Key Legislative Issues in Criminal Justice: The Impact of Sentencing Guidelines.


Key Legislative Issues...: The Impact of Sentencing Guidelines 
Series: NIJ Research in Action
Published: November 1996
17 pages
28,073 bytes

U.S. Department of Justice
Office of Justice Programs
National Institute of Justice

Jeremy Travis, Director

Research in Action

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Highlights

The impact of sentencing guidelines has been
generally favorable. By 1996 such sentencing
guidelines had been implemented by nine States and
the Federal Government and were under development
in eight other States. 

Sentencing guidelines are of two types: voluntary
and presumptive. As the term suggests, voluntary
guidelines (still in use in four States), a
precursor of presumptive guidelines, have no
enforcement mechanism. They are developed by
committees of judges, while presumptive guidelines
are developed by sentencing commissions created by
State legislatures. Presumptive guidelines are
prescriptive rather than descriptive and are also
enforceable, although they have provisions to allow
judges to depart from them. Sentencing commissions
also collect and analyze data useful in
policymaking. 

Evaluations of voluntary guidelines indicate they
did not make sentencing more uniform. By contrast,
presumptive guidelines were found to be effective
in a number of ways:

o Sentencing uniformity and proportionality
increased.

o Racial, ethnic, and gender differences in
sentencing generally declined, although one
assessment found that in the use of nonconfinement
options differences persisted. Although Federal
sentencing was free of bias, congressionally
imposed mandatory minimums for crack cocaine
sentences disproportionately affected African
Americans. 

o State goals of reducing sentences for property
offenders and increasing them for violent offenders
were met, as was the Federal goal of increasing use
of imprisonment generally and decreasing use of
probation.

o Judges have adhered to presumptive guidelines at
high rates.

The effects of sentencing guidelines on criminal
justice operations have been generally positive: 

o In contrast to what some observers expected from
a presumed loss of prosecutors' flexibility, plea
bargaining did not decline. 

o The increase in court workload was modest,
although reviews have added to the workload of
appellate courts. At the Federal level, differences
varied by district, although the time from filing
to disposition increased slightly and the number of
sentencing appeals rose substantially.


o By controlling decisions about the use and
duration of imprisonment, guidelines give States a
tool to control subsequent prison population
levels, at least in the short term. 

o The data used to develop and monitor guidelines
enable sentencing commissions to make accurate
projections of the effects and costs of proposed
sentencing policies.

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Key Legislative Issues in Criminal Justice: The
Impact of Sentencing Guidelines

by Dale Parent, Terence Dunworth, Douglas McDonald,
and William Rhodes

The use of sentencing guidelines has been growing
in the United States and is generating a debate
with respect to their effects on the criminal
justice system in jurisdictions where they have
been enacted. By 1996 nine States and the Federal
Government had presumptive guidelines and eight
States were creating them, while four States
continued to use voluntary sentencing guidelines.
This Research in Action discusses the predominance
of presumptive guidelines over voluntary
guidelines, the goals of presumptive guidelines,
and their impact on sentencing practices and
criminal justice operations.

Dominance of presumptive guidelines

Voluntary sentencing guidelines were a precursor to
today's presumptive guidelines. Of the four States
that still have voluntary sentencing guidelines,
only two implemented them after 1980, the year that
the first State, Minnesota, initiated use of
presumptive guidelines.

Voluntary guidelines sought to reduce sentencing
disparity by making future sentencing decisions
adhere more closely to past practice; they
described past sentencing practices and used them
as guidance. Usually, voluntary guidelines were
created by committees of judges acting under the
administrative authority of the courts. As the term
suggests, voluntary sentencing guidelines have no
enforcement mechanism. Rather, judges are
encouraged to consider and apply the guidelines
when sentencing offenders. 

