the
reform of sentencing structures to control who
should go to prison and for how long. The
guideline systems offer the ability to project
future prison populations. Within the guidelines,
resource-sensitive policy choices can be made and,
if necessary, adjusted to manage expensive
correctional capacity. The experiences of
Minnesota, Oregon, and Washington are instructive
in that these States have developed guidelines to
manage who goes to prison and for how long. These
States can therefore anticipate future needs and
can focus prison resources on specific offenders,
thereby conserving prison resources and ensuring
space for violent offenders.

Overcrowding is not divorced from the issue of
fairness. Overcrowded prison populations can
create dangerous and unlawful environments for the
management and treatment of offenders. The
principles of fairness and humanity dictate that
offenders are provided a reasonable living
environment. Thus, both guideline and nonguideline
States have established capacity limits to reflect
fairness as well as economic concerns.

Sentencing Commission Structure, Mandates, and
Organization

Well-conceived enabling legislation is crucial for
the success of a sentencing commission and its
guidelines. First, the legislation identifies
participants in the development of the sentencing
guidelines (commission members). Second, it sets
forth the legal mandates for the commission such
as factors that must be considered in writing
guidelines. Third, it establishes the
implementation process and enforcement mechanism
of the guidelines. Finally, it communicates the
political agenda to the commission. In the
following section, these and other aspects of a
sentencing commission's structure and organization
are reviewed.

Commission Membership

Data identify States that have established
sentencing commissions, along with the membership
and size of each commission. These data illustrate
the range in commission size (from 7 on the United
States Sentencing Commission (USSC) to 28 in North
Carolina) and commission diversity. It should also
be noted that except for USSC, all of the State
sentencing commission members serve as part-time
members.

Commission membership and size reflect the
interests of a State in creating a commission and
the groups that are defined as significant in
writing sentencing guidelines. For example, on
Pennsylvania's 11-member sentencing commission,
which is not mandated to manage or consider prison
population size, corrections is not represented.
Judicial and legislative appointments represent
more than three-fourths of the commission's
membership. When Pennsylvania's commission was
created, its prisons were not suffering from
overcrowding: there was apparently no need for a
strong corrections presence. Because judges and
legislators were seen as the major sentencing
constituents, they played significant roles on the
commission.

Susan Martin juxtaposed Pennsylvania's judicially
and legislatively focused commission with
Minnesota's representation, which included private
citizens and correctional representation.7
According to Martin, this difference in membership
is a significant reason for Minnesota's
sensitivity to correctional resources, compared
with Pennsylvania's greater sensitivity to a
political agenda.

Kramer et al. assessed the impact of this
difference in their study of the policy choices.8
They applied the Minnesota, Pennsylvania, and
Washington guidelines to more than 8,000 felony
cases and found that Minnesota and Washington,
with their focus on correctional capacity,
established guidelines that preserved resources
for violent offenders in the State system.
Pennsylvania, with no capacity constraint, had a
more punitive guideline system overall. The
severity of Pennsylvania's sentencing was based
primarily on its more severe sentences for
nonviolent offenders. The most obvious reasons for
these differences were the legislative mandates
for the Minnesota and Washington sentencing
commissions to consider prison capacity and the
representation of correctional interests on their
State commissions. Pennsylvania had neither and
consequently wrote guidelines increasing certainty
and length of incarceration.9

The type and breadth of representation on State
sentencing commissions influence the quality of
the guidelines that are written and the ability of
a commission to ensure implementation of the
guidelines. For example, an interview with Robin
Lubitz of the North Carolina Sentencing and Policy
Advisory Commission revealed that its 28-member
commission was a tremendous asset in developing
support for both the concept of sentencing
guidelines and the guidelines themselves:

. . . although that size made it very difficult in
the beginning, when it coalesced it was a potent
force. So in retrospect if I were to do it again,
I would probably have a Commission about the same
size even though if you had asked me that a couple
of years ago I would have said it was much too big
to be effective.10

Oregon's guideline development process is another
example of how broad-based participation fostered
commitment to the guidelines among different
criminal justice factions. Kathleen Bogan, former
Executive Director of the Commission, indicated
that:

The strength of Oregon's approach was that all
three branches of government, including judges and
legislators, participated in the development of
the guidelines at the council level, while at the
same time avoiding any unconstitutional mix of the
three branches in a promulgating body, thus
broadening support for and understanding of the
guidelines.11

The Oregon sentencing commission consists of
judges, defense attorneys, prosecutors,
legislators, and criminal justice professionals
(including corrections officials). The Oregon
experience illustrates the principle that when
various groups contribute to the development of a
guideline system, members of those groups will
more likely take a proprietary and supportive
interest in the final product.

Sentencing Commission's Mandate and Purposes

There are several important themes adopted by 
legislatures as principles under which a commission 
is to operate that emerge, as do several principles 
to be fulfilled by commission guidelines. This section
presents some of these themes for States considering 
the creation of a commission or for States with 
commissions that may be considering revisions of 
their commissions' mandates.

Purpose of Sentence. Judges have historically been
responsible for passing sentences for diverse and
conflicting purposes, including to rehabilitate,
deter, incapacitate, restore, and punish. Many
commissions are mandated to accomplish these
purposes, whereas others prioritize them. For
example, Arkansas, a State that recently
implemented its guidelines, endorses all of these
purposes of sentencing in its legislation, but
leaves how to accomplish them to the guidelines
and to the discretion of the judge implementing
the guidelines. Clearly, many of these purposes of
sentencing contradict each other: if one takes
priority, the ability to accomplish another one is
diminished. For example, when a sentence is
intended to "punish an offender commensurate with
the nature and extent of the harm caused by the
offense, taking into account factors that may
diminish or increase an offender's culpability,"12
how can this punishment be consistent with
policies attempting to rehabilitate the offender?
Commensurate punishments may sometimes be
consistent with rehabilitative sentences; however,
more often than not, the sentence imposed to meet
a punishment goal will be inconsistent with a
sentence passed to rehabilitate an offender.

Minnesota's enabling legislation seems to
recognize the potential dissonance among the goals
of sentencing and sets forth a mandate stating
that "[D]evelopment of a rational and consistent
sentencing policy requires that the severity of
sanctions increase in direct proportion to
increases in the severity of criminal offenses and
the severity of criminal histories of convicted
felons."13 Although the reference to criminal
history might have spurred the commission to
develop an ineffective model, the commission used
this mandate to adopt a modified just-desert model
of sentencing.

Pennsylvania adopted guideline modifications whose
purposes vary depending on the severity of the
offense and the severity of a defendant's prior
record. Although Pennsylvania emphasizes
punishment overall, the commission prioritizes
other purposes that it has created in the
guidelines. About offenders receiving sentences
that call for relatively short terms of
incarceration or that allow for nonconfinement
options, the Pennsylvania commission states, "Many
[of them] . . . suffer from drug and/or alcohol
problems and the court should consider a treatment
component to address the rehabilitative needs of
such offenders."14

It should be noted that legislatures have failed
in most circumstances to prioritize the purposes
of sentencing; this failure has left the
commission with the difficult responsibility of
drafting sentencing guidelines that must address
conflicting purposes. In most cases (except in
Minnesota), commissions have therefore developed
guidelines using measures of offense severity and
criminal history, leaving to the courts the
discretion to aggravate and mitigate the sentence
as a means of considering rehabilitation and other
sentencing purposes.

Fairness and Certainty. According to data, many
States direct their sentencing commissions to make
sentences fair and certain. The concept of
fairness and certainty is inherent in the reform
of sentencing models such as the replacement of
indeterminate sentencing with determinate
sentencing. This reform usually involves the
elimination of parole release, or the allowance of
good time that varies from a 33-percent reduction
in Minnesota to a 15-percent reduction in the
Federal determinate sentencing guideline system.

The guideline system constructed by the commission
includes the ranges within the guidelines, the
standard on appeal when the court departs from the
guidelines, and the consideration of factors that
may allow the court to consider what social
scientists call extralegal factors, including
education level and employment status. Minnesota's
enabling legislation directed that "[S]entencing
should be neutral with respect to race, gender,
social, or economic status of convicted felons."15
The Federal system and Tennessee's enabling
legislation contained similar mandates. Other
States generally do not address these issues; the
consideration of factors such as education and
employment status, which may be indirectly
racially linked, are therefore allowed unless the
commission sets forth such a policy in the
guidelines.

Correctional Capacity Mandate

Many State legislatures direct their sentencing
commissions to consider prison capacity as they
develop guidelines. This fact suggests the
importance of prison crowding in the creation of
sentencing commissions. In many instances, the
enabling legislation requires the commission to
estimate the fiscal impact of the guidelines on
correctional resources.

Minnesota, Oregon, and Washington have enabling
legislation that requires guidelines to consider
correctional resources. Minnesota's legislation
set a precedent in 1978 by specifying that " . . .
the commission shall take into substantial
consideration correctional resources . . . " and
Oregon's legislation states that "factors relevant
to appropriate sentencing include . . . effective
capacity of State and local corrections
facilities. . . . "16

Washington was specifically mandated to make
"frugal use of the state's resources." Its
enabling legislation requires (1) the sentencing
commission to study State correctional capacity,
projecting the impact of guidelines on that
capacity; and (2) the commission to prepare
alternative sentence recommendations that do not
exceed capacity (if guidelines are projected to
exceed prison capacity). Furthermore, the
legislation enables Washington's governor to
declare a state of emergency regarding State
prison crowding and to call the sentencing
commission into emergency meetings to deal with
the crowding situation.

The issue of capacity restraint is important for
limiting the severity of sanctions (number
incarcerated and length). Susan Martin's research
on the guideline process in Minnesota and
Pennsylvania concludes that Minnesota's adoption
of a capacity agenda imposed reasonable
restrictions on the ability of the sentencing
commission to rely on imprisonment as a sentencing
option and a foil to critics who pushed for
greater severity. Martin argued that the Minnesota
Commission created a rationale for reasonable
restraint on the capacity to punish.17 On the
other hand, Pennsylvania, acting without a prison
capacity limit on its guidelines, struggled to
counter arguments for harsher penalties.18

Method of Adoption

The method of adopting guidelines is important
because it defines the final author of the
guidelines and how strictly the guidelines are to
be applied. There are three basic approaches to
adopting guidelines. The first approach entails
creating a commission mandated to draft guidelines
that must be submitted in bill form to the
legislature. For example, in Washington the
legislature may adopt the guidelines as submitted,
reject them, or amend them.

The second approach is to delegate the commission
to write the guidelines that become law even
without further action on the part of the
legislature. For example, in Pennsylvania 90 days
after guidelines are submitted to the legislature,
they become law unless a concurrent resolution to
reject is passed.

A third approach is the use of administrative
rules or administrative order. Wisconsin's
guidelines, enabled in bill form and legislated,
are adopted through administrative rules,
promulgated by the commission, and approved by the
legislature. Delaware's guidelines, however, are
issued by an administrative order from the Supreme
Court.

Each approach has advantages and disadvantages.
Guidelines legislatively passed in bill form
become law and obtain the standing of law. The
major concern with such a process is that the
legislature will either fail to act on the bill or
will amend it during its passage. For example, New
York's sentencing commission's guidelines were
submitted in bill form but were never passed by
the legislature; the commission's funding was
eventually discontinued, causing its
dissolution.19 Some blame such failures primarily
on the commission's inability to obtain commitment
to its guidelines.20 More recently, Tonry has
recognized the political problems facing
commissions.21

The political advantages of legislatively enacted
guidelines result from the explicit support of the
legislature and the governor as an outgrowth of
direct legislative action. Legislative enactment
dissolves any constitutional concerns such as
those involving judicial participation in a
legislative body (as in Pennsylvania) or
delegation of authority by the Congress to a
commission whose members are all appointed by the
President (as in USSC).22 Furthermore, appellate
courts reviewing sentencing under legislatively
adopted guidelines may be more likely to review
sentences on substantive (and not just procedural)
issues, although this is not yet established.23

By contrast, under the "adopted unless rejected"
approach such as exists in Pennsylvania,
guidelines are enacted by the legislature's
failure to reject them. Although such commissions
are delegated much more power, the guidelines may
have less standing under appellate review, and
there may be constitutional concerns with
legislative delegation to a commission whose
members come from the judiciary and are appointed
by the governor.

Implementation through administrative rules or
orders also has advantages and disadvantages.
Delaware, a State whose guidelines are issued
through administrative order by its Supreme Court,
finds that this process allows substantial
flexibility. Implementation of and amendments to
any recommendations are possible within a
relatively short time, and amendments are not as
likely to be rejected or altered by the Supreme
Court. However, sentences imposed under guidelines
issued by administrative order generally are not
appealable; the guidelines are therefore merely
voluntary.

The choice as to which model to follow may reflect
the willingness of legislatures to delegate
authority and/or to become more significantly
involved in establishing sentences. North
Carolina, whose guidelines are submitted in bill
form, has a tradition of strong legislative
control. Its legislature was averse to delegating
broad-based power to the sentencing commission.24
However, legislative enactment risks the passage
of amendments to the guidelines or failure to
implement them. In New York, the legislature
thwarted the guideline movement by failing to pass
proposed guidelines.25 Such occurrences are rare
but demonstrate the risks involved in requiring
legislative enactment.

The most common approach is to require the
adoption of guidelines in bill form. It should be
noted that Florida moved from a "failure to
reject" approach to legislatively adopting its
guidelines. The State of Washington, on the other
hand, has researched changing its approach from
legislative adoption to the failure to reject
approach.

Financial Support

Strong legal and broad-based political support are
important aspects of the ability of a sentencing
commission to write guidelines. However, it is
essential that adequate financial support be
obtained for a commission to study past sentencing
practices in the State; study what other States
have accomplished; prepare reports and proposals
for the commission to consider; pay for the
commission to meet regularly and hire consultants
when necessary; provide ongoing feedback to the
court and other governmental agencies; monitor and
evaluate the impact of guidelines; and conduct
other basic and applied research on a large
variety of sentencing issues.

Cost varies considerably among States, depending
on commission needs. The annual costs for States
range between $250,000 and $650,000. If
insufficient resources are provided for a
commission's work, the risk of failure increases.
The commission needs independence to hire adequate
staff, to pay for travel, and to support other
basic functions and activities. It is crucial that
the commission's ongoing functions of monitoring
guidelines, revising guidelines, and assessing the
impact of legislation and other functions taken on
as part of its sentencing function be fully
considered and that adequate funding be provided.

As a side note, a number of commissions that have
successfully implemented guidelines have realized
increases in budget and in staff size in the
post-implementation years. These increases are the
result of continually increasing responsibilities
placed on the commissions by the legislature and
the cost of monitoring and evaluating guidelines.

Commission Support Staff Organization

The size and composition of staffs supporting the
work of sentencing commissions is relatively
similar among States. USSC is the one exception to
this rule. In 1991 USSC had 100 full-time staff
and an appropriation close to $8.5 million. State
sentencing commissions have implemented guidelines
systems with 3 to 22 full-time staff members. Most
States have had between five and seven full-time
staff members during guideline development and
implementation stages. Washington and Pennsylvania
initially had five full-time and one half-time
staff members, and Minnesota had seven. More
recently, North Carolina has been operating with a
staff of seven.

Staff composition in the States has been heavily
weighted toward social science researchers.26
Staffs are generally composed of an executive
director, a policy director, a research director,
an administrative assistant, and a secretary.
Additionally, States have hired research
associates (usually at least one with statistical
experience) and data coders/input operators to
supplement research efforts.

Generally, commission staffs can be called upon to
perform any of the following functions: designing
and implementing a data collection system;
providing information on the status of sentencing
patterns; projecting the impact of any changes
that guidelines might have on current trends;
drafting guideline policies; monitoring appellate
court decisions; conducting training and education
seminars related to the guidelines; answering
questions over the telephone on guideline
application issues; and preparing meeting
materials for the commission. Typically, at least
one staff member maintains regular contact with
legislators and legislative staff members.

Commission Meetings

The frequency with which commissions meet varies
among States. In the initial stages of guidelines
development, meetings are held much more
frequently than after implementation. In fact, it
is not uncommon in the early drafting stages for
commission members to spend evenings, weekends,
and multiple days per week in meetings.

Some States have defined the minimum frequency for
meetings in their enabling legislation. For
example, in Arkansas and Pennsylvania, the
enabling legislation dictates that the commission
meet at least quarterly. After the initial stages,
some States have regularly scheduled meetings. For
example, the State of Washington has scheduled
standing meetings for the full commission for the
second Friday of the month; to cancel these
meetings, they must be taken off the schedule.

Adequate travel funds must be budgeted to support
the frequent meetings and overnight stays required
for a commission to meet its deadlines.

Guideline Implementation

The power of a commission to implement and monitor
sentencing varies according to its enabling
legislation. However, the enabling legislation
should give a commission the authority to train
judges, prosecuting attorneys, defense attorneys,
probation officers, and others in the sentencing
process.

Strong enabling legislation also authorizes
commissions to establish statistical monitoring
systems. A statistical monitoring system allows a
commission to assess the impact and quality of
guideline implementation and to identify areas
that need revision. For example, a commission may
depend on the courts to accurately interpret the
guidelines and to review justifications for
departures from the guidelines. ABA standards
state that the commission "should also be charged
with responsibility to collect, evaluate and
disseminate information regarding sentences
imposed and carried out within the
jurisdiction."27

Guideline Enforcement

The presumptiveness of guidelines ultimately stems
from the process by which sentences are reviewed.
Without an enforcement mechanism, guidelines are
merely voluntary and so may have little impact on
changing sentencing practices. The common
procedure is to provide for appellate review, with
the review to be initiated by either the defense
or the prosecution.

The term "presumptive" is often used to describe
guideline systems that rely on appellate review as
an enforcement mechanism. Guidelines (such as
those for Arkansas) that allow for no review are
referred to as voluntary: The guidelines must be
considered, but judges are free to depart without
challenge. Rather than a dichotomy, this situation
is more of a continuum from voluntary to very
presumptive. The degree of presumptiveness is
based on whether some form of appellate review
exists and, if so, what standards the courts are
held to on appellate review.

