DEPARTMENT OF JUSTICE

OFF ICE OF JUSTICE PROGRAMS

BJA NI J OJJDP BJS OVC

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Assistance

Bureau of Justice Assistance

Monograph

1996

National

Survey

of State

Sentencing

Structures
This document was prepared by the National Council on Crime and Delinquency, under

grant number 95–DD–BX–0051, awarded by the Bureau of Justice Assistance, Office of

Justice Programs, 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.

U.S. Department of Justice

Office of Justice Programs

810 Seventh Street NW.

Washington, DC 20531

Janet Reno

Attorney General

Raymond C. Fisher

Associate Attorney General

Laurie Robinson

Assistant Attorney General

Noël Brennan

Deputy Assistant Attorney General

Nancy E. Gist

Director, Bureau of Justice Assistance

Office of Justice Programs

World Wide Web Home Page

http://www.ojp.usdoj.gov

Bureau of Justice Assistance

World Wide Web Home Page

http://www.ojp.usdoj.gov/BJA

For grant and funding information contact

U.S. Department of Justice Response Center

1–800–421–6770

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.
Bureau of Justice Assistance

1996 National Survey of

State Sentencing Structures

September 1998 Monograph NCJ 169270
iii

1996 National Survey of State Sentencing Structures

Foreword

Although the total number of violent crimes reported to police decreased

4 percent between 1994 and 1995, there is a public perception that violent

crime is at an unacceptable level. In addition, with the incidence of violent

crime committed by repeat offenders, fueled by the media the public is increasingly demanding harsher and more certain punishment. As a result,

many States are examining sentencing of offenders with an eye toward instituting reforms. Indeed, considerable reform of criminal justice sentencing has already taken place over the past decades.

Although these reforms have been primarily in response to criticism of rehabilitation efforts, they have sought to accomplish widely differing goals,

including reducing the disparity that results from discretionary sentencing

and increasing 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, voluntary or advisory sentencing guidelines, and truth in sentencing. The result

is a patchwork of structured sentencing models.

This report presents the findings of a followup to the first major national

assessment of sentencing practices that was produced in 1994, with funding from the Bureau of Justice Assistance and conducted by the National

Council on Crime and Delinquency. The first chapter is based on a national survey of existing sentencing practices in the 50 States and the District of Columbia. The second chapter is a review of the criminal justice

systems’ response to the rise in juvenile violent crime. The third chapter

discusses the policy implications of the observed trends in adult and juvenile justice sentencing reforms.

As adult prison populations continue to grow, interest in structured sentencing reforms will increase. Also as juvenile violent crime continues to

increase, juvenile justice reforms will also continue. It is our hope that this

assessment of structured sentencing practices and juvenile justice reform

will be a valuable resource to those States considering revising their current sentencing practices.

Nancy E. Gist

Director
v

1996 National Survey of State Sentencing Structures

Acknowledgments

The Bureau of Justice Assistance (BJA) wishes to thank the National Council on Crime and Delinquency (NCCD) staff for their efforts in writing this

monograph—specifically, James Austin, Ph.D.; Michael A. Jones; Wendy

Naro; and Robyn L. Cohen. Julie Oglesby and Daniel Ryan, consultants for

this project, are also acknowledged, along with Richard Sutton, Ph.D., BJA

Program Manager for this project. NCCD would also like to thank John

Kramer, Ph.D.; Michael Tonry; and Sandra Shane-DuBon for their review

of an earlier draft of this report.