Presumptive sentencing guidelines differ from
voluntary guidelines in important ways:

o They are developed by legislatively created
sentencing commissions, whose members represent
judges, prosecutors, defenders, law enforcement
officials, correctional officials, the public, and
(in some States) the legislature. 

o Unlike voluntary guidelines, presumptive
guidelines do not claim to describe past sentencing
practices; rather, they prescribe policy that the
officials ought to follow in the future. 

o Presumptive guidelines contain enforcement
mechanisms. If judges want to depart from the
sentences recommended in the guidelines for a
particular offender, they must hold a hearing to
ascertain whether the facts warrant a departure, as
well as issue a written finding stating why the
departure is appropriate. In most States departures
can be appealed (providing a foundation for the
development of sentencing case law). 

o Although legislatures typically play no role in
voluntary guidelines, presumptive guidelines do not
go into effect without the legislature's consent.

Goals of presumptive sentencing guidelines

The main goals of early presumptive sentencing
guidelines systems were to inflict just punishment
on convicted offenders. For punishment to be just,
according to this view, it has to be proportional,
uniform, and neutral. To be proportional, sanctions
should vary with the seriousness of offenders'
criminal conduct and their culpability--serious
crimes should be punished more severely than minor
crimes, and repeat offenders should be punished
more severely than first-time offenders. To be
uniform, punishment for similar offenders must be
similar, and variations should be allowed only for
demonstrably relevant reasons. To be neutral,
sanctions should not vary by such factors as race,
gender, and ethnicity, and preexisting differences
in sentencing outcomes based on such factors should
be diminished. 

Role of the commissions. The first commissions were
created to develop guidelines to meet these goals.
Early sentencing commissions were also directed to
make their guidelines work within the limits of
available correctional resources. Some later
sentencing commissions sought to make sentences
tougher as well as more uniform.

The sentencing commissions that develop the
guidelines maintain sentencing policy while
ensuring that the legislatures retain ultimate
control. Commissions routinely collect and analyze
information on sentencing practices; the data they
gather can be used to enhance policy
decisionmaking. Commission members and staff also
develop expertise that can help make policymaking
more empirically based. For example, sentencing
commissions can develop highly accurate forecasts
of prison populations, allowing them to make
precise estimates of the costs of implementing or
amending the guidelines.

Impact of guidelines on sentencing practices

Evaluations of early voluntary sentencing
guidelines found that they did not make sentencing
more uniform.[1] In addition, some scholars
challenged the alleged descriptive basis of
voluntary guidelines,[2] noting that researchers
were able to explain only a small proportion of the
variation in sentencing decisions.[3]

Most evaluations of presumptive guidelines have
focused on earlier implementations. Where they have
been evaluated, these guidelines have had a mixed,
but generally positive, record of:

o Achieving adherence to the guidelines by judges
and other justice system officials. 

o Increasing sentencing uniformity and
proportionality.

o Improving sentencing neutrality.

o Altering sentencing patterns in intended ways.

Effects on the operations of the criminal justice
system include changes in prosecutor and plea
negotiation practices, court workloads, and prison
populations. 

Achieving conformance to presumptive guidelines.
Studies show that judges, even those who publicly
and stridently criticize the guidelines, adhere to
them at a high rate.[4] Rates of conformity appear to
be higher in systems that establish narrow grounds
for departing from the guidelines and in States
where case law strongly reinforces guideline
policies.[5] Conformance also tends to be higher
for guidelines that allow a wide range of
presumptive practice; that is, place fewer
restrictions on a practitioner's discretion.[6] Of
course, precisely because they encompass a wider
range of practice, these less restrictive
guidelines are also less effective at increasing
uniformity and proportionality. 

Increasing sentencing uniformity and
proportionality. Virtually all studies of
presumptive guidelines report sentencing uniformity
and proportionality. Two caveats about before-and-
after evaluations are necessary, however. First,
studies that compare sentencing patterns before and
after imposition of guidelines for offenders who
fall into particular guideline categories are
suspect. This is because officials are likely to
change their charging or bargaining practices over
time, thereby changing the characteristics of
offenders who fall into those categories. Second,
general sentencing practices change over time (in
recent years, usually becoming harsher) for reasons
unrelated to the guidelines. Hence, before-and-
after sentencing comparisons become less relevant
as time passes. 