Little research on or discussion of this issue has
occurred, despite the hope that guidelines would
stimulate a common law of sentencing. However, the
works of McCloskey28 and Del Sole29 offer some
information. The least presumptive (voluntary)
form of guidelines would resemble the guidelines
of Arkansas and Virginia, which do not allow
appellate review of sentences.

In States with some form of review, two factors
affect the presumptiveness of guidelines. One of
the most significant factors is the standard for
departure that is established in the statutory
mandate. Enabling legislation might specify
"unreasonable" sentences as those that warrant a
judge's departure from sentencing guidelines, as
in Pennsylvania; or legislation might define a
much higher standard, such as "clear and
convincing" reasons for departure, as in
Minnesota. The second factor is the interpretation
that the appellate courts place on the terms.
Obviously, the higher the standard, the greater
the likelihood that the appellate courts will hold
the lower court more accountable for departures.
Similarly, the lower the standard, the greater the
likelihood that the appellate court will allow
greater latitude in departures from guidelines.

During the 12 years that the Minnesota and
Pennsylvania guidelines have been in effect,
significant differences in how appellate courts
review guideline cases have arisen. A comparison
of the appellate review process in Minnesota and
Pennsylvania concluded that the Minnesota
appellate courts substantively reviewed sentences
for the quality of the sentencing decision in
reducing disparity. Pennsylvania's appellate
courts, on the other hand, established a
procedural appellate review approach that merely
asks whether the trial court followed the proper
procedures in applying the guidelines.30

In part, enforcement determines the
presumptiveness of the guidelines. Voluntary
guidelines and those without some explicit
enforcement mechanisms, like the guidelines of
Michigan and Virginia, are generally considered
voluntary: judges are expected to consider them,
but there is no appellate review if the judges do
not conform to them. On the other hand, guidelines
such as those of Pennsylvania, which have a
relatively low standard under appellate review,
are less presumptive than the Minnesota guidelines
with the appellate standard of clear and
convincing.

Sentencing guidelines constrain judicial
discretion to consider various factors and to
determine the specific sentence. The jurisdictions
having sentencing guidelines approach the
standards to depart from the guidelines
differently. Some have left that issue to the
enabling legislation. Other commissions took the
initiative and established their own standards.
Minnesota's commission, for example, established
the standard of clear and convincing evidence to
depart from the guidelines. Similarly, Oregon's
commission articulated a substantial and
compelling standard for departures.

North Carolina took a somewhat different approach.
North Carolina's guidelines provide a standard
range and a range of sentences for aggravating and
mitigating circumstances. The guidelines provide
for three types of penalties: active punishment,
which is a sentence in the State prison system;
intermediate punishment, including residential
facilities, electronic house arrest, or intensive
supervision; and community punishment, which is
supervised or unsupervised probation that may
include outpatient treatment, treatment
alternatives to street crime, community service,
restitution, or fines. If the guidelines call for
an active prison sentence, the court may impose
intermediate punishment, but only when it is
found "that extraordinary mitigating factors of a
kind significantly greater than the normal case
exist and that they substantially outweigh any
factors in aggravation."31 The effect of this
approach in North Carolina is to draw a firmer
line around the active prison sentence, increasing
the likelihood that the guidelines will result in
the incarceration of more serious violent
offenders, as intended. Presumptiveness is
important to a State's ability to project prison
populations.

Enforcement and presumptiveness of sentencing
guidelines are important considerations for a
legislature when creating a commission. The more
presumptive the guidelines, the greater the
confidence that the guidelines will control
judicial discretion and achieve the goals of the
legislation, including controlling prison
populations. The more constraints imposed on
judges by the guideline ranges, the more
predictive are the State's prison populations.
Moreover, the more presumptive the guidelines, the
stronger the argument that mandatory penalties are
not necessary. On the other hand, the more
presumptive the guidelines, the higher the risk
that the "invisible side" of criminal justice will
become greater, with prosecutors bargaining on
charges or prior records to avoid the commission's
guideline range in favor of the local criminal
justice culture's range.32 This issue is complex
and lacks a clear-cut best policy. However, it is
a policy issue that drafters of guideline-enabling
legislation need to consider as they write the
enabling legislation.

Political and Legal Context

Reform efforts build on existing political and
legal structures. The more successful national
efforts consider the political environment and
grant their commissions the power and resources to
fulfill their responsibilities. However, a State's
statutory structure may not be conducive to
building sentencing guidelines. With States
consolidating their criminal statutes into broadly
defined offenses over the past century, the
imposition of sentencing guidelines exacerbates
the problem of reducing disparity. Realizing this
fact, Tennessee officials had their sentencing
commission undertake the complex task of revising
the criminal code.

The criminal justice system brings together local
and State agencies. The success of State guideline
systems may well rest on the willingness of courts
to implement the guidelines as intended.33 This
process may seem simple: adopt guidelines, and
they will be implemented. Foresight, planning,
careful coordination to ensure the quality of
sentencing guidelines, and consideration of those
who must implement them are crucial to success. In
fact, these factors should be evaluated and
considered as early as possible in the drafting of
the enabling legislation.

Expectation of criminal justice reforms must not
be too high. Eisenstein and colleagues conclude
from their study of court communities in three
States that "implementation of reform is not
perfect."34 The court community resists change
being imposed upon it. Guidelines are viewed as
attempts to change the "going rates" for
particular offenses. These guideline rates may not
be consistent with the rates that have been
developed in the local court.

While local going rates are not always invariant,
going rates provide rewards to the court
community. Going rates fulfill a sense of justice,
are efficient, and are effective. In fact,
Eisenstein and colleagues conclude from their
research that the "more radical a proposed change
the less likely is its adoption."35 This
conclusion is contradicted by the Spohn and Horney
study of legal reforms of rape laws, which found
that the more significant the reform, the more
likely it is to affect court behavior.36 Research
is contradictory, and each State must determine
how best to approach the problem, depending on the
relative autonomy of judges and the political
context. Each State must, however, thoroughly
consider the implementation of its guidelines if
it is to meet its goals.

Ongoing Monitoring of the Guidelines

Resistance to reform parallels the resistance
noted in the organizational literature, which
suggests that participation in the development and
implementation of guideline reforms by those who
must implement the changes increases the
likelihood of change.

Sentencing reforms frequently demonstrate
immediate changes, only to have practices quickly
return to prereform levels.37 One reason for this
phenomenon is that the initial attention and
publicity surrounding a new law diminish, with the
behavior of offender and system returning to
prereform patterns. Another reason is that the
changes are often mandated by a State agency. If
the State agency fails to obtain the commitment to
address the practical concerns of local officials
who must implement the reform, then there is
little chance of sustained effect.

It should be emphasized that the participation of
those who must implement the reforms is crucial;
the implementation and monitoring are also
necessary to sustain the reforms. Even with these
systems in place, Minnesota's guideline system
experienced backsliding (although not to
preguideline levels) during the second and third
years after implementation.38

Local Court Culture

Although guideline systems are intended to
structure discretion, local practitioners may
undermine the implementation of the guidelines if
they disagree with the concept of a guideline
system. For example, trying to change the
sentencing practices for offenses on the basis of
the offense of conviction may result not in
changes in sentencing, but in a shift in
prosecutorial practices to "adjust" to the
intended change, keeping the end result the same.
An effective guideline system requires the
enabling legislation and the guideline advocates
to consider the local legal culture and how
guidelines could fit into that culture.

Defining the stakeholders and including them in
the development of the guidelines facilitate
acceptance. Their involvement is important in the
early stages of development because the creators
of the guidelines often take ownership of the
project, serving as educators and marketers of the
guidelines. According to a former executive
director of the Washington State Guidelines
Commission, serious thought should be given to
maintaining the continued involvement of
stakeholders and obtaining commitment from new
stakeholders as positions turn over.39

Furthermore, if change requires financial
investment by local government, resistance by
county commissioners or local government officials
should be anticipated. One way to obtain increased
commitment from local courts is to include members
of local criminal justice systems on the
commission. Soliciting and carefully considering
local input for the guideline writing process
enhance the potential for guidelines to fulfill
their goals. Broad-based support generated during
the writing of the guidelines enhances a
commission's ability to obtain acceptance and
ensure smooth implementation.

Political Acceptance

The political acceptability of guidelines should
also be considered when a sentencing commission is
being created. The credibility of the commission
and the acceptability of its guidelines are
diminished when only minimal support exists for
commission goals or when a commission is
established solely to forestall other agendas.40
Little research has been done on the political
context of sentencing guidelines.41 However,
commissions have struggled to gain acceptance for
guidelines where there is little commitment to
values such as truth in sentencing, reducing
discretion, conducting appellate review of
sentences, or controlling prison populations. A
commission, once created, can help generate
support for itself; however, the experiences of
New York and South Carolina--where commissions
have been unsuccessful--indicate that this may not
be adequate.

A relatively new approach to politics and
sentencing is the 1994 Oregon referendum on
sentencing. In its 1994 election, Oregon passed
referendums that significantly affect State
sentencing guidelines. These referendums
established mandatory minimum sentences for a wide
range of offenses, including robbery, assault,
murder, and rape. Staff at the Oregon Sentencing
Guideline Commission have indicated that the
mandatory sentence would apply to approximately
1,200 offenders. Previous sentencing practices
under the guidelines sent 61 percent of the
offenders to prison and passed alternative
sentences on 39 percent. Mandatory sentencing
provisions also increase the length of
incarceration. For example, the average
incarceration sentence for the type of robbery
covered under the referendum is 57 months, but the
new mandatory sentence will be 90 months.
Furthermore, the ballot measure established that
juveniles committing specific crimes will be
remanded to the adult justice system. This measure
will obviously have a significant impact on the
courts as well as on the correctional system.

Summary

This chapter has reviewed the context and
authority of the commission on sentencing
guidelines. In general, successful commissions
were created in supportive environments and were
given strong legislative mandates. They were also
provided with funding adequate to hire experienced
staff and to meet regularly. These factors
contributed to--although they did not ensure--
success. Legislatures have developed various
approaches for designing and implementing their
guidelines. The perceived problems of sentencing
differ according to the perspective of the
observer.

Almost all States have adopted sentencing
guidelines to impose some constraints on
unfettered discretion; some States also wish to
increase certainty and predictability. Other
States aim to reduce prison overcrowding and
increase truth in sentencing.

Both State and local legal culture and the
political environment are important to consider in
the implementation of a State's guidelines. For
example, sentencing guidelines may be politically
overwhelming at one time, but as prison
overcrowding reaches crisis levels or results in
court-ordered constraints, their political
acceptability may increase. At some point, the
pressure of crowding and the financial cost of new
constructions to accommodate rising prison
populations may become overwhelming.

One issue that should not be ignored is that the
sentencing decision will be subjected to scrutiny,
requiring a commitment to develop coherent
sentencing policy. Research indicates that
legislatures that have started this process have
learned from it. However, with several States
failing to implement sentencing guidelines, the
pitfalls of the process become obvious, and a
State may decide not to effect change.
Nonetheless, in almost all jurisdictions, the
sentencing commissions and their guidelines have
flourished, despite diverse mandates and different
approaches to writing sentencing guidelines.

------------------------------

Notes

1. Goodstein, L., J.H. Kramer, and L. Nuss.
"Defining Determinancy: Components of the
Sentencing Process Ensuring Equity and Release
Certainty." Justice Quarterly 1(1)(1984), pp. 47-
73.

2. Singer, R.G. Just Deserts: Sentencing Based On
Equality and Desert. Cambridge, MA: Ballinger.
1979.

3. von Hirsch, A. Doing Justice: The Choice of
Punishments. New York: Hill & Wang. 1976.

4. von Hirsch, A. "Equality, Anisonomy, and
Justice: A Review of Madness and the Criminal
Law." Michigan Law Review 82(4)(1984), pp. 1093-
1112.

5. Note 4.

6. Bureau of Justice Statistics. National
Corrections Reporting Program, 1990. Washington,
DC: U.S. Department of Justice, Office of Justice
Programs. 1993.

7. Martin, S. "The Politics of Sentencing Reform:
Sentencing Guidelines in Pennsylvania and
Minnesota." In Research and Sentencing: The Search
for Reform, vol. 2, ed. A. Blumstein, J. Cohen, S.
Martin, and M. Tonry. Washington, DC: National
Academy Press. 1983.

8. Kramer, J.H., L. Lubitz, and A. Kempinen.
"Sentencing Guidelines: A Quantitative Comparison
of Sentencing Policy in Minnesota, Pennsylvania
and Washington." Paper presented at the annual
meeting of the American Society of Criminology,
San Diego, November 1989.

9. However, it should also be noted that the
Wisconsin commission has correctional
representation but was not specifically charged to
restrict prison populations.

10. Lubitz, R. "North Carolina Legislature
Considers Sentencing Change." Overcrowded Times
4(2)(1993), pp. 1, 9-10.

11. Bogan, K.M. "Constructing Felony Sentencing
Guidelines in an Already Crowded State: Oregon
Breaks New Ground." Crime and Delinquency
36(4)(1990), pp. 467-487.

12. See entry for Arkansas in Table 4-2 (not
available in this format).

13. See entry for Minnesota in Table 4-2 (not
available in this format).

14. Pennsylvania Commission on Sentencing.
Sentencing in Pennsylvania: Annual Report. State
College, 1994.

15. Laws of Minnesota 1978, Ch. 723-S.F. No. 65--
Subdivision 5(2).

16. Note 11, p. 469.

17. Note 7.

18. Data in Chapter 6 comparing incarceration
rates between Minnesota and Pennsylvania (since
each has implemented sentencing guidelines)
indicate that both States have significantly
altered incarceration rates as intended, although
other factors such as conviction numbers,
decisions by others in the system, and the
adoption of mandatory minimum sentencing
provisions will influence the incarceration rate.

19. Griset, P. Determinate Sentencing: The Promise
and the Reality of Retributive Justice. Albany:
State University of New York Press. 1991.

20. Note 7.

21. Tonry, M. "Structured Sentencing." In Crime
and Justice: A Review of the Research, vol. 10,
ed. M. Tonry and N. Morris. Chicago: University of
Chicago Press. 1988.

22. Misretta v. United States 488 U.S. 361 (1989)
presents a Federal examination of the issue.

23. Del Sole, J. "Appellate Review in a Sentencing
Guidelines Jurisdiction: The Pennsylvania
Experience." Duquesne Law Review 31(1993), pp.
419-504.

24. Note 8.

25. Note 7.

26. Knapp, K. "Allocations of Discretion and
Accountability Within Sentencing Structures."
Colorado Law Review 64(1993), pp. 679-705.

27. American Bar Association. Standards for
Criminal Justice--Sentencing Alternatives and
Procedures. 3d ed. Boston: Little, Brown &
Company. 1993, p. 5.

28. McCloskey, J. "The Effectiveness of
Independent Sentencing Commission Guidelines: An
Analysis of Appellate Court Decisions in Two
Jurisdictions." Paper presented at the annual
meeting of the American Society of Criminology,
San Diego. 1985.

29. Note 23.

30. Note 23. See also Note 28.

31. North Carolina Sentencing and Policy Advisory
Commission. Report of the 1993 Session for the
General Assembly of North Carolina. Raleigh, 1993,
p. 15.

32. Savelsberg, J. "Law That Does Not Fit Society:
Sentencing Guidelines as a Neoclassical Reaction
to the Dilemmas of Substantivized Law." American
Journal of Sociology 97(s)(1992), pp. 1346-1381.

33. Local courts have been studied in detail. One
of the overwhelming findings is the role played by
informal norms in guiding local courts and the
extent to which these norms vary across
jurisdictions within a particular State. See also
Notes 23 and 28.

34. Eisenstein, J., R.B. Flemming, and P.F.
Nardulli. Contours of Justice: Communities and
Their Courts. Boston: Little, Brown & Company.
1988, p. 296. See also Nardulli, P., R. Flemming,
and J. Eisenstein. The Tenor of Justice: Criminal
Courts and the Guilty Plea Process. Chicago:
University of Illinois Press. 1988.

35. Note 34, p. 294.

36. Spohn, C., and J. Horney. Rape Law Reform: A
Grassroots Revolution and Its Impact. New York:
Plenum. 1992.

37. Ross, H.L. Deterring the Drunk Driver.
Lexington, MA: Lexington Books. 1984.

38. Miethe, T.D., and C.A. Moore. Sentencing
Guidelines: Their Effect in Minnesota. Washington,
DC: U.S. Department of Justice, Office of Justice
Programs, National Institute of Justice. April
1989. See also Stolzenberg, L., and S.J.
D'Alessio. "Sentencing and Unwarranted Disparity:
An Empirical Assessment of the Long-Term Impact of
Sentencing Guidelines in Minnesota." Criminology
32(2)(1994), pp. 301-310.

39. Lieb, R. "Washington Prison Population Growth
Out of Control." Overcrowded Times 4(1)(1993), pp.
1, 13-14, 20.

40. Note 7.

41. See Note 19 for exceptions to this. See also
Kramer, J., and J. McCloskey. "The Role of
Political Pressure in Developing Sentencing
Guidelines for Drug Offenses." Paper presented at
the 1988 annual meeting of the Academy of Criminal
Justice Sciences, San Francisco. 1988.

------------------------------

Chapter 5

Writing Sentencing Guidelines

A sentencing commission must immediately confront
the difficult task  of writing guidelines.
Sentencing is a complex issue, involving the
community, the courts, and the purpose(s) to be
accomplished through the sentence. Many critics
will question whether the sentence was
appropriate, whether it can protect the public, or
whether it can rehabilitate the offender. Despite
the difficulty, many commissions have written,
adopted, and implemented guidelines. This chapter
describes this complex decisionmaking process.

The writing of sentencing guidelines requires the
sentencing commission to determine what factors
should be considered for the guidelines; how the
factors are to be measured in applying the
guidelines so that they are reliably applied by
the court; and which sentences can be applied on
the basis of those factors. The descriptive
approach looks at past sentencing practices,
identifies the factors that judges have used in
the past, and, after eliminating inappropriate
factors such as race and gender, incorporates them
into the guidelines. The in/out and
sentence-length decisions are based primarily on
the measurable factors deemed substantively
important and statistically significant in past
sentencing practices.