Finally, NCCD would like to acknowledge the individuals who responded

to the survey on which the report is based. It is hoped that this report will

provide useful information to them on current sentencing practices.
vii

1996 National Survey of State Sentencing Structures

Contents

Executive Summary ............................................................................................. xi

Chapter 1 Structured Sentencing Reform ................................................... 1

Definitions of Sentencing Practices ............................................. 1

Determinate Sentencing ...................................................... 1

Indeterminate Sentencing ................................................... 2

Mandatory Minimum Sentencing ..................................... 2

Presumptive Sentencing Guidelines ................................. 2

Voluntary Sentencing Guidelines...................................... 2

Survey Results ................................................................................ 3

Determinate, Indeterminate, and Sentencing

Guideline Sentencing Systems ........................................... 3

Mandatory Minimums ........................................................ 6

Sentencing Guideline Commissions, Truth in

Sentencing, Parole, and Good Time ................................ 10

Two- and Three-Strikes Laws .......................................... 16

Chain Gangs ........................................................................ 16

Summary....................................................................................... 18

Chapter 2 Juvenile Justice Reform ............................................................. 19

Changes in Juvenile Laws.......................................................... 20

State Waiver Provisions ............................................................. 21

Summary........................................................................................ 28

Chapter 3 Major Findings, Policy Implications,

and Recommendations ............................................................... 29

Structured Sentencing Reform .................................................. 29

Structured Sentencing Reform: Major Findings .................... 29

Current Sentencing Practices............................................ 29

Sentencing Guideline Models: Purposes and Goals..... 30

Structured Sentencing Reform: Policy Implications ............. 30

Reducing Disparity While Maintaining Discretion ...... 30

Displacement of Discretion............................................... 30

Prison Crowding ................................................................ 30

Structured Sentencing Reform: Recommendations .............. 31

Juvenile Justice Reforms ............................................................ 31

Juvenile Justice Reforms: Major Findings ............................... 32

Changes in Juvenile Laws ................................................. 32

State Waiver Provisions as of 1995 .................................. 32

Current Transfer Provisions ............................................. 32

Juvenile Justice Reforms: Policy Implications ........................ 33

Juvenile Justice Reforms: Recommendations ......................... 33

Appendix A Bibliography .............................................................................. 35

Appendix B Sources for Further Information ............................................ 37
ix

1996 National Survey of State Sentencing Structures

Exhibits

Exhibit 1–1 U.S. Sentencing Practices, February 1996 ................................. 4

Exhibit 1–2 Types of Sentencing Practices by State, February 1996 .......... 6

Exhibit 1–3 Types of Sentencing Guidelines by State, February 1996 ...... 7

Exhibit 1–4 State Offenses With Mandatory Minimum Incarceration

Sentences, February 1996 ............................................................. 8

Exhibit 1–5 U.S. Sentencing Commissions, Truth in Sentencing,

Parole, and Good Time Provisions, February 1996 ............... 11

Exhibit 1–6 Status of U.S. Guidelines Commissions, February 1996 ...... 13

Exhibit 1–7 Responsibilities of State Sentencing Guidelines

Commissions, February 1996 .................................................... 14

Exhibit 1–8 Postrelease Practices in States That Have Abolished

Parole, February 1996 ................................................................. 15

Exhibit 1–9 Two- and Three-Strikes Laws, February 1996........................ 17

Exhibit 1–10 Use of Chain Gangs, February 1996......................................... 18

Exhibit 2–1 Violent Crime Index Arrest Rates for Juveniles,

Ages 10–17, 1965–1995 ............................................................... 20

Exhibit 2–2 Changes in State Juvenile Laws, 1994–1995 ........................... 22

Exhibit 2–3 Types of Judicial Waiver and Statutory Exclusion

by State, 1992–1995 ..................................................................... 24

Exhibit 2–4 Summary of Juvenile Transfer Provisions, 1995 .................... 26
xi

1996 National Survey of State Sentencing Structures

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, some States have replaced indeterminate sentencing

with structured sentencing schemes such as determinate sentencing, mandatory minimum penalties, and sentencing guidelines. However, as reported in

this study, most States have retained indeterminate sentencing structures, parole, and the use of good time credits to reduce prison terms.

This study is a followup to the national assessment of the various sentencing

practices that was conducted in 1994. The study was funded by the Bureau of

Justice Assistance (BJA) and conducted by the National Council on Crime

and Delinquency (NCCD). The information is based on a national survey of

State sentencing practices as reported by the States in 1996.

Current Sentencing Practices

❑ The predominate sentencing structure for most States is an indeterminate sentencing structure (36 States and the District of Columbia).