Despite these caveats, there is strong evidence
that presumptive sentencing guidelines increase
uniformity and proportionality, at least in the
years just following implementation.[7] Three
evaluations of Minnesota's guidelines support this
conclusion.[8] No independent evaluations of other
early sentencing commissions were conducted, but
studies by commissions in Oregon, Pennsylvania,
Washington, and Delaware all found increases in
uniformity.[9]

At the Federal level, the U.S. Sentencing
Commission reported increased uniformity during the
first 4 years of guideline operation.[10] However,
three other studies offered more cautious
interpretations, concluding that the question is
open because the Commission's analysis was based on
limited data.[11]

Improving sentencing neutrality. In Minnesota, the
first State to implement presumptive guidelines,
racial, ethnic, and gender differences in
sentencing declined, even though minority
defendants were more likely to be imprisoned via
departures from the guidelines, and men were more
likely to receive longer sentences than similarly
situated women.[12] It is important to note that in
jail sentences, which were not regulated by the
guidelines, racial and ethnic differences did not
change before and after the guidelines went into
effect.[13] For women, movement toward neutrality
meant movement toward the male norms; that is,
toward a higher probability of confinement and
longer confinement terms. A study of the Washington
sentencing commission revealed that racial, ethnic,
and gender differences in sentencing declined, but
substantial differences by race, ethnicity, and
gender persisted in the use of nonconfinement
options.[14]

An analysis of U.S. Sentencing Commission
guidelines found no compelling evidence of racial
or ethnic bias in sentencing at the Federal level.
Independent of these guidelines, however,
congressionally imposed mandatory minimum sentences
for crack cocaine have resulted in substantially
longer sentences for African Americans. This is
largely because those convicted of crack
trafficking in the Federal courts are
disproportionately African American, while those
convicted of trafficking in powdered cocaine are
mostly white or Hispanic.[15]

Altering sentencing patterns. Most presumptive
guidelines sought to alter preexisting sentencing
patterns and, hence, were prescriptive. Commissions
in Minnesota, Oregon, and Washington intended to
reduce imprisonment sentences for property
offenders and increase them for violent offenders.
In all three States, those outcomes were
achieved.[16] At the Federal level, the U.S.
Sentencing Commission sought to increase use of
imprisonment and decrease the use of probation--and
succeeded in meeting these goals.[17] 

One researcher has observed that modest changes in
past practice tend to revert over time, as criminal
justice practitioners modify their discretionary
choices in response to the guidelines, whereas more
radical changes tend to persist.[18] Minnesota's
experience also suggests that when case law gives a
green light to judicial departures from the
guidelines, reversions to previous practice will be
more pronounced.[19] Studies also show that as
commissions amend guidelines (particularly to make
sentences more severe), the severity of sentences
given to offenders in the affected categories
increases rapidly.[20]

Impact of guidelines on criminal justice operations

Effects on plea negotiations. Some critics expected
presumptive guidelines to reduce rates of plea
bargaining because they believed prosecutors would
have less flexibility to offer inducements in
return for guilty pleas. However, evaluations of
State sentencing guidelines[21] have found that:

o In general, the total proportion of cases
concluded by guilty pleas remained fairly constant.

o The proportion of guilty pleas resulting from
plea bargains remained fairly constant.

o Guidelines for prison and nonprison sentences had
different effects: offenders for whom prison was
recommended were somewhat less likely to plead
guilty, while those for whom nonprison sentences
were recommended were more likely to plead guilty.

o Charge bargaining increased and became more
targeted (that is, it achieved a desired result,
such as dropping an offender to a lower seriousness
level of the guidelines), while sentence bargaining
declined (although it continued at a significant
level in most States).