In the prescriptive approach, the commission
relies more on its own judgment in determining the
factors for consideration in sentencing. In
reality, sentencing commissions use data on past
sentencing practices to guide their decisions even
if they adopt the prescriptive approach. Past
practices are generally used to determine the
impact of the proposed changes and to test how the
views of the commission members may compare with
the actual sentencing practices of the judiciary.
Although past practices may be used as a
guidepost, they do not limit the commission's
ability to change the guideline recommendation
from previous sentencing practices.

There are certain consistencies as well as key
differences among the States that have written
sentencing guidelines. States consistently
identify the seriousness of the current offense
and a defendant's prior record as the two major
factors to be considered in sentencing. However,
guideline systems vary considerably in
incorporation of these factors. All States assess
the seriousness of the conviction offense;
however, Florida has separate guidelines for each
general category, while Minnesota, Oregon, and
Washington rank all offenses on a single scale of
seriousness. The result is that Florida works with
several different matrices, while Minnesota,
Washington, and Oregon each work with one matrix.

A commission's product reflects the process that
it uses to create the guidelines. The more groups
that are involved, the greater the likelihood of
broad-based support.

Offense Seriousness

All States with sentencing guidelines employ
offense seriousness as the primary factor to be
considered in recommending sentences. However,
some jurisdictions may measure an offense
according to likelihood of relapse, as is often
done in parole guidelines. If a sentencing
guideline system adopted the prediction of
recidivism as its major purpose, then ranking of
the current offense would differ significantly
from a measure targeting the most serious
offenses. For example, murder is always the most
serious offense when offenses are ranked by
severity. However, when offenses are ranked by
likelihood of relapse, murder would rank low
because murderers have a relatively low risk of
relapse. Theft offenders are more likely to
relapse and therefore rank high on a risk
measurement scale.

Sentencing commissions have unanimously determined
that offense rankings should rest on the
seriousness of the offense and not on the risk of
recidivism. One of the foundations for sentencing
guidelines, then, is apparently focused on a
retributive, or just deserts, model that
determines penalties relative to the severity of
the offense.

It should be noted that some State statutes are
very specific regarding bodily injury and use of
weapons so the guidelines need no special
enhancements to take these offenses into
consideration. The table oversimplifies some
guideline systems, such as that of Wisconsin,
which has many different matrices and varies the
number of criminal history categories depending on
the offense matrix. The methods for ranking
offense severity range from reliance on statutory
grading to the use of social science scaling
techniques. Most States begin with the offense
classification used in statutes and then make
finer distinctions within those grades. For
example, Pennsylvania has three statutory grades
for felonies and three statutory grades for
misdemeanors. The commission made distinctions
beyond the statutory classifications; the initial
guidelines contained 10 categories measuring
offense seriousness. Oregon and Pennsylvania
subcategorized offenses so that the guideline
measure of offense seriousness more closely
reflected the severity of the crime.1

Articulated Offense Ranking Principles

Some States developed principles to be used in
measuring offense seriousness. In such States the
sentencing commission begins the ranking process
by identifying distinguishing factors such as the
degree of injury to the victim, the amount of
property loss, and the culpability of the
offender. After the factors are ranked, specific
offenses are attached to the rankings. The major
advantage of this approach is that it allows for
easy incorporation of newly created offenses into
the rankings and provides a clear rationale to
legislators, judges, and others as to the basis
for the rankings. North Carolina, Louisiana, and
Kansas have used this approach in ranking
offenses.

Number of Offense Levels

The numbers of Offense Gravity Score levels
generally range between 9 (North Carolina) and 15
(Washington). These numbers contrast with the
United States Sentencing Commission's (USSC's)
development of 43 categories. Commissions indicate
that the number of categories is based on two
goals: keeping the measure simple for
implementation purposes and avoiding too few
categories to allow for differentiation among the
seriousness of offenses. In addition, States
indicate that because the current measures for
ranking offense seriousness still cluster offenses
of different levels of seriousness, judges are
encouraged to depart from the guidelines when a
recommendation is inappropriate for a nontypical
offender.

Number of Matrices

Another issue regarding offense measurement is
whether a State adopts single or multiple
matrices. Several States such as Florida,
Wisconsin, and Kansas have multiple matrices. The
Kansas guidelines contain one matrix for drug
offenses and another for nondrug offenses. Kansas
developed a separate matrix for drug offenses for
a number of reasons: the complexity of
distinguishing drug amounts and other problems
perceived to be peculiar to drug convictions; the
significant proportion (25 percent) of offenses
represented by drug offenses; and the commission's
desire to provide relatively harsh penalties for
drug offenses.

Wisconsin has developed 18 separate matrices so
that the offense severity measure can be tailored
to the type of offense. Multiple matrices allow
the guidelines to incorporate additional severity
factors, such as use of weapons, that are viewed
as significant for a particular offense.

A problem with the multiple matrix approach is
that it may result in no comprehensive system of
offense seriousness. For example, the dual
matrices of the Kansas guidelines allow for
disproportionality between drug and nondrug
offenses.

Other States have imitated the matrix approach
developed by Minnesota in 1980 because of its
simplicity. The matrix reads like a roadmap, with
the offense severity measure along one side of the
table and the prior record measure along the
other. This approach has received criticism for
oversimplifying the complexity of sentencing,
however.

A recent innovation that does not rely on matrices
is the Swedish model. Sweden's criminal code did
not establish numerical guidelines but set forth
principles for the courts to consider in
sentencing.2 Sentencing in this system consists of
two phases. The court must first assess the
seriousness of the offense on the basis of
harmfulness (such as the defendant's culpability)
and other offense-related factors. Then the court
assesses whether the offense justifies
imprisonment or a fine, based on the seriousness
of the offense. If a fine is deemed inappropriate
and imprisonment is required, the court determines
whether probation is an appropriate alternative to
imprisonment. Again, the criminal code guides this
decision.

Young offenders (under the age of 21) require
special justification to be imprisoned. The court
is expected to place on probation any offender who
needs treatment. Thus, Sweden's criminal code
favors a logical sequence of decisionmaking. This
model could be applied to various U.S. sentencing
options including probation, the range of
intermediate penalties, county incarceration, boot
camp, and State confinement.

Comprehensiveness of Offense Coverage

A significant issue in the measurement of offense
severity is whether the measure integrates
felonies and misdemeanors. Most States focus on
providing guidelines for felonies; however, such
focus may allow the court to sentence misdemeanor
offenders more harshly than felony offenders,
threatening the integrity of the guideline's
attempt to achieve fairness and proportionality.

However, the decision concerning the breadth of
guideline coverage has important philosophical and
practical implications. Because sentencing
commissions are State agencies whose major focus
is on State imprisonment, allowing total
discretion for misdemeanors allows county
jurisdictions greater freedom to consider local
resources and set a local sentencing standard.

Subclassification of Statutory Definitions

One of the problems facing almost any commission
attempting to rank offense seriousness is that of
statutory definitions. Over the past century,
statutes have tended to consolidate a broad range
of criminal behaviors under one statutory
definition.3 The court is thus provided with
extensive discretion to impose the appropriate
sentence for each defendant. The only limit on the
court's authority for the worst case was the
statutory maximum. Once a commission attaches
presumptive guideline sentences to specific
offenses, the breadth of the statutory definitions
presents problems for the commission. For example,
assigning a statutory offense a single rank on an
offense seriousness scale can be a problem when
the behaviors in any particular offense vary
considerably.

Guidelines can address this problem in one of four
ways. USSC adjusts the rank of crimes on the basis
of the offender's behavior. In the USSC approach,
the offense of conviction is the starting point,
but the final rank of the offense is adjusted
significantly on the basis of an offender's
conduct, regardless of whether the conduct was a
part of the offense of conviction. This is
referred to as "real offense" or "modified real
offense" sentencing.

The court can be allowed wider discretion to cover
such circumstances. The difficulty with this
second approach is that it relies on similarity of
practices among judges to avoid significant
sentencing disparity, reflected in either wider
ranges in the guideline matrix (such as those in
Pennsylvania's matrix) or wider discretion to
depart for aggravating or mitigating
circumstances.

A third approach, used by Oregon and Pennsylvania,
is referred to as the "subcategorization" of
offenses to reflect different degrees of severity.
For example, in Pennsylvania all burglaries
historically have been classified as felony 1
offenses (the most serious statutory grading). The
Pennsylvania sentencing commission drafted
guidelines that subcategorize the single statutory
burglary into four categories and then recommend
different sentences on the basis of whether a
residence was burgled and whether someone was
present at the time of the burglary. It is
significant that Pennsylvania included a factor
that was part of the statutory definition (whether
the structure was occupied) and added a real
offense factor (type of structure) in its
guidelines. The legislature later created a felony
2 burglary that parallels the least serious of the
burglary subcategories (i.e., nonresidential
burglary at which time no one was present).

A fourth approach, adopted by Florida and
Wisconsin, provides specific guidelines for
various offense types. Florida's original
guidelines established eight offense types and
developed special guidelines for each. Although
more complex, this system allows a commission to
incorporate factors linked to particular offenses.
Most guideline systems have rejected this model
because of the problems of maintaining
proportionality among offenses.

Real Offense Versus Conviction Offense

The sentencing decision generally begins with a
focus on the conviction offense; this focus,
however, may result in sentencing disparity, which
guidelines aim to prevent. Many debate whether a
guideline system appreciably diminishes disparity
when it allows considerable latitude to the
prosecutor to determine the guideline range based
on charge bargaining.4 An alternative to
conviction-based guidelines is real offense
sentencing guidelines.5 No commission has embraced
a real offense sentencing guideline system,
perhaps primarily because of the appearance of
unfairness. A fairness issue arises when sentences
are based on a defendant's alleged conduct, which
has a lower burden of proof than what is required
to convict an offender.6

Another concern is that the role of plea
bargaining in producing substantive justice may be
undermined if defendants realize that the bargain
will not influence the sentence.7 That is, plea
bargaining carries perceived advantages. Guideline
States have adopted an offense-of-conviction
approach, presuming that this is the fairest
system--although the difficulty presented by plea
bargaining is recognized.

USSC has addressed the issue of plea bargaining by
beginning with the offense of conviction and then
adding numerous factors for the court to consider
as enhancements (such as degree of injury to
victims, weapon use, and role in the offense) and
as mitigating factors (such as substantial
assistance to authorities).

Criminal History

Purpose

Criminal history, or prior record, is the second
major consideration in determining guideline
sentences, the propriety of which has been hotly
debated. Those who espouse a just desert or
retributive philosophy argue that prior record
should play a very limited role or no role in
sentencing.8 However, all guideline systems
include considerations of criminal history on the
widely accepted premise that prior criminal
activity demonstrates increased culpability and
perhaps indicates future criminality.

One reason to consider prior record in sentencing
is to ensure awareness of an offender's increased
culpability: A previously convicted offender who
commits another crime has clearly been informed
that criminal behavior is wrong but has relapsed
despite such a warning. Another reason for
considering prior record is risk assessment, or to
predict future criminality. Sentencing commissions
have not stated such a purpose of considering
prior convictions; however, sentencing guidelines
in the State of Washington weigh offenses
differently depending on the current offense. For
example, prior convictions for burglary count
three points each against a current burglary
offense, while prior convictions for murder count
only two points.

Measurement of Criminal History

Data indicate that most States measure both the
number and seriousness of prior convictions and
that many States such as Minnesota consider
additional factors such as an offender's status
(e.g., being on probation) at the time of the
current offense. The total number of prior record
score categories varies among the States (e.g.,
Washington has nine categories and Tennessee has
only five).

The measurement of criminal history for purposes
of guideline application raises many important
issues. Among the most significant issues are how
refined such a categorization should be and
whether such a measure creates a typology of
offenders. Some States (Minnesota, Washington, and
Pennsylvania) have numerical scores that measure
the number and seriousness of prior convictions.
Most States with numerical prior record scores
weight prior convictions as Pennsylvania does,
with prior felony offenses assigned one, two, or
three points depending on severity. Prior
misdemeanors may count no more than two points in
the total prior record score.

Other guideline States (Oregon, Michigan, and
Kansas) use descriptive categories that rely less
on numerical scores or calculations. Instead,
criminal history categories differentiate types of
offenders such as those convicted of violent
crimes and those convicted of multiple felonies.
Such labels are intended to convey to the court
the type of offender. One advantage of this
approach is that the prior record categories
contain a more homogeneous group of offenders in
each criminal history category, increasing the
likelihood that guidelines built on such measures
can better reduce unwarranted disparity. For
example, in States such as Minnesota and
Pennsylvania, offenders may be violent or
nonviolent and yet receive the same prior record
score.

USSC takes a unique approach to scoring and
weighing prior convictions. The Federal guidelines
incorporate the severity and length of prior
sentences into the criminal history score. An
offender who received a prison term for a specific
conviction would have a higher criminal history
score than an offender who received probation for
the same offense. The question of perpetuating
past disparity is then raised.

Juvenile Adjudications

One matter concerning measurements of prior record
scores is whether to consider juvenile
adjudications and, if so, to what extent. Some
would argue that an offender entering adulthood
should have a clean slate and that juvenile
adjudications should not count. This position
rests in part on the more informal process of the
juvenile court and its emphasis on a juvenile's
welfare and treatment. Moreover, it is argued that
the juvenile court uses a lower standard for a
finding of guilt than does the adult court. It has
also been argued that juvenile records are less
reliable than adult records across counties and
that this inconsistency results in disparity in
guideline systems relying on juvenile records.
Some jurisdictions such as Pennsylvania, however,
have noted an improvement in juvenile
recordkeeping as a result of the incorporation of
juvenile adjudications into their guidelines.

Most States include juvenile adjudications in the
measurement of prior records. An individual with a
prior record has increased culpability, which is a
justification used for including prior adult
convictions. Juvenile records might also be
important as assessments of offender risk of
future criminality, although no State visited by
researchers argued that guidelines created the
prior record score as a predictive instrument.

Lapsing of Prior Convictions

Another issue raised in measuring criminal history
is whether to lapse or expunge records of prior
convictions after an offender remains crime free
for some period of time. Several States, such as
Minnesota and Washington, omit prior convictions
after a specified number of years, whereas other
States, such as Pennsylvania and Oregon, do not.

Two basic arguments have been offered in favor of
lapsing prior records. First, a long period of
crime-free behavior may indicate diminished
culpability/blameworthiness. Second, a long
crime-free period may indicate that an old prior
record has less value in predicting future
criminality.

Others, such as members of the Oregon and
Pennsylvania sentencing commissions, argue that
although the age at the time of a prior offense
may be a mitigating factor, the principle of truth
in sentencing demands that judges have information
on all prior convictions at the time of
sentencing.

States that include juvenile adjudications in
their guidelines almost always have a lapsing
provision. For example, Minnesota lapses
adjudications at age 21, Florida at age 23, and
Maryland at age 25. Kansas lapses juveniles
adjudications at age 25, except for serious
personal offenses.

Prior Record and Disparity

Sentencing disparity is one significant issue for
sentencing guideline systems. Disparity control
requires that the guidelines be correctly applied
to ensure that those with similar prior records
are treated similarly. It is important to
establish a policy to address prior convictions
from other jurisdictions. Most States have
required the courts to translate previous
convictions into current codes. If the appropriate
classification (e.g., whether the offense would be
classified as a felony or misdemeanor) is
ambiguous, then the court gives the defendant the
benefit of the doubt and applies the least serious
classification.

Another disparity issue concerns the availability
of records, which may be a particularly serious
concern with the USSC standard of relying on
previous sentences. Historically, State
recordkeeping systems for dispositions and
sentences have been inadequate. The more complex
the measure of prior record, the greater is the
risk of disparity.

Defining Previous Conviction

The definition of prior convictions affects which
convictions are counted in the prior record
calculations and thus affects sentence
recommendations. At one extreme, the definition of
previous conviction could require that commission
of the offense, conviction for the offense, and
sentence for the conviction all occur before the
commission of the current offense. At the other
extreme, a definition could include all offenses
for which a defendant has been convicted,
regardless of whether conviction and sentencing
occurred before the current offense. These
alternatives can produce very different prior
record scores and dramatically different sentence
recommendations.

In some States, the definition of prior conviction
has been subject to appellate review. In Minnesota
the State supreme court has established that if a
defendant is sentenced on the same day for three
offenses, then the first two count in the prior
record against the third offense. The role of
criminal history in sentencing is thus inflated.
In addition, a policy assuming that the commission
of prior offenses increases the culpability of an
offender--regardless of whether the offenses are
committed before or after the current offense--is
established.

Other Factors

Guideline systems across the country incorporate
many factors in addition to the seriousness of the
current offense and the prior convictions of a
defendant. These factors include the
possession/use of a weapon, the degree of physical
injury to the victim, and whether a drug
trafficking offense occurred near a school. If
State statutes make such distinctions, sentencing
commissions generally rely on the statute.
However, some States historically have left such
distinctions to the discretion of the courts, and
commissions have incorporated them into
guidelines. For example, the Pennsylvania and U.S.
sentencing guidelines incorporate numerous factors
not included in statutes but thought by
commissions to be necessary for establishment of
fair guidelines.

The USSC guidelines incorporate factors that are
not a part of the conviction offense but that the
Commission thinks should be considered in
sentencing. Data indicate that the USSC
incorporates more factors than any other
commission attempts to systematically include in
its guidelines. Furthermore, the USSC considers
these factors in greater detail than do the
States. For example, in assessing bodily injury
for aggravated assault with intent to commit
murder, USSC breaks down the categories into (1)
bodily injury, (2) serious bodily injury, and (3)
permanent or life-threatening bodily injury. The
base offense level receives 2, 4, or 6 penalty
points depending on the extent of injury allegedly
caused by the offender in commission of the crime.

These enhancements to statutory factors reflect
the intent of USSC to incorporate real offense
sentencing factors into the guidelines. Minnesota
chose not to create such enhancements, however, in
keeping with its decision to focus on conviction
behavior. In general, detailed statutory
definitions require commissions to deal with fewer
proportionality concerns through enhancements and
real offense sentencing.