❑ The vast majority of States, including those that have adopted determinate and sentencing guideline models, have retained some form of discretionary parole release and postrelease supervision. In fact, the use

of postrelease supervision exists even in those States that have abolished parole.

❑ 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/or distributing drugs.

❑ All but Hawaii and Utah allow inmates to earn some form of good

time credits either to reduce a sentence or to advance a parole eligibility date.

❑ Although most States have retained indeterminate sentencing structures,

these laws are becoming increasingly determinate by greater use of mandatory minimums, truth in sentencing provisions, and reducing the

amount of good time credits an inmate can earn while incarcerated. In

other words, States are using models other than sentencing guidelines to

reduce sentencing disparity.
xii

Bureau of Justice Assistance

Sentencing Guideline States

❑ To date, 19 States and the Federal Government have sentencing commissions and 17 States have implemented presumptive or voluntary/

advisory sentencing guidelines.

❑ Of the 17 States that have adopted sentencing guidelines, 10 are presumptive and 7 are voluntary or advisory in nature.

❑ Since the 1994 survey, Missouri, Ohio, and Oklahoma have adopted

sentencing guidelines. Massachusetts, Michigan, and Montana are

studying the possible adoption of guidelines, although it is not clear

whether these States will adopt guidelines. In 1997, the District of Columbia established a sentencing commission as required by Congress.

❑ In 1996, Tennessee and Wisconsin abolished their sentencing commissions. Wisconsin also abolished its guidelines while Tennessee retained

its guidelines.

Juvenile Justice Sentencing Practices

❑ States are making it easier to transfer juveniles to the adult court by

adding specific offenses for transfer and/or lowering the upper age

limit of juvenile court jurisdiction.

❑ Some States have changed their policies on the confidentiality of juvenile records to allow such records to be used in future adult court

proceedings. Some States have also changed their policies by opening

juvenile court proceedings to the public.

❑ A number of States have created laws that make the family, as well as

the juvenile, more accountable for crimes committed by the juvenile.

Responsibilities vary from State to State. For example, some States require parents to pay court or supervision fees, or require parents to pay

fees toward their child’s custody in a State institution or other care.

State Juvenile Waiver Provisions

Three specific methods can be used to transfer a juvenile to adult court:

(1) statutory exclusion laws, where legislation mandates certain crimes

automatically be transferred; (2) judicial waiver, where the juvenile judge

decides to waive the juvenile; and (3) prosecutorial discretion, where

the prosecutor decides to try the juvenile as an adult.

❑ Twenty-four States changed their statutory exclusion laws by adding

crimes, and six States lowered the age limit at which a juvenile can be

transferred.
xiii

1996 National Survey of State Sentencing Structures

❑ Ten States changed their judicial waiver laws by adding crimes, and 11

lowered the age limit a juvenile can be transferred.

Current Transfer Provisions as of 1995

❑ Forty-seven States had provisions for judicial waivers. A juvenile court

judge makes the determination to waive the juvenile based on age, current offense, criminal history, and amenability to rehabilitation.

❑ Eleven States had provisions for prosecutorial waivers. A prosecutor

decides which court has jurisdiction when both the juvenile court and

the adult court have concurrent jurisdiction. The juvenile’s age, current

offense, criminal history, and amenability to rehabilitation may be used

in making this determination.

❑ Thirty-seven States had provisions for statutory exclusions. Juveniles

are automatically excluded from a juvenile court’s original jurisdiction

based on age and/or offense committed.

❑ Twenty-two States had provisions for reverse waivers. These waiver

provisions allow the criminal court to transfer cases from adult court to

juvenile court under certain circumstances.

❑ Eighteen States required that once a juvenile was waived to adult

court, all subsequent charges against him or her were to be prosecuted

in adult court.
1

1996 National Survey of State Sentencing Structures

Structured Sentencing Reform

This study, funded by the Bureau of Justice Assistance (BJA) and conducted by the National Council on Crime and Delinquency (NCCD), is an

updated national survey of State sentencing practices, including those in

the District of Columbia.