To date, no empirical studies of plea bargaining
under the Federal sentencing guidelines have been
published.

Effects on court workload. Information on
guidelines' impact on court workloads are limited
to analyses of Minnesota and the U.S. sentencing
guidelines. In general, increases in court workload
were modest. In Minnesota the proportion of cases
going to trial stayed about the same, and, although
they increased for some types of cases, they were
offset by reductions for others.[22] Guideline
requirements for such tasks as holding sentencing
hearings, completing sentencing worksheets, and
collecting monitoring data cause little delay or
disruption. The lengths of time between charging
and trial and between conviction and sentencing
stayed about the same. However, review of sentences
has added to the workload of the Supreme Court and
triggered establishment of an intermediate court of
appeals, a long-advocated reform. In general,
appellate reviews were conducted expeditiously, but
the additional cases may have delayed the
disposition of other types of appellate cases.[23]

In the Federal system, the amount of time from
filing to disposition has increased slightly.
Beyond that, the impact seems to have varied
considerably from district to district. Over time
there has been a substantial growth in sentencing
appeals.[24]

Predictions of effects on prison populations. The
impact of guidelines on prison populations has
tended to be predictable and relatively rapid. As
expected, guidelines have made sentencing more
certain and helped ensure that sentencing decisions
are based on objective criteria. Therefore,
simulation models that predict prison population
levels with great accuracy can be developed. Such
models were used in Minnesota, Oregon, and
Washington to avert crowding in the short term and
limit future maximum prison population levels (by
modifying policy during initial development of the
guidelines). The models were later used to assess
the effects of proposed changes in the guidelines
and in sentencing legislation on the prison
population.

The U.S. Sentencing Commission accurately predicted
that in the Federal system, prison populations
would (by design) increase under the guidelines
because of the independent effects of the
guidelines and concurrently enacted mandatory
minimum sentences. Indeed, the Commission's 1987
simulation model predicted the 1991 Federal prison
population with almost perfect precision.[25] And
the Commission used its simulation capacity to
recommend a major Federal prison construction
program.

Evaluations of State guidelines conducted to date
reveal that dispositional policies (rules specifying 
which offenders should and should not be 
imprisoned) generally have had a greater impact on
prison population levels than policies on amount of
time to be served. The reason is that sentencing
commissions have generally chosen to change the
categories of offenders who are to be imprisoned
instead of changing the current average duration of
imprisonment. In the Federal system, guidelines on
duration of confinement and congressionally
mandated sentences for drug crimes have had a
greater effect than have dispositional policies.
Imprisonment rates have increased under the U.S.
sentencing guidelines.[26] Across all guideline
systems, effects on prison population resulting
from changes in sentence duration take longer to
emerge.

The potential of guidelines 

State policymakers who were interviewed were deeply
concerned about developing effective and affordable
sentencing policies. While many felt compelled to
respond to constituents' fear of crime and demands
for tougher sanctions, they also recognized the
need to limit spiraling correctional costs. In a
time when voters want to cut costs of government,
spending more on prisons means spending less on
other important and worthwhile purposes.

Given these concerns, State legislators' interest
in sentencing guidelines is understandable.
Properly developed, presumptive sentencing
guidelines can link the severity of punishment more
rationally to the seriousness of crimes. They can
modify the use of punishment so that available
prison capacity is used for more serious and
habitual offenders, and they can ensure that
sanctions are applied more uniformly and more
equitably. 

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

About the Key Legislative Issues Series

In 1995 the National Institute of Justice (NIJ)
contracted with Abt Associates Inc. to interview
legislators and policy-makers throughout the
country to identify important criminal justice
topics being considered by State legislatures and
to determine the information they need to help them
make more informed decisions. Altogether, 89
legislators, legislative staff members, and other
criminal justice policymakers (e.g., sentencing
commission members) were interviewed in 23 States.
The interviews were conducted during the opening
weeks of the 1995 State legislative sessions.