Developing Sentencing Recommendations

In establishing sentencing guideline ranges,
commissions must consider many difficult topics,
including the following:

o The role of past sentencing practices in
establishing the guideline sentence
recommendations.

o The amount of judicial discretion to be left to
the court.

o The role of guidelines in affecting correctional
capacity.

o The decision whether to link guideline sentence
recommendations to mandatory penalties.

o The relative role of enhancements to guideline
ranges.

o The extent to which the commission wants to
specify nonincarceration options.

State decisions have varied widely, depending on
State confidence in the judiciary and in the
ability of the guidelines to capture the
appropriate sentencing standards for the typical
case. Commissions can also be influenced by the
political environment. This report does not allow
for indepth exploration of each of these issues.
However, the reader should be somewhat familiar
with how various commissions address these issues.

Descriptive Versus Prescriptive Guidelines

As mentioned previously, the focus of the
descriptive approach to guideline development is
to reduce sentencing disparity by narrowing the
range of variance of similarly defined cases under
sentencing guidelines. This approach establishes a
guideline that accounts for the variables in
guideline construction and in the general
sentencing practices historically used by
sentencing judges.

Most States, however, have rejected a purely
descriptive approach because past practices do not
necessarily reflect appropriate sentences.
Furthermore, changes in resource availability
(e.g., correctional capacity) and changes in
societal definitions of the seriousness of various
crimes necessitate reevaluation of past criteria.
Nevertheless, all commissions use past practices
in considering whether to change practices through
sentencing guidelines.

Most States have adopted more prescriptive models
of sentencing. This approach encourages sentencing
commissions to consider, aside from available
correctional capacity, the roles of deterrence,
incapacitation, rehabilitation, and retribution in
the recommended guideline ranges. The prescriptive
model leaves more decisions for the commission and
is necessary for States that want to use the
guidelines to help slow the growth of prison
populations.

Researcher interviews with State commissions
indicate that past practice is one of the building
blocks of all sentencing guidelines. Examining
past sentencing practices provides the commission
with (1) a benchmark against which to test the
sentences being developed; (2) a measure to assess
the potential impact of guidelines on sentencing
and thus on correctional resources; and (3) an
idea of the extent of disparity in sentencing.
Past practices represent a very important
foundation for the drafting of sentencing
guidelines.

Determining Sentence Lengths

Historically, sentencing has been viewed as
involving two decisions: should an offender be
incarcerated and, if so, for how long? The first
States adopting sentencing guidelines focused on
these two decisions. Minnesota's guidelines, which
apply only to felonies, focused almost exclusively
on the State imprisonment decision and the length
of such imprisonment. For offenders not
recommended for State prison, the guidelines
provided little guidance concerning appropriate
lengths for county jail sentences or for
community-based alternatives.

In recent years many innovations in sentencing
guidelines have been developed. The
prison-crowding problem at both State and local
levels pressured State sentencing commissions to
search for means to encourage alternatives to
incarceration. This interest was boosted by the
book, Between Prison and Probation.9 The result
was a new concept of alternatives to incarceration
that were more than merely mechanisms for
relieving prison crowding. These alternatives were
also important in providing an intermediate range
of penalties between prison and probation. Morris
and Tonry's book significantly changed the concept
of alternative sentencing programs, allowing
people who write guidelines to more closely link
the relatively expansive measures of offense
seriousness and prior record with a range of
penalties commensurate with basic guideline
factors.

Oregon and Louisiana developed alternatives that
involved more punishment and restriction of
liberty than did probation but that were more
cost-efficient than prison or jail cells.
Furthermore, these alternatives promised greater
opportunities for offenders to contribute to their
support and rehabilitation. Louisiana and Oregon
mechanisms equate the amount of time needed in
alternative programs with a period of
incarceration. Data illustrate the concept of a
penalty structure that ranges from probation to
State incarceration, as developed by Louisiana's
sentencing commission.

One of the important roles for guidelines in the
move toward more frequent use of nonincarcerative
sanctions is their ability to identify offenders
who are appropriate for such sanctions. Oregon and
Louisiana have expressed all sentence
recommendations apart from State prisons in terms
of custody units or sanction units, and courts can
select from a number of sentencing options such as
jail, traditional probation, house arrest,
community service, work release, or custodial
treatment. Similarly, Washington's sentencing
guidelines now express sentence recommendations
apart from State prisons in terms of confinement
time, but courts may decide the type of
confinement or nonconfinement programs in which
time is to be served.

Having guidelines identify eligible offenders
assures the public that such programs target
appropriate offenders (such as nonviolent
offenders) and those with the least serious prior
records. Moreover, having guidelines target
offenders for intermediate punishment sanctions
reduces the risk that these programs will result
in what is called net widening in which
intermediate punishments target persons who would
otherwise receive short jail sentences, with
guidelines targeting such offenders for
intermediate punishment.

Width of Guideline Ranges

Many questions have been raised concerning how
much discretion guideline recommendations should
allow to judges. Some States, such as Minnesota,
provide very narrow ranges. Others, such as
Pennsylvania, provide wide ranges. Most
jurisdictions, however, have established ranges
wider than Minnesota's but narrower than
Pennsylvania's.

There are both practical and philosophical
concerns related to wide-ranging judicial
discretion.10 First, wide ranges allow disparate
sentences for similar offenders. For example, the
Pennsylvania guideline for an offender convicted
of rape (without prior record) would allow the
judge to impose a minimum sentence ranging from 3
1/2 to 5 years. Similarly situated offenders can
receive dissimilar sentences that still fall
within the guidelines.

Second, wide-ranging discretion makes it difficult
to project how judges will sentence within the
range. If judges impose sentences from the upper
part of the range, the impact will likely be
underestimated.

Third, wide ranges allow consideration of factors
that may be inappropriate in the sentencing
process and may violate the intent of the
guidelines. For example, wide ranges allow for
county variations that contradict the guideline's
intent to establish a statewide sentencing policy.
Also, wide ranges allow for disparate sentences on
the basis of factors such as employment, age,
race, and gender.

Link of Guideline Recommendations to Mandatory
Penalties

An issue of growing concern for sentencing
commissions is whether guidelines should be
commensurate with mandatory sentencing penalties
adopted by legislatures. The question is: Should
the commission take the prescriptive mandatory
penalties as its benchmark and attempt to have a
comprehensive and proportional system? The USSC
guidelines adopted such a policy for drug
offenses; this policy is perhaps the main reason
for the significant impact of the Federal
guidelines on the size of correctional
populations. Other guideline systems, such as the
one in Pennsylvania, view the guidelines
independently of the mandatory statutes and have
not attempted the linkage. The Pennsylvania
commission deemed it necessary to act as an
independent agency, with the guidelines reflecting
differences not included in the mandatory
statutes. This approach produced guidelines that
were harsher than the mandatory statutes for some
offenses but more lenient for others.

Some commissions therefore reject the argument
that guidelines should be commensurate and
proportional to mandatory statutes because
guidelines focus on different purposes (e.g.,
fairness) and provide for greater specification
based on more factors. Furthermore, guidelines are
written for the typical offender, whereas
mandatory minimum penalties often address the
worst cases.

Multiple Convictions

A significant proportion of sentences involve
multiple convictions, but few States provide
guidance on whether such sentences should be
concurrent or consecutive. Most commissions leave
this decision to the courts without any guidance.
One notable exception, however, is the policy
drafted by the Minnesota sentencing commission.

Minnesota policy allowed for the imposition of
consecutive sentences only under the following
circumstances: (1) when at least one of the
current offenses is a crime against the person,
the sentence imposed is within the guidelines, and
the sentence from a previous offense has not
expired; (2) when the offender is convicted of
multiple felonies against the person and is
sentenced within the guidelines for the most
serious offense; or (3) when the current
conviction is for escape. In all other
circumstances, imposition of consecutive sentences
would be considered a departure requiring written
justification. This policy provides separate
retributive punishment in cases involving victims
of serious violent crimes and provides for the
severity of the sanction to be proportional to the
severity of the offense.

The Canadian sentencing commission suggested a
different approach, recommending that discretion
be left to the court regarding the imposition of
concurrent or consecutive sentences for multiple
convictions.11 However, the commission suggested a
policy to limit the total period of confinement
for offenders convicted of multiple transactions
on the basis that the total sentence should be
limited to prevent life sentences from being
imposed for less serious offenses.

The Kansas sentencing commission is one of the few
to establish a policy governing the length of
confinement for a "current conviction event."
Kansas policy states that the total sentence
cannot exceed twice the sentence recommended in
the guidelines.

In general, commissions have left this sentencing
issue to the discretion of the court. In view of
the significant number of cases involving multiple
convictions, however, such a policy allows
considerable discretion and the potential for
considerable disparity.

Sentencing Event

One of the issues to be addressed by a sentencing
commission is how to define a sentencing event in
the guidelines. North Carolina defines a
sentencing event as all sentences imposed on a
defendant within a session of the court, generally
within 1 week. Pennsylvania defines a sentencing
event in terms of criminal transactions, on the
basis of when the offenses occurred; for each
separate transaction, a separate guideline form is
required. Separate transactions occur when
law-abiding behavior is exhibited between
offenses; otherwise, the offenses are considered
part of the same transaction.

The definition of a sentencing event influences
how information is collected and used. Data
systems using criminal transactions must be
corrected to make prison impact statements. In
other words, prison impact assessments require the
identification of how many individuals are being
sent to prison and for how long.

Aggravating and Mitigating Circumstances

In contrast to mandatory minimum sentencing, one
of the advantages of a guideline sentencing system
is that it provides recommendations for typical
cases and allows judges to depart from these
recommendations when extenuating circumstances
exist. When judges depart from guideline
recommendations, however, they are required to
justify their sentences.

As indicated in data, almost all of the guideline
States list aggravating and mitigating factors
deemed appropriate for judges to consider in
departing from presumed sentence recommendations.
Even States such as Arkansas, where the guidelines
are not subject to appellate review, have such a
list. It should be noted that these lists are
nonexclusive, leaving discretion to the court for
consideration of other factors warranting
departure.

Incorporating a list of nonexclusive aggravating
or mitigating factors helps provide some direction
to the court and is intended to provide more
consistency across the State for sentences that
depart from the guidelines. This approach falls in
line with the goal of providing fairer and more
equitable sentencing, which is one of the reasons
for States to implement guidelines. Furthermore,
the lists are useful for assisting commissions if
they revise the guidelines later. For example, the
reasons can help determine why some offenses have
high departure rates and how better
recommendations can be made.

The decision to include such a list, however, can
become controversial for commissions. Pennsylvania
is one of the few States that does not provide
reasons for departure; this is particularly
interesting in light of their enabling legislation
requiring the guidelines to provide aggravated and
mitigated sentence recommendations. The original
set of proposed 1981 Pennsylvania guidelines
included such a list, although the commission
eventually decided to delete it. The decision to
delay incorporation of aggravating and mitigating
factors into the guidelines was based on the need
for data to be used to develop such reasons.

The Pennsylvania commission has revisited the
issue of whether to incorporate a list into its
guidelines. Aside from providing for more
consistency among judges, a statewide survey had
indicated that people who used the guidelines
would appreciate having a list. Furthermore, the
reasons for departure often received by the
commission were considered inadequate. However,
the commission from judges eventually decided not
to include a list of reasons for departure because
it would be a crutch for judges and unnecessary.
There was also concern that it would result in
more appellate litigation. Pennsylvania's stance
is interesting in view of recent studies of race
and gender, which find discrimination in
departures from the guidelines.12

States that provide reasons for departure have
neither indicated problems with such a decision
nor advised against developing such a list. In the
development of a list of appropriate departure
reasons, caution should be exercised so that a
balance is maintained between the number of
aggravating and mitigating reasons and the
guidelines do not appear to favor defense or
prosecution.

The number of formal reasons for departure varies
by State, with most States having 10 or fewer
reasons for both aggravation and mitigation. The
number of reasons ranges from 4 (aggravating
reasons in Kansas; mitigating reasons in
Minnesota) to 31 (aggravating reasons in North
Carolina). Washington reports more than 50 reasons
cited by judges in mitigating guideline sentences.

The type of factors allowed also varies by State.
Minnesota has developed a list of reasons
considered inappropriate for departure, including
race, gender, and employment status of the
defendant. However, other States allow reasons of
employment and other socioeconomic factors to be
used to justify a departure sentence. For example,
North Carolina allows the following factors to be
considered in making a departure:

o Defendant supports her or his family.

o Defendant has a positive employment history or
is gainfully employed.

o Defendant has a good treatment prognosis and a
workable treatment plan.

o Defendant has a support system in the community.

Similarly, among the reasons allowed by the
Washington sentencing commission as possible
justifications for departures are the following:

o Defendant's rehabilitation or treatment.

o Defendant's remorse.

o Defendant is employed or in school, or has had a
commendable employment record or military service.

o Defendant's age.

o Defendant's assistance to law enforcement or in
prosecution of codefendant.

Clearly, how extensively these subjective factors
are used to depart from the guidelines will have
much to do with meeting the goal of reducing
unwarranted disparity.

Summary

The drafting of sentencing guidelines is a complex
and lengthy process. How the guidelines are
written bears directly on sentencing disparity,
the use of incarceration for various offenders,
and prison crowding. The complexity results from
balancing diverse and conflicting values with the
knowledge obtained through social science research
concerning sentencing decisions and their
effectiveness in deterring, incapacitating,
punishing, and treating offenders. Combined with
limited correctional resources, this complex
process of drafting sentencing guidelines creates
a tremendous challenge for sentencing commissions.

------------------------------

Notes

1. Blumstein, A., J. Cohen, S.E. Martin, and M.H.
Tonry (eds). Research on Sentencing: The Search
for Reform. Washington, DC: National Academy
Press. 1983. See also Bogan, K.M. "Constructing
Felony Sentencing Guidelines in an Already Crowded
State: Oregon Breaks New Ground." Crime and
Delinquency 36(4)(1990), pp. 467-487.

2. von Hirsch, A. "Principles for Choosing
Sanctions: Sweden's Proposed Sentencing Statute."
New England Journal on Criminal and Civil
Confinement 13(2)(1987), pp. 171-195. See also
Ashworth, A.J. "Sentencing Reform Structures." In
Crime and Justice: A Review of the Research, ed.
M. Tonry, pp. 188-244. Chicago: University of
Chicago Press. 1992.

3. Singer, R.G. Just Deserts: Sentencing Based On
Equality and Desert. Cambridge, MA: Ballinger.
1979.

4. Alschuler, A.W. "Sentencing Reform and
Prosecutional Power: A Critique of Recent
Proposals for `Fixed' and Presumptive Sentencing."
University of Pennsylvania Law Review 126(1978),
pp. 550-577. See also Mistretta v. United States
448 U.S. 361 (1989) for a Federal examination of
the issue. See also Savelsberg, J. "Law That Does
Not Fit Society: Sentencing Guidelines as a
Neoclassical Reaction to the Dilemmas of
Substantivized Law." American Journal of Sociology
97(s)(1992), pp. 1346-1381.

5. Robinson, P.H. "Hybrid Principles for the
Distribution of Criminal Sanctions." Northwestern
Law Review 82(1987), pp. 19-42. See also Note 6.

6. Reitz, K.R. "Sentencing Facts: Travesties of
Real-Offense Sentencing." Stanford Law Review
45(1993), pp. 523-573.

7. Eisenstein, J., and H. Jacob. Felony Justice:
An Organizational Approach to Criminal Courts.
Boston: Little, Brown & Company. 1977. See also
Nardulli, P., R. Flemming, and J. Eisenstein. The
Tenor of Justice: Criminal Courts and the Guilty
Plea Process. Chicago: University of Illinois
Press. 1988.

8. von Hirsch, A. Doing Justice: The Choice of
Punishments. New York: Hill & Wang. 1976. See also
Note 3.

9. Morris, N., and M. Tonry. Between Prison and
Probation: Intermediate Punishments in a Rational
Sentencing System. Oxford: Oxford University
Press. 1990.

10. Martin, S. "Interests and Politics in
Sentencing Reform: The Development of Sentencing
Guidelines in Pennsylvania and Minnesota."
Villanova Law Review 29(1984), pp. 21-113.

11. Canadian Sentencing Commission. "Sentencing
Reform: A Canadian Approach." Canada: Minister of
Supply and Services. 1987.

12. Kramer, J.H., and D. Steffensmeier. "Race and
Imprisonment Decisions." The Sociological
Quarterly 34(2)(1993), pp. 357-376. See also
Steffensmeier, D., J. Kramer, and C. Streifel.
"Gender and Imprisonment Decisions." Criminology
31(3)(1993), pp. 411-446.

------------------------------

Chapter 6

The Impact of Sentencing Guidelines

Structured sentencing reforms are designed to
change how the criminal justice system operates.
For example, sentencing guidelines are expected to
reduce unwarranted disparity at the sentencing
phase. Specifically, both the disposition decision
(prison versus probation or other community
sanctions) and duration (length of sentence or
time to be served in prison or in the community)
will become more predictable and equitable.
Furthermore, some States have implemented
guidelines to minimize the potential for prison
crowding by requiring the imposition of
imprisonment sanctions that can be managed in a
more diligent manner.

States that have adopted presumptive sentencing
guideline schemes might look different on a number
of key outcome measures, such as sentencing
disparity, use of incarceration, and prison
crowding, compared with States that have not
adopted such reforms. This chapter reviews
published studies and data that examine how
extensively sentencing guidelines have affected
these and other key issues.

Methodological Issues in Assessing Impact

Determining the impact of sentencing guidelines is
complicated by a number of methodological issues.
For example, measuring disparity and its sources
can be very complex. Prison crowding and
incarceration rates are the result not only of
sentencing decisions but also of law enforcement,
prosecutorial, and budget policies that are not
controlled by the courts or sentencing guidelines.
This section attempts to isolate the major factors
that confound assessment of the impact of
sentencing guidelines.