The sites and the respondents were chosen to
reflect the diversity of the States. Some of the
factors taken into consideration were geographic
size and region, urban/rural mix, and existence (or
nonexistence) of a sentencing commission in the
State government. The respondents selected included
the chairpersons of relevant legislative committees
(such as the criminal justice, judiciary, and
corrections committees), a representative from the
governor's staff, and an official with the
executive branch (such as the commissioner of
corrections or the sentencing commission
chairperson). Other people whom they suggested were
also interviewed, and, as might be expected,
legislators frequently referred the interviewers to
their staff.

These policymakers identified four topics as
important items on their legislative agendas:

o Sentencing commissions.

o Intermediate sanctions.

o Mandatory sentencing, including three-strikes
laws.

o Transferring serious juvenile offenders to adult
courts.

State policymakers expressed a strong desire for
more timely and useful information about research
findings on important criminal justice policy
issues they were addressing. However, they voiced
reservations about gleaning useful information from
technical research reports.

Reviews and summaries of the research literature on
the four key topics identified present the
information in a way that is more accessible to
policymakers. Of the four reports, this one
summarizes what is known about the impact of
presumptive sentencing guidelines on sentencing
practices and on the operations of the criminal
justice system.

Titles in the series

The Impact of Sentencing Guidelines (NCJ 161837)

Intermediate Sanctions (NCJ 161838)

Mandatory Sentencing (NCJ 161839)

Transferring Serious Juvenile Offenders to Adult
Courts (NCJ 161840)

These summary reports have been published in NIJ's
Research in Action series. Copies can be obtained
from the National Criminal Justice Reference
Service (NCJRS), Box 6000, Rockville, MD
20849-6000; telephone 800-851-3420 or e-mail
askncjrs@ncjrs.org. The reports can also be viewed
and downloaded from the NCJRS World Wide Web site,
the Justice Information Center (http://www.ncjrs.org). 

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

Notes

[1] Carlson, K., Mandatory Sentencing: The
Experience of Two States, Washington, D.C.:
National Institute of Justice, U.S. Department of
Justice, 1982. Rich, W., P. Sutton, T. Clear, and
M. Saks, Sentencing Guidelines: Their Operation and
Impact on Courts, Williamsburg, VA: National Center
for State Courts, 1980.

[2] Because the early voluntary guidelines
purported to analyze data on past sentencing to
identify typical practices and to capture these
practices as guideline policies, the argument went
that if judges followed the guidelines, they would
in effect be following their past practice more
uniformly. Critics, however, noted that researchers
typically could explain only about 35 percent of
the sentencing variation observed to have occurred
under the guidelines. With two-thirds of the
variation unexplained by the guidelines, they
contended it was misleading to claim that voluntary
guidelines codified past practice.

[3] Rich et al., Sentencing Guidelines. 

[4] Tonry, M., Sentencing Matters, Oxford, England:
Oxford University Press, 1996.

[5] Frase, R.S., "Sentencing Reform in Minnesota,
Ten Years After: Reflections on Dale G. Parent's
Structuring Criminal Sentences: The Evolution of
Minnesota's Sentencing Guidelines," Minnesota Law
Review, 75 (February 1991):727-754; and Frase,
R.S., "Implementing Commission-based Sentencing 
Guidelines:  The Lessons of the First Ten Years in 
Minnesota," Wake Forest Law Review, 1993.

[6] Tonry, M., Sentencing Reform Impacts,
Washington, D.C.: U.S. Department of Justice,
National Institute of Justice, 1987.

[7] Tonry, Sentencing Matters.