The criminal justice community lacks consensus on
the purpose and goals of structured sentencing.
Consequently, it is not clear whether all States
with guidelines should show effects in all of the
dimensions listed above. Minnesota, Washington,
North Carolina, and Oregon have stated that
guidelines are to be used to regulate the use of
prison space and to help avoid prison crowding.

Because the structure of guidelines varies among
the States, all sentencing guideline States cannot
be held equally accountable for affecting a
particular outcome measure. In assessing disparity
in departure rates, a State with a rather broad
range can succeed more easily than a State with a
rather narrow guideline range.

There is also a lack of stability in the structure
and content of sentencing guidelines over time.
Each year, many States modify their guidelines.
These modifications may diminish or enhance a
State's ability to achieve success in a particular
area. For example, there have been several
substantial modifications to the original
Minnesota, Washington, and Pennsylvania sentencing
guidelines. Such modifications in sentencing
policy make it difficult to conduct meaningful
time series analyses.

The objective of establishing control States, or
States that have not adopted structured
sentencing, whose results can be compared with
those of the structured sentencing States is not a
clear-cut task. Many States not defined as true
guideline States include varying degrees of
structured sentencing, such as determinate and
mandatory minimum sentencing provisions. Some
nonguideline jurisdictions have eliminated the use
of discretionary parole release, instituting many
mandatory minimum sentencing provisions.

In assessing the impact of guidelines on
sentencing disparity, researchers relied
exclusively on a review of the major studies
published by independent researchers or sentencing
commission staffs. To examine trends in the use of
incarceration, prison crowding, and public safety,
historical trend analyses were conducted for the
Federal guideline system and the four States
(Pennsylvania, Minnesota, Florida, and Washington)
that have had guidelines in place for the longest
time. These statistical trends were compared with
nonguideline States over the past two decades.

In selecting States for comparison with the four
guideline States, the following methodology was
used. For any outcome measure, trend data on the
four guideline States and all the nonguideline
States were analyzed for the years preceding the
adoption of guidelines. Nonguideline States with
similar historical trends on these outcome
measures were selected as comparison States. For
example, in assessing incarceration rate trends
for Minnesota, Minnesota's incarceration rate from
1971 to 1980 was analyzed. States having similar
incarceration rates over that time were used as
comparison States. This selection process
minimized the error of lumping all nonguideline
States into a single group.

Impact on Sentencing Disparity

Although jurisdictions may vary in their reasons
for initiating a sentencing guideline system,
almost all might argue that a primary goal of
sentencing guidelines is to reduce unwarranted
disparity in sentencing practices. Every
sentencing commission has claimed that its
guidelines have achieved some reduction in
sentencing disparities.

In evaluating disparity reduction, the preferred
research design would consist of a simple pre- and
posttest comparison of two samples of offenders.
The first sample represents offenders who were
sentenced under the preguideline sentencing
structure, with the second sample being similarly
situated offenders who were sentenced under the
newly instituted guidelines. Statistical
comparisons between the two samples are made on
comparable offense categories (as well as other
relevant factors such as prior criminal record and
victim attributes) to ensure that both samples are
statistically equivalent. Analyses can then be
made to determine whether the imposition of
sentences has become more standardized for the
guideline cases than was the case for preguideline
samples (i.e., less variance in case disposition
and sentence length).

Although this design appears straightforward,
several problems arise in its execution. A review
of a number of the limited studies on sentencing
disparity has pointed out three major
methodological problems.1 Sentencing practices may
have changed so drastically since the
dissemination of guidelines that similarly labeled
offenses may not mirror each other before and
after the use of guidelines. For example, to
circumvent the guidelines through plea bargaining,
less serious second-degree aggravated assaults
could result in less serious charges and residual
convictions for these crimes, resulting in a more
homogenous pool than existed before guidelines
were enacted. This increase in homogeneity will
give the appearance of increased uniformity in
sentencing practices. However, the guideline
assault cases will not truly represent the
preguideline assault cases.

In addition, because it is not possible to use an
experimental design in which a pool of offenders
is randomly assigned to either a guideline or a
nonguideline system, reductions in disparity that
would have occurred independently of the passage
of guidelines cannot be controlled for. This is
especially likely with the growing popularity of
numerous legislative actions such as mandatory
terms that require offenders convicted of specific
crimes to be imprisoned and spend a specific
amount of time incarcerated. A great deal of
determinacy may already have been achieved before
the guidelines were adopted.

The studies also tend to rely on simplistic
comparisons of crime and prior criminal history
categories now used by the guidelines for both
samples (before guidelines and under guidelines),
rather than a more sophisticated analysis of
sentencing factors that were relevant before the
preguideline cohort. For example, an offender's
employment status and age may have been relevant
under an indeterminant/rehabilitative sentencing
model, but now are excluded under guidelines.
Excluding these factors from the comparative
analyses almost ensures that the preguideline
sample will appear more disparate than the
guideline sample.

Finally, few sophisticated and independent
evaluations have been completed, with the
exception of the Minnesota and the U.S.
guidelines. Independent evaluations on disparity
reduction have not yet been published for Florida,
Oregon, Pennsylvania, Washington, and Delaware.
These States have relied instead on their own
analyses to conclude that disparity has been
reduced. In some instances, the claim is based on
a simple analysis of whether the court is
complying with the current guidelines rather than
on changes in sentencing practices based on a
preguideline cohort.

United States Sentencing Guidelines

One of the most detailed and sophisticated studies
on disparity was released by USSC in 1991. It
examines the short-term impacts of the Federal
guidelines system on unwarranted disparity in
sentencing, use of incarceration, and
prosecutorial discretion and plea bargaining.2
Using a variety of analytic techniques, the
Commission concluded that Federal guidelines have
reduced disparity and were generally well accepted
by a majority of the judges, prosecutors, and
probation officers. Only Federal public defenders
and private attorneys believed otherwise.
Nonetheless, the study has been the object of
controversy, with the soundness of the
Commission's methodology and its conclusions being
questioned.

The USSC study attempted to answer the following
question:

Does the range of sentences meted out for
defendants with similar criminal records convicted
of similar criminal conduct narrow as a result of
guideline implementation?3

To answer this question, eight categories of
offenses representing a cross-section of Federal
crimes were selected for quantitative analyses of
disparity reduction: four categories of robbery
(with or without weapon, combined with no criminal
history or moderate criminal history); two
categories of embezzlement ($10,000-$20,000 loss
and $20,000-$40,000 loss); heroin trafficking; and
cocaine trafficking. Two samples representing pre-
and postguideline cases were drawn.

In assessing disparity, two measures of sentence
lengths were examined: actual sentences imposed by
the court and time served (or to be served).
Actual time served was not always attainable
because some offenders had not served their entire
sentences. In those cases, length of stay was
estimated by using the presumptive parole date for
preguidelines cases and the sentence duration
minus the maximum amount of credit for good
behavior for guidelines cases. Researchers found
that the range of sentences, as indicated by the
middle 80 percent of cases, had narrowed for all
eight crime categories, although only three were
statistically significant.

These results generally demonstrated that under
the Federal guidelines, disparity had been reduced
and that for some crimes, the reduction was
substantial. However, a number of methodological
issues limit the strength of these findings.
Because USSC was attempting to ensure that pre-
and post-guideline offender groups were properly
matched on all relevant dimensions, the sample
sizes for the disparity analyses were quite small.
Although the total number of sample cases was
approximately 6,000, the sample sizes for offense
categories ranged from 13 to 44 cases
(preguidelines) and 24 to 81 cases
(postguidelines).

Cases in which the judges departed from the
guidelines because the offender provided
substantial assistance to the Government were
excluded from the analysis. In 1991 approximately
12 percent of all disposed cases resulted in
"downward departures for substantial assistance;"
the same type of departures reached 21 percent for
drug offense cases, while the overall departure
rate was 19 percent.4 Excluding these cases from
the analysis understates the level of disparity,
although the sentences are no longer considered
guidelines.

The fact that only three of the offense categories
showed statistically significant reductions in
disparity suggests that preguideline cases were
already exhibiting a relatively high degree of
uniformity in court disposition. Further declines
in sentencing discrepancy might have occurred
independently of the introduction of guidelines
and may be the product of chance.

The USSC survey of court officials found that
while Federal prosecutors and probation officers
believed disparity had decreased (51 and 52
percent, respectively), a majority of judges (56
percent), Federal defenders (68 percent), and
private attorneys (50 percent) reported that
disparity either increased or remained about the
same.5

As noted by Senior Circuit Judge Gerald Heaney,
assessing disparity reduction becomes more
complicated because the decision as to whether a
case is handled by either a State or Federal court
was not part of the study.6 Heaney notes that
local law enforcement agencies can file cases in
Federal court for certain crimes (especially drug
crimes) because convicted offenders are likely to
receive longer sentences in the Federal courts.
This discretionary local jurisdictional filing
decision has not been analyzed by any of the
studies of the Federal guidelines, yet it can
represent a major form of disparity in criminal
justice decisionmaking.

USSC recognized that its study was preliminary. At
the time of the study, guidelines had been in
effect for only 2 1/2 years. Consequently, when
the postguideline implementation cases were
selected, only 43-75 percent of Federal offenders
were sentenced according to the guidelines.7

The second major study of the Federal guidelines
was conducted by the U.S. General Accounting
Office (GAO), whose research consisted of
reanalyzing the USSC data. Although employing
different statistical methods, GAO agreed with
USSC that preliminary evidence indicated a
reduction in disparity. However, data limitations
prevented a determination of whether overall
sentencing disparity had been reduced. GAO was
especially interested in whether the influence of
demographic factors such as race, gender, and
education had been diminished. Data limitations
prevented this issue from being fully assessed:

Congress was particularly interested in reducing
or eliminating disparity caused by demographic
factors such as an offender's race, gender, and
education. However, limitations and
inconsistencies in the data available for
preguidelines and guidelines offenders made it
impossible to determine how effective the
sentencing guidelines have been in reducing
overall sentencing disparity.8

The GAO analysis attempted to group the sentence
differences into parts on the basis of
discrimination and legitimate factors. To do this,
GAO devised two regression models: a constrained
model, reflecting sentences under the guidelines;
and an unconstrained model, using only
statistically significant variables available to
sentencing judges and omitted from the guideline
scoring system. Under the constrained model, 25
percent of the racial gap in sentences among bank
robbers was caused by discrimination, whereas
under the unconstrained model, 48 percent of the
racial gap was caused by discrimination. The GAO
findings suggest that although the Federal
guidelines are responsible for reducing some
racial disparity in sentencing, the problem of
discrimination persists within the guideline
range.

Samuel Myers was especially concerned with the
racial disparity issue.9 His review of the
analyses of USSC and GAO led him to conclude that
racial inequities persist, although not always in
a consistent manner:

GAO computed odds ratios for the chances that a
black versus a white offender received a sentence
which fell below the guideline minimum for the
convicted crime, or at the top, bottom or middle
of the guideline range.... [The] report
suggests wide variations across crimes, with
blacks more often than whites receiving top of the
range and above the range sentences for robbery,
but at the same time within range and bottom of
the range sentences for cocaine distribution....
The GAO also performed a residual difference
analysis of Federal sentences for black and white
bank robbers sentenced in the fiscal year of 1990.
On average, blacks served about ten percent longer
sentences than whites. In jury trials, the reverse
was true; whites received longer sentences.10

Two studies have shed further light on the issue
of racial disparity under the USSC guidelines,
casting doubt on the quantity ratio established by
Congress in the mandatory minimum penalties.11
Both studies center on USSC penalties imposed for
possession or sale of crack cocaine. Under the
Anti-Drug Abuse Act of 1986 and before guidelines
were implemented, Congress modified the penal code
to allow for much more severe sentences for drug
crimes involving crack cocaine than for crimes
involving powdered cocaine. In general, persons
convicted of possessing or trafficking in 50 grams
or more of crack cocaine would receive a prison
term of not less than 10 years. If the offender
had a prior drug conviction, the sentence would be
not less than 20 years. If the amount of crack
cocaine was at least 5 grams but less than 50
grams, the sentence would be at least 5 years, or
10 years with prior drug crime convictions. These
same penalties would apply to offenders if they
had 100 times these amounts of powdered cocaine.

Berk and Campbell analyzed Federal charging
practices in the Los Angeles area for crack
cocaine.12 In California the Federal crack cocaine
penalties are much more severe than those under
the State's determinate sentencing laws.
Consequently, the prosecutor's discretion to try a
case in Federal court represents a major source of
unwarranted disparity. The researchers found that
in Los Angeles, while African-Americans represent
58 percent (n=1,801) of all arrests and 53 percent
(n=4,410) of State prosecutions for crack cocaine,
they account for 83 percent (n=36) of Federal
prosecutions. In contrast, Caucasians represented
3 percent (n=56) of arrests and 3 percent (n=222)
of State prosecutions, but zero Federal
prosecutions.

McDonald and Carlson conducted a pre- and
postguideline analysis of sentencing in the
Federal courts by race. They found that prior to
guideline implementation, there were no
differences between race/ethnicity and sentences
imposed:

Fifty-four percent of all white as well as black
offenders in these cases were given prison
sentences that were comparable in length; a
maximum of 50 months, on average, for whites, and
53 months for blacks. Hispanics were more likely
to be imprisoned (69 percent), but their sentence
lengths averaged approximately the same length: 52
months.13

Since guidelines were adopted, however, the
proportion of African-Americans and Hispanics
sentenced to prison by 1990 had grown to 78 and 85
percent, respectively, compared with a 72-percent
increase for Caucasians. African-Americans
sentenced to prison received an average sentence
length of 71 months, compared with 50 months for
Caucasians and 48 months for Hispanics.

The researchers attribute most of these
differences to the 1986 drug sentencing laws and
the USSC guidelines. Between 1986 and 1990, the
proportion of African-Americans sentenced for drug
trafficking grew from 19 percent to 46 percent,
compared with 26 percent to 35 percent for
Caucasians.

In evaluating the source of this disparity among
African-Americans and Caucasians, the authors
identified the source of disparity as the crack
cocaine drug laws:

Among cocaine traffickers, however, there were
substantial differences. Blacks were imprisoned
somewhat more frequently than Caucasians (96.7
percent versus 94.1 percent), and their sentences
were significantly longer, on average: 102 months
versus 74 months--a 37 percent difference.14

Because African-Americans constituted 83 percent
of the crack cocaine trafficking cases, they were
disproportionately sentenced to prison and
received far longer prison terms than Caucasians:

These and other analyses not reported here lead us
to conclude that the source of the differences in
sentencing of blacks and whites under the
guidelines was not invidious discrimination by
judges at the point of sentencing. Instead, the
primary reasons were the predominance of blacks in
Federal crack trafficking cases, and Congress's
decision to punish crack cocaine severely.15

The widespread use of mandatory minimum penalties
illustrates how sentencing reforms external to the
guidelines themselves can negate gains in reducing
disparity. The USSC conducted a study of the
effects of these mandatory minimum penalties on
sentencing disparity and found that they were not
applied in a uniform manner. On the basis of its
analysis, USSC reached the following conclusion:

Despite the expectation that mandatory minimum
sentences would be applied to all cases that meet
statutory criteria of eligibility, the available
data suggest that this is not the case. The lack
of uniform application creates unwarranted
disparity in sentencing, and compromises the
potential for the guidelines sentencing system to
reduce disparity.16

The use of departures within the Federal system is
another issue for consideration. After 5 years of
nationwide guideline implementation, one of the
more disturbing trends in the Federal system has
been an increase in the annual rate of downward
departures based on substantial assistance
provided to authorities by offenders (also known
as cooperation). Before substantial assistance
departures can be made, a motion must be filed by
the Government in court, outlining the defendant's
assistance. In 1989 the substantial assistance
departure rate was 5.8 percent, rising to 7.5
percent in 1990, 11.9 percent in 1991, 15.1
percent in 1992, and 16.9 percent in 1993.17
Depending on which defendants the government
decides should receive motions for downward
departure, considerable disparity could be brought
back into the system. The U.S. Sentencing
Commission is conducting a major study of these
departures, with a report expected in January
1996.

Collectively, results of all the studies described
in this chapter suggest that the USSC guidelines
have reduced disparity but that more research is
needed to better understand the overall impact on
sentencing disparity reduction. The extent of
racial disparity in the use of incarceration has
worsened under the mandatory minimum-driven drug
guidelines, with dramatically increased penalties
for which African-Americans are disproportionately
arrested and convicted.

Minnesota Sentencing Guidelines

Much research has been conducted on the effects of
Minnesota's guidelines, with the most thorough
study having been completed by the Minnesota
Sentencing Guidelines Commission (MSGC) in 1984.
The MSGC evaluation used a preguidelines sample
(1978) and several postimplementation samples
(1981-1983) to assess impact on sentencing
practices. Using a measure of grid variance, MSGC
found that greater uniformity was achieved by the
guidelines than by the previous indeterminate
system. Part of this achievement could be
attributed to the low level of departures from the
prescribed guideline-based dispositions.
Initially, only 6.2 percent of the cases departed
from the guidelines and did so in no singular
direction. However, departure rates increased
slightly during the succeeding 2 years, from 6.2
to 8.9 percent.

An article published by Stolzenberg and D'Alessio
provides further evidence that the early gains in
reducing disparity have slowly eroded. In their
analysis of sentencing practices between 1977 and
1989, the authors found that disparity in the
length of sentence decision has been reduced by 60
percent.18 However, for the prison disposition
decision, substantial gains realized immediately
after guideline implementation have not been
maintained. The estimated reduction for the in/out
decision is only 18 percent and is approaching
preguidelines levels.

Regarding sentencing neutrality, "there were only
marginal gains."19 While dispositions for
African-Americans and Native Americans were more
uniform than they were before the guidelines,
reductions in sentencing variations for these
minorities were less than reductions for
Caucasians. Minority offenders continued to
receive somewhat harsher sanctions than Caucasian
offenders, even when offense severity and criminal
history are controlled for. Employment status
continued to be associated with sentence length.
Sentences for imprisoned women averaged 7 months
less than those for similarly situated male
prisoners. Nonetheless, it is generally agreed
that racial and gender disparity have declined
modestly under the guidelines.20

Washington Sentencing Guidelines

The Washington State Sentencing guidelines were
intended to ensure long-term imprisonment for
violent offenders, community sanctions for
property offenders, and greater equity in the
sentencing process. Neutrality in sentencing was a
major goal stated in the Sentencing Reform Act
(SRA), which required application of the
guidelines to all offenders equally, without
regard to any offender characteristics except for
offense severity and criminal record.

Reviewing the State's first 10 years' experience
with sentencing guidelines, the Washington
Sentencing Guidelines Commission (WSGC) concluded:

The high degree of compliance with sentencing
guidelines has reduced variability in sentencing
among counties and among judges. Moreover, the
great majority of sentences fall within the
standard ranges, and they tend to be gender and
ethnicity neutral.21

This conclusion was supported by earlier findings
that little disparity was found in the lengths of
sentences imposed for nondeparture sentences (87
percent of all sentences fell within the standard
sentencing range).22 In general, the guidelines
have produced the desired results: higher
probabilities and longer sentences for persons
convicted of violent crimes, less imprisonment for
property crimes, and high compliance with the
guidelines.

African-American offenders received longer
sentences than Caucasians, but these differences
were attributed to ethnic differences in the
offense seriousness level and overall offender
score patterns. Results were confirmed by imposing
the average sentence lengths received by
Caucasians in various crime and criminal history
categories on similarly situated African-American
offenders.

Although evidence failed to show systematic ethnic
disparity among nondeparture cases, substantial
disparity according to ethnicity and race was
revealed in the use of the First-Time Offender
Waiver (FTOW) and the Special Sexual Offender
Sentencing Alternative (SSOSA)23. Both of these
sentencing dispositions can be used by the judge
to depart from the guideline-based sentences.
Although these are not viewed as departures, they
are frequently invoked. For example, in FY 1992,
13 percent of all sentences were FTOW, with
another 2 percent being SSOSA.24 In 1987, only 8
percent of all cases received such a sentence.

Caucasians were three times as likely as
African-Americans and half as likely as other
minorities to receive a FTOW sentence below the
standard sentencing range. Caucasians were also
four times as likely as African-Americans and
twice as likely as other minorities to receive a
suspended sentence under SSOSA. The disparity in
FTOW and SSOSA departures could be partly
explained by the lack of treatment programs and
other resources provided for minority defendants,
but nontreatment alone cannot account for most of
the disparity in the frequency of these
departures.

The Washington report also examined gender
disparity in sentencing and found that females
systematically received shorter sentences, even
when studies controlled for crime severity and
criminal history. Females were more than twice as
likely as males to receive a downward departure
through the FTOW.

Oregon Sentencing Guidelines

Oregon's Criminal Justice Council (OCJC) has also
compared cases sentenced prior to and after
guidelines went into effect in 1986. The
first-year report on Oregon's sentencing
guidelines compared the two samples and reached
the following conclusion:

. . . [G]uidelines have increased uniformity in
sentencing substantially. Dispositional
variability for offenders with identical crime
seriousness and criminal history scores has been
reduced by 45 percent over the variability under
the pre-guidelines system.25

This statement was based on a computation of the
same grid variance used by Minnesota and
Washington in their evaluations. As was done in
Minnesota, researchers applied the guideline grid
criteria to both the pre- and postguideline
implementation samples. For the 1986 sample, the
grid variance equalled 0.100, while the guideline
cases had a grid variance of 0.045. On the basis
of these two statistics, the OCJC concluded that 
"... since the guidelines went into effect, the
degree of dispositional uniformity has increased
by 55 percent."26 According to the OCJC, this
level of improvement in dispositional uniformity
was similar to levels reported by Minnesota and
Washington (54 percent and 73 percent,
respectively).27 No pre- and posttests were
conducted on variance reductions in sentence
length or estimated time served.

The first report found that sentencing disparity
by race and gender had been reduced. However,
"significant racial and gender disparity
continues" for those cases that are based on the
two sentencing options for which judges have
discretion: optional probation and sentencing
departures (approximately 9 percent of all cases
sentenced were one of these two options).

The third-year report was based on 1992 cases
sentenced under the guidelines and notes that the
departure rate steadily increased (from 6 percent
in 1990 to 10 percent in 1992). The report also
makes a more definitive statement that racial and
gender disparity persists under the guidelines:

Generally, men were convicted of more serious
offenses and had more serious criminal histories
than women. Minorities were convicted of more
serious offenses and had more serious criminal
histories than whites. Under guidelines, the
presumptive sentence is based on an offender's
crime seriousness and criminal history
classification. Thus, male and minority offenders
were more likely to have a presumptive sentence of
prison. And, actual imprisonment rates were higher
for men and minorities.28

The report also found that:

Sentencing disparity is not entirely due to
differences in current and prior conviction
offenses. More details are needed on the crimes of
conviction to determine if the specifics of the
offender's criminal acts are the source of the
disparity in sentencing.29

While differences in sentencing severity have been
reduced among regions of the State, they persist.

Pennsylvania and Delaware Sentencing Guidelines

Neither Pennsylvania nor Delaware have conducted a
pre- and postguidelines implementation study; they
have focused instead on consistency within the
State and/or compliance to guideline criteria. In
Delaware, three studies have found that the
guidelines have succeeded in sentencing more
violent offenders to prison and increasing the
number of nonviolent offenders sentenced to
intermediate sanctions.30

In Pennsylvania, the Commission staff found high
levels of compliance and disparity among the
counties having declined since the guidelines were
implemented.31 The results of several analyses of
sentencing under Pennsylvania's guidelines have
shown a pattern similar to that in Washington and
Oregon.32 Although the factors prescribed by
guidelines (offense severity, prior record) were
overwhelmingly the strongest predictors of
sentencing outcomes, significant differences exist
by race, gender, region of the State (e.g., rural
versus urban), and sentencing differences between
those who plead guilty and those convicted by jury
trial are especially great. Dispositional
departures below guidelines were a substantial
contributor to differences in gender and race.

Summary of Disparity Findings

There is substantial evidence to show that
sentencing disparity has been reduced by
presumptive guidelines in several jurisdictions.
However, there is also evidence to show that some
of the early progress achieved in these States may
be slowly eroding. Tonry concludes that although
sentencing disparity has "most likely" been
reduced, " . . . the evaluation research evidence
on this question is less definitive than it
appears or than its celebrants claim."33

One common theme among researchers' findings is
that guideline departures--especially departures
below guidelines--significantly contribute to
disparity and especially race and/or gender
sentencing disparities.34 That is, Caucasians and
females are more likely to receive departures
below guidelines and less likely to receive
departures above guidelines. Similarly, Caucasians
are more likely to receive options that are not
officially labeled as departures but serve the
same function.

Data summarize the departure rates for five States
and the Federal guidelines as assembled by
Tonry.35 Standard sentences are shown applied to
75-80 percent of all cases, and the vast majority
of departures are below the guidelines. As long as
departure rates remain at this level and in a
downward direction, the question of disparity
reduction remains somewhat clouded.

Impact on Plea Bargaining

Some feared that guidelines would give prosecutors
a disproportionate level of discretion over
sentencing and result in more charge bargaining.36
However, limited research as well as anecdotal
evidence indicates that this fear is unfounded.

For example, Miethe reports that, after guidelines
were instituted in Minnesota, prosecutors did not
engage in greater charge bargaining and sentence
bargaining cases did not show greater race or
class disparity than those prior to guidelines.37
Cirillo,38 Ulmer and Kramer,39 and Ulmer40 found
that Pennsylvania's "looser" guidelines allowed
many "windows of discretion" beyond the charging
stage, such as mitigated- and aggravated-range
sentences and relatively easy departures, that
allowed judges ample sentencing discretion and
power in the courtroom. In Washington, there has
been no noticeable increase in trial rates.41

Evidence exists, however, that mandatory minimum
penalties produce greater charge bargaining,
disproportionate prosecutorial power, and hidden
disparities. The USSC concluded that mandatory
minimums are not being applied uniformly and have
granted more discretion to prosecutors.42 Austin
found that Florida's habitual sentencing law was
applied in only 20 percent of the cases that met
the criteria for being "habitualized" and that
African-Americans were nearly twice as likely as
Caucasians to receive such a sentence.43

There is a trade-off between allowing courts to
alter sentences to reflect unusual circumstances
and reducing disparities in sentencing. By
radically constricting judicial discretion,
mandatory minimum penalties severely constrain the
sentencing process and move the locus of disparity
to the charging stage, where it is less visible.

Impact on Incarceration Rates

The States with presumptive guidelines and the
USSC have shown higher incarceration rates since
guidelines were implemented. However, all States,
regardless of their sentencing structure, have
experienced increases in their incarceration
rates. Contributing to this growth is an increase
in the certainty and length of incarceration for
persons convicted of violent crimes and drug
violations. At the same time, some States'
guidelines reduce the length of imprisonment for
nonviolent offenders to offset the effects of more
punitive sentences for violent, drug, and repeat
offenders on prison population growth. The
following pages contain a comparison of trends in
incarceration rates in four States that have
sentencing guidelines with trends in States
without guidelines.

It should be noted that prison population growth
is driven by two basic forces--admissions and
length of stay (LOS). Sentencing guidelines affect
admissions and LOS, but they are not the only
factors. Prison admissions are also influenced by
demographic trends, crime rates, arrest practices,
and prosecutorial policies. In some guideline
States, the offender's LOS is regulated by
good-time (both statutory and discretionary) and
parole boards that remain outside the domain of
sentencing commissions. Also, there may be
considerable legislative activity, such as
mandatory prison terms and/or adoption of "truth
in sentencing" provisions, that affect admissions
and LOS. For these reasons, sentencing guidelines
or sentencing structures are not the sole cause of
incarceration rates.

Data summarize rates of incarceration (the number
of persons in prison on any given day per 100,000
U.S. population) for the Nation and the four
guideline States. On a national level,
incarceration rates have increased dramatically
over the past two decades. The four guideline
States have also increased their incarceration
rates, but not always in line with the national
trends.

The guideline States vary substantially in their
preguideline incarceration rates. Florida has
traditionally had very high rates, Pennsylvania
and Washington reported moderate rates, and
Minnesota has historically had a low incarceration
rate. After each State adopted its guidelines,
these trends persisted, with some variations.

Washington has experienced a very modest increase
since its guidelines were introduced in 1983. This
low-growth pattern, however, masks a long-term
trend that has not yet materialized. Washington's
guidelines, along with several State supreme court
rulings, were intended to reduce the rate and
length of imprisonment for persons convicted of
property and drug possession crimes. Counteracting
that trend was the policy of substantially
increasing prison terms for inmates convicted of
violent and sex crimes. The overall effect was an
immediate decline in prison population followed by
a substantial increase that is projected to
continue well into the future as the violent
offenders sentenced for longer terms begin to
"stack up" in the prisons.

Florida has substantially increased its
incarceration rate since adopting guidelines. The
Florida trends would have been even higher were it
not for a consent decree and subsequent
legislation that required the State to maintain
its inmate population at 98.5 percent of its
prison-bed capacity. This restriction resulted in
Florida's well-publicized early release program
(referred to as Controlled Release) to keep the
prison population within its rated capacity.44

Pennsylvania, while maintaining relatively
moderate incarceration rates compared to Florida,
also experienced an increased rate after adopting
guidelines. This growth pattern is not surprising
since Pennsylvania's guidelines were not designed
to address prison crowding.

Minnesota, which did link its guidelines to
correctional resources, has shown the lowest rate
of growth. In fact there was virtually no growth
until 1985. Since then, the State's incarceration
rate has increased. This may be explained in part
by major revisions to the guidelines that were
adopted in 1988--revisions that were intended to
make the guidelines more punitive for offenders
convicted of violent crimes.45

The impact of guidelines on incarceration rates
can be seen by contrasting two States that linked
their guidelines to correctional resources
(Minnesota and Washington) with States that have
comparable preguideline incarceration rate trends.
Both Minnesota and Washington fared far better
than the nonguideline States. These data prove
that guidelines can have a moderating effect on
the use of imprisonment if they are designed to
accomplish that goal.

Impact on Prison Crowding

As incarceration rates have increased, what has
been the effect on prison crowding? Do sentencing
guidelines have any effect on prison overcrowding?
Do they exacerbate or relieve the problem?

To answer these questions, the rates of crowding
were examined, using data provided by the U.S.
Department of Justice's Bureau of Justice
Statistics (BJS). Unfortunately, national and
individual State prison capacity data were not
reported in a standardized format until 1983.
Consequently, it is not possible to compare the
magnitude of overcrowding before and after the
implementation of guidelines, as was done for
incarceration rates.

The BJS data use two measures of prison capacity.
One is based on the State's highest bed capacity
figure, which may include a State's temporary,
operating, or emergency bed capacity. The lowest
capacity figure often reflects the design capacity
of the system. However, in some instances, States
have reported the same figure for both lowest and
highest bed capacity.46

Data report the crowding ratios (prison population
divided by prison capacity) for the four guideline
States since 1983 (ratios above 100 reflect a
crowding situation). Here again there are
important differences among the four States.
Pennsylvania, which did not require the guidelines
to take capacity into account, has had the worst
overcrowding problem; its prison population has
always exceeded its prison capacity, starting at
122 percent and climbing to approximately 150
percent.

Prison crowding in Washington has fluctuated along
with its prison population due to its guidelines,
two State supreme court decisions, and numerous
amendments to the SRA that increased penalties. As
indicated earlier, there was a considerable drop
in the inmate population during the first few
years of the SRA up through 1988. Supreme court
decisions and the guidelines allowed many inmates
to serve shorter prison terms or no terms at all.
Consequently, Washington had excess capacity and
became well known throughout the Nation as a State
with excessive capacity that would rent cells to
other States to keep its prisons full and make
money. However, since 1988, as the long-term
effects of its sentencing guidelines have taken
hold, and its prison population has grown,
Washington's crowding situation has worsened. This
trend is expected to continue to deteriorate over
the next decade. Furthermore, the Washington State
Guidelines Commission noted that jail crowding has
worsened under the guidelines and has concluded
that the objective of making "frugal use of the
State's resources" has not been met.47

Florida has succeeded in keeping its prison system
from overcrowding, despite its sentencing
guidelines. As noted earlier, a court order that
later became law required that the prison
population not exceed bed capacity. As a result,
the system remained uncrowded because pressures
created by the guidelines and mandatory minimum
sentencing laws were offset by a massive early
release program.48

Only Minnesota has been able to provide adequate
capacity for its prison inmates over a sustained
period of time. However, as the prison population
began to exceed its rated capacity beginning in
1991, its early success seemed to wane. Moreover,
Minnesota never had a prison crowding problem to
be solved. An earlier review by Austin pointed out
that before guidelines were enacted, Minnesota was
not experiencing overcrowding:

Prior to the implementation of the guidelines,
Minnesota's prison population had never exceeded
its bed capacity and has traditionally reported
one of the nation's lowest state incarceration
rates. Due to a surplus of beds, the state has
been housing several hundred inmates from
Wisconsin and the Federal Bureau of Prisons in
their facilities since 1980. A new maximum
security facility (Oak Park Heights) was brought
on line in 1983 which further added capacity to
the State prison system. Thus, in many ways, the
inclusion of prison capacity as a basis for
setting guideline criteria may have reflected a
long standing Minnesota tradition to not overcrowd
its prisons regardless of sentencing structure.49

Minnesota's success in avoiding prison
overcrowding, then, is not linked solely to
guidelines for two reasons. First, before
guidelines were enacted, no prison crowding
problem existed. Second, since the guidelines were
modified significantly in 1989 to increase prison
terms for certain offenses, incarceration rates
have increased and the prison system has become
more crowded. These same modifications were made
to appease a strong movement to abolish the
guidelines and institute mandatory minimum
penalties--a movement that was barely defeated.
The reform also created two discretionary release
programs under the control of the Department of
Corrections that threaten the new-found goal of
"truth in sentencing."50

Data pool the results of Minnesota and Washington
with the rest of the Nation's prison systems and
show little difference between guideline and
nonguideline States. The finding that guidelines
by themselves are not a sufficient condition for
controlling prison crowding is clearly shown in
data, which present States that have prison
populations below their rated capacity. Of the 15
States listed, 5 are guideline States. Of the five
guideline States, two (Louisiana and Utah) have
had voluntary/advisory guidelines since 1992.
Clearly, prison crowding can be controlled with or
without guidelines.

Projected Prison Populations for Guidelines States

To what extent will guideline States experience
future prison population growth and crowding? To
answer this question, researchers examined prison
population projections that were available for
seven different sentencing guideline States and
the Federal Bureau of Prisons. These population
projections are the latest official forecasts of
prison growth for each system.

In each case, the prison population is expected to
grow, and most will continue to be overcrowded
unless capacity is increased. The specific trends
for each jurisdiction are as follows:

o The population of the Federal Bureau of Prisons
is projected to increase by 22,546 inmates from
1995 to 1999 and by 33,635 inmates by the year
2002. The Federal system is projected to decrease
the level of overcrowding by increasing its bed
capacity by 37,714 beds from 1995 to 1999 and by
52,500 beds for the year 2002. Nonetheless, the
Federal system will have 4,657 fewer beds than
required by the year 2002.

o Florida is projected to have 83,802 inmates by
1998 from its projected 1995 population of 74,669.
However, its bed capacity is projected to reach
only 59,556 in 1998, resulting in a shortfall of
24,246 beds.

o Minnesota's prison population will grow to 5,848
inmates in the year 2002, but the State will have
a capacity of only 4,105 beds. Unless substantial
increases are made to the State's bed capacity,
Minnesota will soon break its long tradition of
being uncrowded.

o North Carolina's prison population is projected
to increase from 24,968 inmates in 1995 to 32,084
inmates by the year 2003. The 1995 capacity of
24,136 beds is projected to increase to 28,247
beds by 1997 and remain constant, resulting in a
bed shortage of 3,837 in the year 2003.

o The prison population in Oregon is projected to
grow from 6,555 in October 1993 to 7,333 inmates
in July 1995.

o Pennsylvania is anticipating prison population
growth from 29,667 in 1995 to 33,154 by the year
2000. The projected bed capacity for the same year
is 24,910, resulting in a shortfall of 8,244 beds.

o The prison population for Tennessee will grow
from 14,571 inmates in 1993 to 17,328 in 1996. The
projected capacity will be 15,979 in 1996,
creating a shortfall of 1,349 beds.

o Washington's prison population is projected to
grow from 10,683 in 1994 to 14,121 inmates by the
year 2000. Unless more bed capacity is planned and
constructed, there will be a shortfall of 2,528
beds.