[8] Knapp, K.A., The Impact of the Minnesota
Sentencing Guidelines: Three Year Evaluation, St.
Paul, MN: Minnesota Sentencing Guidelines
Commission, 1984; Miethe, T.D., and C.A. Moore,
"Socioeconomic Disparities Under Determinate
Sentencing Systems: A Comparison of Preguideline
and Postguideline Practices in Minnesota,"
Criminology, 23 (1985):337-363; and Frase, R.S.,
"Implementing Commission-based Sentencing
Guidelines." 

[9] Tonry, Sentencing Matters.

[10] U.S. Sentencing Commission, 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, D.C.: U.S. Sentencing Commission, 1991.

[11] Rhodes, W.M., "Sentence Disparity, Use of
Incarceration, and Plea Bargaining: The Post-
Guideline View from the Commission," Federal
Sentencing Reporter 5 (1992); Weisburd, D.,
"Sentencing Disparity and the Guidelines: Taking a
Closer Look," Federal Sentencing Reporter 5
(1992):149-152; and McDonald, D.C., and K.E.
Carlson, Sentencing in the Courts: Does Race
Matter? The Transition to Sentencing Guidelines,
1986-90, Washington, D.C.: U.S. Department of
Justice, Bureau of Justice Statistics, 1993. 

[12] Knapp, The Impact of the Minnesota Sentencing
Guidelines; Parent, D.G., Structuring Criminal
Sentences, Stoneham, MA: Butterworth Legal
Publishers, 1988; and Frase, "Implementing
Commission-based Sentencing Guidelines."

[13] Knapp, The Impact of the Minnesota Sentencing
Guidelines.

[14] Washington State Sentencing Guidelines
Commission, A Decade of Sentencing Reform:
Washington and Its Guidelines, 1981-1991, Olympia,
WA: Washington State Sentencing Guidelines
Commission, 1992.

[15] McDonald and Carlson, Sentencing in the
Courts: Does Race Matter?

[16] Knapp, The Impact of the Minnesota Sentencing
Guidelines; Parent, Structuring Criminal Sentences;
Washington State Sentencing Guidelines Commission,
Preliminary Evaluation of Washington State's
Sentencing Reform Act, Olympia, WA: Washington
State Sentencing Guidelines Commission, 1986;
Ashford, K., and C. Mosbeck, First Year Report on
Implementation of Sentencing Guidelines: November
1989 to January 1991, Portland, OR: Oregon Criminal
Justice Council, 1991.

[17] Tonry, M., "The Failure of the U.S. Sentencing
Commission's Guidelines," Crime and Delinquency, 39
(April 1993).

[18] Ibid.

[19] Frase, "Implementing Commission-based
Sentencing Guidelines."

[20] Boerner, D., "The Legislature's Role in
Guidelines Sentencing in `The Other Washington,'
"Wake Forest Law Review, 28 (1993):381-420; and
Frase, "Implementing Commission-based 
Sentencing Guidelines."

[21] Tonry, Sentencing Reform Impacts; Tonry,
Sentencing Matters.

[22] Parent, Structuring Criminal Sentences.

[23] Ibid.

[24] Dunworth, T., and C.D. Weisselberg, "Felony
Cases and the Federal Courts: The Guidelines
Experience," Southern California Law Review, 66
(November 1992):99-153.

[25] Garry, J., "Why Me? Application and
Misapplication of Section 3A1.1, the Vulnerable
Victim Enhancement of the Federal Sentencing
Guidelines," Cornell Law Review, 79 (November
1993):143-182.

[26] McDonald and Carlson, Sentencing in the
Courts: Does Race Matter?

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Dale Parent, associate; Terence Dunworth, Ph.D.,
senior associate; Douglas McDonald, Ph.D., senior
associate; and William Rhodes, Ph.D., senior
scientist, are with Abt Associates Inc. This study,
sponsored by the National Institute of Justice, was
conducted under contract 94-IJ-CX-C007.

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

Points of view in this document are those of the
authors and do not necessarily reflect the official
position of the U.S. Department of Justice.

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

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

NCJ 161837