At least two of these guideline States have been
forced to use early release programs in the past
to relieve overcrowding. As indicated earlier,
Florida has a program called Controlled Release.
Although a number of legislative restrictions keep
many inmates from being released early, the
program awards credits to some inmates on a
discretionary basis to accelerate release dates
and thereby reduce lengths of stay. Tennessee
reduces time served by using a Safety Valve
program that reduces lengths of stay until first
parole eligibility.51

In summary, unless prison capacity is increased
significantly or current sentencing laws are
modified, guideline States will be forced either
to live with overcrowded facilities or implement
early release programs that invariably preclude
achieving the objective of reducing disparity.
However, it can be argued that these trends would
have been far worse had guidelines not been in
place. Although there are no published studies to
verify this claim, data provided by the North
Carolina sentencing commission show that, without
guidelines, the State's future crowding problem
would be far greater.

Impact on Public Safety and Crime Rates

The issue of whether sentencing guidelines (or
other forms of structured sentencing) should
result in reduced crime rates remains somewhat
controversial. Certainly, a number of State
guideline systems promote public safety as one of
the purposes of sentencing. How sentencing
commissions define public safety and incorporate
it into their guideline systems, however, may be
quite different from how public safety is
understood by legislative bodies and the general
public. For example, some argue that removing
violent offenders from the community increases
public safety; others argue that targeting violent
offenders or those likely to commit multiple
offenses for long prison terms reduces the crime
rate and therefore increases public safety.

Sentencing commissions argue that although
guidelines can identify offenders who pose the
greatest threat to society and provide sufficient
penalties to remove them from society for long
periods of time, sentencing is one of the final
stages in a complex criminal justice system and
should not shoulder the burden for reducing crime
rates. Decisions at the reporting, arrest,
charging, and plea bargaining stages play equally
important roles in determining whether crime rates
will change.

Despite politicians' hopes that sentencing reform,
and in particular the increased use of
incarceration through sentencing, will reduce
crime,52 States should not be lulled into the
belief that this reform can solve the crime
problem or even necessarily reduce State crime
rates. By selectively incapacitating those
offenders who pose the greatest threat to society,
some crimes may be averted and public protection
enhanced. Generally, States with guidelines strive
to ensure public safety by targeting violent and
career offenders for lengthy prison stays.
However, no State has formally claimed that
guidelines will measurably reduce crime rates or
set as one of its guideline goals the reduction of
crime rates.

The attempt to link crime reduction to sentencing
structure is further weakened by the realization
that guidelines tend to discriminate among
offenders for sentencing dispositions based on two
factors unrelated to criminal careers. The
first-time youthful offender is likely to receive
a very brief period of incarceration even though
that person poses a far greater risk to public
safety because of age, sex, employment, marital
status, education, drug use, and residence,
factors unrelated to criminal careers but not
incorporated in the guidelines. At the same time,
an older offender with a long history of arrests
and convictions is more likely to receive a far
longer prison term even though that person is now
"burning out" of his/her criminal career. Such a
sentencing policy will fill a State's prison
system with less risky and older inmates, thus
diminishing possible incapacitation and subsequent
crime effects.

In his recent study of Federal prisoner recidivism
rates, Harer points out that a significant portion
of drug offenders, who are now receiving far
longer prison terms under the mandatory minimum
sentencing guidelines for drug offenses, are very
low risks to public safety. He questions these
lengthy mandatory prison terms as an effective
crime control strategy.

. . . [I]t does seem clear that by imposing longer
sentences on low-risk drug traffickers, there has
been a substantial increase in retribution with
little, if any, reduced sentencing disparity, or
increased incapacitation, deterrent, or
rehabilitation value and a huge increase in
taxpayer dollars spent.53

Because sentencing policies deal with a small
subset of those who enter the criminal justice
system, increases in incarceration are likely to
affect crime rates only marginally. Consequently,
the influence of sentencing guidelines on crime
rates is extremely limited. It may be useful to
demonstrate this limited influence by examining
the relationship between adoption of sentencing
guidelines and changes in crime rates. Although
such an examination cannot attribute a causal
relationship, it may illuminate the degree to
which any sentencing reform can reliably affect
crime rates.

Data show crime rates for four guideline States:
Minnesota, Pennsylvania, Washington, and Florida.
These States were selected based on the same
criteria as described in the previous section. The
crime measures used were extracted from the
Uniform Crime Reports (UCR), which include eight
crime categories reported by the public to the
police and tabulated by the FBI. Violent crime, as
defined in the UCR, is composed of four offenses:
murder and nonnegligent manslaughter, forcible
rape, robbery, and aggravated assault. The other
major crime category, property crime, includes
burglary, larceny-theft, motor vehicle theft, and
arson. The rates described in this analysis are
based on the number of crimes per 100,000 total
population.

Minnesota and Pennsylvania had lower crime rates
than Washington and Florida. Between 1970 and
1980, crime rates increased. Since then, crime
rates have remained relatively constant or have
declined slightly. In general, these trends are
similar to national trends. The dip in crime rates
from 1980 to 1983 was similar for all guideline
States even though they implemented guidelines in
differing years. After years of steady increase
starting in 1983, Washington has experienced a
moderate decline since 1987, the year it
implemented its guidelines.

Comparisons of total crime rates between guideline
and nonguideline States that had similar crime
rates show few differences. The slight increase
after 1983 for the guideline States is wholly
attributable to Florida (total and violent crime
rates) and Minnesota (violent crime rates only).

As expected, this analysis suggests that the
adoption of guidelines or other sentencing models
has had little measurable impact on overall crime
rates. This lack of impact, however, should not be
viewed as a failure of sentencing reforms or
guidelines.

With improved reliability in State sentencing
information during and following guideline
implementation, States are better able to identify
those violent and career criminals who invoke the
greatest fear and to focus scarce correctional
resources on those offenders.

Summary

This chapter has examined the available evidence
regarding the impact of guidelines on disparity,
plea bargaining, incarceration rates, prison
growth, prison overcrowding, and crime rates. For
those States that have conducted evaluations,
clear evidence exists that guidelines have
succeeded in changing historic sentencing
patterns. The probability of prison and the length
of imprisonment have increased for persons
convicted of violent crimes and/or repeat
offenders but have decreased for persons convicted
of property crimes. Following is a summary of the
general findings contained in this chapter.

Sentencing Disparity

While a number of methodological problems exist in
evaluating the impact of guidelines on disparity,
those States that have examined disparity show
improvement under the guidelines. Compliance rates
are high, and substantial evidence suggests that
sentencing disparity has been reduced in States
with guidelines. However, the growing frequency of
departures and potential increased reliance on
mandatory minimum penalties may threaten those
gains in disparity reduction.

Plea Bargaining

Limited research and anecdotal evidence indicate
that guidelines have not increased charge
bargaining and, contrary to some expectations,
have not shifted sentencing discretion to
prosecutors. Evidence suggests, however, that
mandatory minimum penalties produce greater charge
bargaining, increased prosecutorial discretion,
and hidden disparities, particularly among racial
and ethnic groups.

Imprisonment Rates

States with guidelines have significantly
increased their incarceration rates as have all
other States. However, the growth in imprisonment
rates was far lower for the two States (Minnesota
and Washington) that had established guidelines
with the goal of managing prison populations.
Consequently, evidence indicates that guidelines
can have a moderating effect on the use of
imprisonment if they are designed to accomplish
that end.

Prison Overcrowding

Guideline States, like most other States, have
experienced significant prison overcrowding. Only
Minnesota and Florida have had some success in
keeping prison crowding under control, possibly
because of factors beyond sentencing guidelines.
By statute, Florida must provide sufficient bed
capacity in its prisons, and Minnesota had no
overcrowding problem at the time its guidelines
were implemented. In general, guideline systems
attempt to regulate prison population at the front
end through determinate sentencing policies rather
than at the back end through discretionary
release. Each State must decide on the purposes of
sentencing; however, without some attention to
prison overcrowding, the elimination of parole and
other discretionary release mechanisms likely will
result in serious prison overcrowding.

Prison Populations

As in the rest of the Nation, prison populations
are projected to grow in States with sentencing
guidelines. To avoid overcrowding, these States
will have to add more prison capacity or adjust
their guidelines to reduce prison lengths and/or
prison admissions. Without these changes,
overcrowding conditions probably will continue,
and some States may be forced to reintroduce
discretionary release practices.

Crime Rates

Although no guideline State suggests that its
sentencing structure reduces crime rates, some
proponents of structured sentencing hope for a
beneficial impact on crime. This limited analysis
finds no evidence that guidelines or other forms
of structured sentencing have measurably reduced
crime rates. Few differences in crime rates exist
between guideline and nonguideline States. Under
guidelines, however, States attempt to provide
greater public safety through sentencing policies
tailored to ensure that violent and career
offenders are more likely to be incarcerated and
incarcerated for longer periods of time.

In summary, considerable progress has been made
through sentencing guidelines, but much work
remains. Tonry, a long-time evaluator of
sentencing reform, concluded:

Some commissions have operated much as Judge
Frankel hoped they would; they have achieved and
maintained specialized institutional competence,
have to a degree insulated sentencing policy from
short-term "crime of the week" political
pressures, and have maintained a focus on
comprehensive systemwide policy making. Guidelines
promulgated by commissions have altered sentencing
patterns and practices, and have shown that
policies can be linked to correctional and other
resources, thereby enhancing governmental
accountability and protecting the public purse.54

Simply stated, the success of guidelines depends
on their design, purpose, and implementation.
Guidelines will not solve all the problems of
dispensing justice and reducing crime. As this
chapter shows, however, some guideline systems
have been instrumental in altering sentencing
policies, setting resource priorities, reducing
disparity, and helping to manage prison
populations.

It is important to note the relative absence of
research on these important topics. The lack of
rigorous studies that employ pre- and
postguideline samples of disparity is striking.
Only three States and the USSC have provided the
field with such studies. Given the high priority
that States place on reducing unwarranted
disparity and given the fact that many States are
adopting guideline systems, now is the time to
launch a series of such studies.

A related need is to conduct more comprehensive
studies on whether guidelines have altered plea
bargaining practices and whether they enhance the
influence of prosecutors by shifting discretion
from the courts to the prosecution. Such studies
should consist of both quantitative and
qualitative methods (interviews and observations
of the plea bargaining process) to determine
whether disparity has been reduced throughout the
entire system or has simply been displaced. The
growing number of African-Americans and Hispanics
being incarcerated also needs to be addressed in
terms of whether guidelines and/or mandatory
minimum penalties are contributing to racial
disparity at the points of charging and
sentencing.

Finally, studies are required to document the
extent to which the attributes of the prison and
nonprison populations have been altered and the
consequences of such changes on prison management.
If guidelines result in nonviolent offenders'
receiving very short or no prison terms while
violent and repeat offenders are incarcerated more
frequently and for longer periods of time, prison
populations will look very different in the
future. How these changes will affect the number
and type of prison beds, along with the need for
special housing units and services (medical,
administrative segregation, and protective custody
populations), needs to be understood.

------------------------------

Notes

1. Tonry, M. "Sentencing Commissions and Their
Guidelines." In Crime and Justice: A Review of the
Research, vol. 17, ed. M. Tonry, pp. 137-196.
Chicago: University of Chicago Press. 1993.

2. U.S. Sentencing Commission. The Federal
Sentencing Guidelines: A Report on the Operation
of the Guidelines System and Short-Term Impacts on
Disparity in Sentencing, Use of Incarceration, and
Prosecutorial Discretion and Plea Bargaining.
Washington, DC, 1991.

3. Note 2, p. 279.

4. U.S. Sentencing Commission. Annual Report--
1991. Washington, DC, 1992.

5. Note 4, Table 29 (not available in this
format).

6. Heaney, G.W. "The Reality of Guidelines
Sentencing: No End to Disparity." American
Criminal Law Review 28(2)(1991), pp. 161-232.

7. Note 2.

8. U.S. General Accounting Office. Sentencing
Guidelines--Central Questions Remain Unanswered.
Washington, DC, 1992.

9. Myers, S.L., Jr. "Racial Disparities in
Sentencing: Can Sentencing Reforms Reduce
Discrimination in Punishment?" University of
Colorado Law Review 64(3)(1993), pp. 781-808.

10. Note 9, pp. 793-794.

11. Berk, R., and A. Campbell. "Preliminary Data
on Race and Crack Charging Practices in Los
Angeles." Federal Sentencing Reporter 6(1)(1993),
pp. 36-38. See also McDonald, D, and K.E. Carlson.
"Why Did Racial/Ethnic Sentencing Differences In
Federal District Courts Grow Larger Under the
Guidelines?" Federal Sentencing Reporter
6(4)(1994), pp. 223-226.

12. Note 11.

13. McDonald, D, and K.E. Carlson. "Why Did
Racial/Ethnic Sentencing Differences in Federal
District Courts Grow Larger Under the Guidelines?"
Federal Sentencing Reporter 6(4)(1994), pp. 223-
226.

14. Note 13, p. 224.

15. Note 13, pp. 225-226.

16. U.S. Sentencing Commission. Special Report to
the Congress: Mandatory Minimum Penalties in the
Federal Criminal Justice System. Washington, DC,
1991.

17. Personal communication with Phyllis Newton,
U.S. Sentencing Commission.

18. Stolzenberg, L., and S.J. D'Alessio.
"Sentencing and Unwarranted Disparity: An
Empirical Assessment of the Long-Term Impact of
Sentencing Guidelines in Minnesota." Criminology
32(2)(1994), pp. 301-310.

19. Parent, D.G. Structuring Criminal Sentences:
The Evolution of Minnesota's Sentencing
Guidelines. Stoneham, MA: Butterworth. 1988.

20. Miethe, T.D., and C.A. Moore. "Socioeconomic
Disparities Under Determinate Sentencing Systems:
A Comparison of Pre- and Post Guideline Practices
in Minnesota." Criminology 23(1985), pp. 337-363.
See also Miethe, T.D., and C.A. Moore. "Racial
Differences in Criminal Processing: The
Consequences of Model Selection on Conclusions
About Differential Treatment." Sociology Quarterly
27(1986), pp. 217-237. See also Miethe, T.D., and
C.A. Moore. "Can Sentencing Reform Work? A
Four-Year Evaluation of Determinate Sentencing in
Minnesota." Paper presented at the annual meeting
of the American Society of Criminology, November
1988. See also Moore, C.A., and T.D. Miethe.
"Regulated and Non-Regulated Sentencing Decisions:
An Analysis of First-Year Practices Under
Minnesota's Felony Sentencing Guidelines." Law and
Society Review 20(2)(1986), pp. 253-277. See also
Miethe, T.D. "Charging and Plea Bargaining
Practices Under Determinate Sentencing: An
Investigation of the Hydraulic Displacement of
Discretion." Journal of Criminal Law and
Criminology 78(1)(1987), pp. 155-176. See also
Frase, R.S. "Implementing Commission-Based
Sentencing Guidelines: The Lessons of the First
Ten Years in Minnesota." Wake Forest Law Review.
1993.

21. Washington State Sentencing Guidelines
Commission. A Decade of Sentencing Reform:
Washington and Its Guidelines 1981-1991. Olympia,
1992.

22. Fallen, D.L. Sentencing Practices Under the
Sentencing Reform Act. Olympia: Washington State
Sentencing Guidelines Commission. 1987.

23. First-time offenders not convicted of a sex
offense or a violent offense can be sentenced
under a broader range of sentence conditions
permitted by the First-Time Offender Waiver. The
Special Sexual Offender Sentencing Alternative
allows a determinate sentence to be suspended so
that treatment programs can be imposed. If an
offender fails to comply with the sentence
conditions, the suspension will be revoked and the
original sentence imposed.

24. Note 21, p. 21.

25. Ashford, K., and C. Mosbaek. First Year Report
on Implementation of Sentencing Guidelines:
November 1989 to January 1991. Portland: Oregon
Criminal Justice Council. 1991.

26. Note 25, p. 17.

27. Note 25, p. 72.

28. Mosbaek, C. Third-Year Report on
Implementation of Sentencing Guidelines: 1992.
Portland: Oregon Criminal Justice Council. 1993.

29. Note 28.
   
30. Gebelein, R.S. "Sentencing Reform in
Delaware." Overcrowded Times 2(2)(1991), pp. 5,
12-13. See also Quinn, T.J. "Delaware Sentencing
Guidelines Achieving Their Goals." Overcrowded
Times 3(1)(1990), pp. 1-2. See also Quinn, T.J.
"Voluntary Guidelines Effective in Delaware."
Overcrowded Times 3(1)(1992), pp. 1, 9, 11.

31. Pennsylvania Commission on Sentencing.
Sentencing in Pennsylvania: Annual Report.
University Park, 1991. See also Kramer, J.H., and
R.L. Lubitz. "Pennsylvania's Sentencing Reform:
The Impact of Sentencing Commission-Established
Guidelines." Crime and Delinquency 31(1985), pp.
481-500.

32. Kramer, J.H., and D. Steffensmeier. "Race and
Imprisonment Decisions." The Sociological
Quarterly 34(2)(1993), pp. 357-376. See also
Steffensmeier, D., J. Kramer, and C. Streifel.
"Gender and Imprisonment Decisions." Criminology
31(3)(1993), pp. 411-446. See also Ulmer, J. Trial
Court Communities Under Sentencing Guidelines:
Sentencing, Case Processing, and Organizational
Relations. Ph.D. dissertation, The Pennsylvania
State University. Ann Arbor, MI: University
Microfilms International. 1993. See also Kramer,
J.H., and J. Ulmer. "Sentencing Disparity and
Guideline Departures." Criminology, in review.

33. Note 1.

34. Note 1. See also Kramer, J.H., and D.
Steffensmeier. "Race and Imprisonment Decisions."
The Sociological Quarterly 34(2)(1993), pp. 357-
376. See also Steffensmeier, D., J. Kramer, and C.
Streifel. "Gender and Imprisonment Decisions."
Criminology 31(3)(1993), pp. 411-446. See also
Kramer, J.H., and J. Ulmer. "Sentencing Disparity
and Guideline Departures." Criminology, in review.
See also Griswold, D. "Deviation From Sentencing
Guidelines: The Issue of Unwarranted Disparity."
Journal of Criminal Justice 15(1987), pp. 317-329.

35. Tonry, M. "Malign Neglect--Race, Crime and
Punishment in America." Unpublished manuscript.

36. Alschuler, A.W. "Sentencing Reform and
Prosecutional Power: A Critique of Recent
Proposals for `Fixed' and Presumptive Sentencing."
University of Pennsylvania Law Review 126(1978),
pp. 550-577. See also Alschuler, A.W. "Departures
and Plea Agreements Under the Sentencing
Guidelines." Federal Rules Decision 117(1988), pp.
459-476. See also Tonry, M. "Sentencing Guidelines
and Their Effects." In The Sentencing Commission
and Its Guidelines, ed. A. von Hirsch, K. Knapp,
and M. Tonry. Boston: Northeastern University
Press. 1987. See also Savelsberg, J. "Law That
Does Not Fit Society: Sentencing Guidelines as a
Neoclassical Reaction to the Dilemmas of
Substantivized Law." American Journal of Sociology
97(s)(1992), pp. 1346-1381.

37. Miethe, T.D. "Charging and Plea Bargaining
Practices Under Determinate Sentencing: An
Investigation of the Hydraulic Displacement of
Discretion." Journal of Criminal Law and
Criminology 78(1)(1987), pp. 155-176.

38. Cirillo, V. "Windows of Discretion in the
Pennsylvania Sentencing Guidelines." Villanova Law
Review 31(1986), pp. 1309-1349.

39. Ulmer, J., and J.H. Kramer. "Sentencing
Guidelines and Case Processing in Two Court
Communities." Paper presented at the annual
meeting of the Midwest Sociological Society,
Kansas City, MO. 1992.

40. Ulmer, J. Trial Court Communities Under
Sentencing Guidelines: Sentencing, Case
Processing, and Organizational Relations. Ph.D.
dissertation, The Pennsylvania State University.
Ann Arbor, MI: University Microfilms
International. 1993.

41. Tonry, M. "Structured Sentencing." In Crime
and Justice: A Review of the Research, vol. 10,
ed. M. Tonry and N. Morris. Chicago: University of
Chicago Press. 1988.

42. U.S. Sentencing Commission. Special Report to
the Congress: Mandatory Minimum Penalties in the
Federal Criminal Justice System. Washington, DC,
1991.

43. Austin, J. Reforming Florida's Unjust, Costly
and Ineffective Sentencing Laws. San Francisco:
National Council on Crime and Delinquency. 1993.

44. Note 43.

45. Dailey, D. "Minnesota: Sentencing Guidelines
in a Politically Volatile Environment." Federal
Sentencing Reporter 6(3)(1993), pp. 144-146.

46. From a prison management perspective, relying
on the highest capacity figure may understate the
State's crowding problem because prisons generally
require reserve capacity (5 percent) to operate
efficiently and safely. For instance, prison
dormitories and cells need periodic maintenance
and extra cells are needed for protective custody,
disciplinary cases, and other emergencies.
Therefore, operating a prison at its highest
capacity may already indicate a crowding
situation.

47. Washington State Sentencing Guidelines
Commission. A Decade of Sentencing Reform:
Washington and Its Guidelines 1981-1991. Olympia,
1992.

48. Austin, J. Reforming Florida's Unjust, Costly
and Ineffective Sentencing Laws. San Francisco:
National Council on Crime and Delinquency. 1993.

49. Austin, J. "The Use of Early Release and
Sentencing Guidelines to Ease Prison Crowding: The
Shifting Sands of Reform." Paper presented at the
National Academy of Sciences meeting on prison
overcrowding, Chicago. 1986, pp. 45-46.

50. Dailey, D. "Minnesota: Sentencing Guidelines
in a Politically Volatile Environment." Federal
Sentencing Reporter 6(3)(1993), pp. 144-146.

51. Only inmates granted parole will benefit from
the Safety Valve Program because the sentence
discharge date is not affected.

52. Harer, M.D. Recidivism Among Federal Prison
Releases in 1987: A Preliminary Report.
Washington, DC: Federal Bureau of Prisons. 1994.
See also Irwin, J., and J. Austin. It's About
Time: America's Imprisonment Binge. Belmont, CA:
Wadsworth Publishing. 1993. See also Note 35.

53. Note 52, p. 117.

54. Note 1.

------------------------------

Chapter 7

Summary

The past decade has brought significant activity
in sentencing reform. Most States have instituted
reforms to increase the certainty of sentencing
decisions by adopting mandatory sentencing
provisions, more sweeping determinate sentencing,
or sentencing guideline systems (either
voluntary/advisory or presumptive).

The impetus for many of these reforms has been the
need to control sentencing disparity, increase
truth in sentencing, and control correctional
population growth. These reforms enable States to
establish an overall policy on sentencing goals
and to limit their investment in incarceration
facilities. In view of the trend toward sentencing
commissions over the past 15 years and the
projected growth of prison populations, continued
interest in structured sentencing models is
likely.

This report summarized the nature and results of
this reform movement. This closing chapter
summarizes the major findings and policy
implications for how structured sentencing reforms
may proceed in the future.

Major Findings

Current Sentencing Practices

o An unprecedented flurry of structured sentencing
reforms has occurred over the past two decades.
The Federal Government and 16 States have
implemented or are implementing either presumptive
or voluntary/advisory sentencing guidelines.
Another five States have adopted determinate
sentencing systems.

o Another popular form of structured sentencing is
mandatory minimum sentencing laws. All States have
some version of these laws, which target habitual
offenders ("three strikes and you're out") and the
crimes of possession of a deadly weapon ("use a
gun--go to prison"), drunk driving, and possession
and distribution of drugs.

o Most States continue to allow inmates to earn
good-time credits either to reduce the inmate's
sentence or to advance the inmate's parole
eligibility date.

o Despite the level of criticism directed at
parole, most States, including those that have
adopted determinate and sentencing guideline
models, retain some form of discretionary release
and postrelease supervision.

o Although several States have converted to
guideline-based sentencing, most States do not use
sentencing guidelines. Furthermore, five States
have tried and failed to adopt sentencing
guidelines.

Sentencing Guideline Models

The purposes, structures, requirements, and
impacts of sentencing guidelines are summarized in
the following paragraphs:

Purposes and Goals.

o Virtually all guideline commissions were asked
to fulfill the multiple goals of punishment ("just
deserts"), deterrence, incapacitation, and
rehabilitation.

o Few jurisdictions explicitly stated the goal of
establishing sentencing neutrality with respect to
race, gender, or social or economic status.

o Only a few guideline commissions were required
to consider the impact of the guidelines on the
need for future correctional resources (i.e.,
prison beds).

Structure of Sentencing Guidelines and Sentencing
Commissions.

o The structure of sentencing guidelines varies
dramatically in the criteria used to determine
sentencing disposition and sentence length.

o The most common format for guidelines is a
matrix that relies on two variables: offense
severity and prior criminal history.

o The number and type of members selected for the
sentencing commission vary considerably, with no
apparent advantage to either a large or small
number of members.

o In general, membership includes judges,
prosecutors, defense attorneys, and private
citizens. Corrections officials, legislators, and
law enforcement officials are also often members
of these commissions.

Implementation Issues.

o The process for implementing guidelines is
neither quick nor inexpensive, often requiring 2
years to complete.

o Before guidelines are implemented, detailed data
on current sentencing patterns need to be
collected and analyzed. A jurisdiction will also
need a simulation model to estimate the impact of
the proposed guidelines on prison, parole,
probation, and jail populations.

o The annual budget for guideline commissions and
support staff ranges from $250,000 to $500,000.
Considerable support is required to monitor and
analyze compliance with the guidelines and to
project the impact of modifying them.

Impact of Sentencing Guidelines.

o States that have implemented presumptive
guidelines have reported high compliance rates and
have succeeded in changing historical sentencing
trends.

o In general, offenders convicted of violent
crimes or repeat offenders are far more likely to
be imprisoned and to serve longer prison terms
under sentencing guidelines. Conversely,
first-time offenders charged with property crimes
are less likely to be imprisoned and generally
serve shorter prison terms.

o Partly because of guidelines, persons convicted
of drug crimes (both possession and sale) are now
far more likely to be imprisoned and to serve
lengthy prison terms. This trend has directly
increased the rate of imprisonment for
African-American and Hispanic offenders.

o Guidelines have helped reduce sentencing
disparity, but disparity reductions have eroded
somewhat over time.

o Limited evidence indicates that guidelines
designed to take correctional resources into
account have lowered rates of growth in
incarceration and have helped to control prison
crowding. However, prison crowding remains a
problem for most States.

o Guideline States, like nonguideline States, will
probably have overcrowded prisons over the next
decade unless they embark on substantial prison
construction programs or reduce prison terms for
violent and drug offenders.

Policy Implications

Reducing Disparity While Maintaining Discretion

A jurisdiction's decisions about its criminal
justice laws will have a major impact on the
quality of justice and the costs to its citizens.
Unless structured by law or a commission, these
decisions are left to individual judges who must
determine not only what they perceive as just
sentences, but also the best use of State and
local correctional resources. The major question
is whether the technology of structured
sentencing, and presumptive sentencing guidelines
in particular, can overcome well-established
organizational values that may facilitate and
protect inequitable sentencing practices.

One area of concern is the ability to
individualize sentencing and consider a wide range
of sentencing purposes while maintaining an
equitable sentencing system. Most States have
attempted to control the individualization of
judicial practices while also maintaining that
sentences should consider the full range of
traditional sentencing purposes.

Pennsylvania and Washington provide the most
explicit examples of this effort to structure
sentencing while maintaining adequate court
discretion to fashion sentences to individual
offenders. Pennsylvania requires judges to
consider offenders' rehabilitative potential and
community protection as well as the guidelines. In
Washington, the enabling legislation mandates that
the guidelines incorporate multiple goals of
retribution, incapacitation, rehabilitation, and
frugal use of correctional resources.

Recent innovations in Louisiana and Oregon have
expanded the range of sentencing options and
allowed more commensurate punishments. This new
approach, which illustrates that sentences can be
very different yet equal, is an important move in
the evolution of sentencing guidelines. Building
on these innovations, other commissions may
develop guidelines that will increase fairness,
equity, and proportionality and still provide for
a full range of sentencing options.

Displacement of Discretion

As noted earlier, one of the key issues involved
in the attempts to control sentencing discretion
is the displacement of discretion from the court
to the prosecutor. One must be concerned that
guidelines have merely shifted discretion from
parole boards, prison officials, and judges to
prosecutors. Unfortunately, little systematic
evidence exists to document the extent to which
this has occurred. Clearly, research is needed in
this area of sentencing reform.

Prison Crowding

To date structured sentencing reforms have not
demonstrated any appreciable effects on prison
crowding. This is not to say that they could not
have such an impact in the future. However, until
the legislators and sentencing commissions become
immune to "get tough on crime" pressures there is
little reason to believe that structured
sentencing models will solve the prison crowding
problem.

Moreover, as State prisons remain crowded, they
will continue to use discretionary early release
programs. Depending upon how such programs are
structured, they may interfere with the goal of
reducing disparity in time to be served by
similarly situated offenders.

Recommendations
(Note: the recommendations in this section are
those of the Advisory Board.)

The purpose of this project was not to advocate
one particular form of sentencing policy, whether
it be presumptive guidelines, voluntary/advisory
guidelines, determinate sentencing, or
indeterminate sentencing. Any number of sentencing
reform measures can reduce disparity,
incarceration rates, and prison crowding. The
question is how best to achieve these goals.

The most promising structured sentencing model to
address these issues is sentencing guidelines
developed by sentencing commissions. Sentencing
guidelines have helped States set overall policies
as to the goals of sentencing and, in some
instances, to set limits on what they are willing
to invest in prisons. In view of the strong move
toward sentencing commissions and the continued
growth of prison populations, it is likely that
there will be continued interest in the use of
sentencing guidelines. Despite this endorsement of
the guideline approach, a note of caution is
warranted. This report has provided examples where
guidelines did not improve the quality of justice.
Simply stated, guidelines may or may not work
depending on how they are designed and
implemented, and for what purposes. Importantly,
one should not expect guidelines to solve all of
the problems regarding the dispensation of justice
and the reduction of crime.

The following policy recommendations from the
Advisory Board are offered for States to consider
in developing structured sentencing policies:

o Commission representation participation. Broad
participation in the guideline process is desired
as it cultivates commitment to the promulgated
guidelines and improves their quality.

o Resources. Adequate financial support is
necessary if a commission is to study past
sentencing practices in the State, study what
other States have done, prepare reports and
proposals for the commission to consider, pay for
the commission to meet regularly, hire consultants
when necessary, provide ongoing feedback to the
court and other governmental agencies, and monitor
and evaluate the impact of guidelines.

o Ongoing monitoring and support. Commissions that
have successfully implemented guidelines have
realized increases in budget and in staff size in
the postimplementation years. This is due to
continually increasing responsibilities imposed on
the commissions by the legislature and the cost of
maintaining and evaluating guidelines.

o Appellate review. Without an enforcement
mechanism, guidelines are merely
voluntary/advisory and as such may have little
impact on changing sentencing practices. The
common procedure is to provide for appellate
review and for the appellate review to be
initiated by either the defense or prosecution.

o Mandatory minimum sentences. It is clear from
the experiences of many States that the increased
use of mandatory minimum penalties is interfering
with achievement of the dual goals of reducing
disparity and controlling correctional population
growth. A State should resist such provisions if
they affect large proportions of its sentenced
population.

o Controlling the use of departures. The extent to
which subjective factors are used to depart from
the guidelines will have much to do with meeting
the goal of reducing unwarranted disparity. States
should specify as much as possible the type of
departures that are acceptable. Moreover,
commissions should carefully monitor the frequency
and direction of departures by, among other
things, crime category, race, and gender.

o Role of the Federal Government. States that have
recently adopted or are interested in adopting
guidelines require assistance and guidance. In
particular, the Federal Government can play an
important role by providing a modest amount of
assistance to States by the following actions:

o Establish and maintain a national clearinghouse
on structured sentencing.

o Convene annual meetings of State sentencing
commissions to share information and research
findings.

o Establish a funding program to assist States in
technologies necessary to support the development
or modification of existing sentencing structures.
Assistance is especially required in the following
areas:

o Conducting comprehensive studies of existing
sentencing practices that can be used to guide
States in the formulation of new sentencing
structures.

o Developing new methods or providing training to
States in existing analytic methods for measuring
disparity.

o Designing information systems that can be used
to monitor compliance with sentencing criteria.

o Developing and improving criminal court and
correctional population simulation technology
(jails, prisons, probation, and parole).

o Developing and improving methods of designing
and pilot-testing sentencing guideline methods.

Finally, more research is needed to assess whether
guidelines and other forms of structured
sentencing are reducing sentencing disparity. As
indicated above, a number of States have
implemented, or are about to implement, sentencing
guidelines. Independent process evaluations and
impact evaluations of these new structured
sentencing reforms would be valuable to the field.

A better understanding is also needed concerning
the effect of reforms external to the guidelines
on sentencing disparity, especially along racial
lines. Topics to be addressed include the impact
of mandatory minimum provisions for certain drug
crimes on disparity and the effect of guidelines
on shifting discretion from the courts to the
front end of the system (arrest, charging, and
plea bargaining). Such studies will help clarify
how best to correct undesirable and unequal
sentencing practices.

------------------------------

Sources for Further Information

For more information on Structured Sentencing,
contact:

Bureau of Justice Assistance
633 Indiana Avenue NW.
Washington, DC 20531
202-514-5947

Bureau of Justice Assistance Clearinghouse
Box 6000
Rockville, MD 20849-6000
800-688-4252

National Council on Crime and Delinquency
1325 G Street, Suite 1020
Washington, DC 20005
202-638-3080

------------------------------

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Appendix A

Information on States Used for Impact Analysis

Sentencing guideline States selected for analysis
and the years of pre- and postcomparison were as
follows: 

Minnesota, 1980; Pennsylvania, 1982; Florida,
1983; Washington State, 1984. Although
Washington's law was adopted in 1983, it was not
fully implemented until 1984.

The nonguideline States selected as comparison for
each of the four guideline States (for each of
three categories) were as follows:

Violent Crime Rates

Minnesota: Maine, Montana, Nebraska, Idaho

Pennsylvania: Connecticut, Indiana, Virginia,
Arkansas, Mississippi, Rhode Island

Florida: Nevada, California, Maryland

Washington: Connecticut, Rhode Island, Oklahoma,
Tennessee, Ohio, Alabama

Total Crime Rates

Minnesota: Virginia, Montana, Wyoming, Idaho,
Oklahoma, Indiana, Louisiana, Kansas

Pennsylvania: Arkansas, Nebraska, New Hampshire,
Kentucky

Florida: California, Arizona, Nevada, Colorado

Washington: Delaware, New York, Alaska, Oregon,
Hawaii

Incarceration Rates

Minnesota: Virginia, Montana, Wyoming, Idaho,
Oklahoma, Indiana, Louisiana, Kansas

Pennsylvania: Utah, Vermont, Maine, Rhode Island,
West Virginia, Iowa, Connecticut, South Dakota

Florida: Maryland, Nevada, South Carolina,
Georgia, Texas, North Carolina

Washington: California, Kentucky, Mississippi, New
York, Oregon, Ohio, Alaska