The criminal justice community has yet to develop a clear consensus on the

basic definitions of structured sentencing and its goals. States that have

adopted various forms of structured sentencing have done so with multiple goals and expectations. The most frequently cited goals are: (1) increasing sentencing fairness; (2) reducing unwarranted disparity, in the

decision to imprison (dispositional disparity) and/or in sentence length

(durational disparity); (3) establishing truth in sentencing; and (4) 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 those identified as 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 will help them avoid

a severe prison crowding situation by regulating prison population growth

according to available correctional resources. These purposes, however,

are not universally accepted, and the means used to implement them vary

considerably across jurisdictions.

Definitions of Sentencing Practices

A primary objective of the 1996 national survey was to classify each State

according to the type of sentencing practice used. Due to a lack of consensus regarding the meaning of commonly used terms such as determinate

sentencing, indeterminate sentencing, sentencing guidelines, voluntary

sentencing guidelines, presumptive guidelines, and advisory guidelines,

operational definitions were developed to bring some consistency to data

collected from each State. These definitions are defined as follows and

used throughout the report:

Determinate Sentencing

Sentences of incarceration in which the offender is given a fixed term that

may be reduced by “good time” or earned time. Usually explicit standards

specify the amount of punishment and a set release date with no review by

an administrative agency (parole board). Postincarceration supervision

may be part of the sentence.

Chapter 1
2

Bureau of Justice Assistance

Indeterminate Sentencing

Sentences of incarceration 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 violation of the conditions of release. In one form of indeterminate sentencing, the judge specifies only the maximum sentence length (a fixed term); 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 maximum and minimum durations that are set by statute.

The sentencing judge has discretion on the minimum and maximum

sentences.

Mandatory Minimum Sentencing

A minimum sentence that is specified by statute for all offenders convicted

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). Mandatory minimums can be used in both determinate and indeterminate sentencing structures. Within an indeterminate sentencing structure, the mandatory minimum requires the inmate to serve a fixed amount

of time in prison before being eligible for discretionary release. Under a

determinate sentence, the offender is required to serve a fixed amount of

time in prison before being eligible for release without the approval of a

parole board.

Presumptive Sentencing Guidelines

Sentencing that meets all 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; and (3) the guidelines provide for some

review, usually appellate, of the departure. Presumptive guidelines may

employ determinate or indeterminate sentencing structures.

Voluntary Sentencing Guidelines

Recommended sentencing policies that are not required by law. They serve

as a guide and are based on past sentencing practices. The legislature has

not mandated their use. Voluntary/advisory guidelines may use determinate or indeterminate sentencing structures.
3

1996 National Survey of State Sentencing Structures

Survey Results

This study is a followup to the first major national assessment of the various sentencing practices that was conducted in 1994 by the National Council on Crime and Delinquency. The data presented are current as of 1996.

These data are based on States’ responses to a questionnaire that asked

specific questions about their sentencing structure as well as pending legislation on sentencing reform. Followup telephone calls were made to verify

each State’s responses and/or to clarify certain answers.

After careful review of each State’s survey responses, NCCD found that the

type of sentencing practices reported by the State did not accurately reflect

the true nature of its sentencing practice. In some cases NCCD redefined a

State’s sentencing type based on the operational definitions that were developed for this report. For example, States that responded that they have fixed

sentences that are reviewed by a parole board were recategorized from determinate sentencing to an indeterminate sentencing structure.

Determinate, Indeterminate, and Sentencing Guideline

Sentencing Systems

Exhibit 1–1 classifies each State and the District of Columbia by determinate, indeterminate, and/or sentencing guideline structures. In the 1994

survey, the dominant sentencing structure in the United States was indeterminate sentencing; the exhibit shows that this continues to be true in the

1996 survey. A total of 36 States and the District of Columbia were classified as having a predominantly indeterminate sentencing structure,

whereas 14 States were classified as having determinate sentencing (Exhibits 1–1 and 1–2). It should be noted that several States allow for indeterminate sentencing for certain types of crimes. For example, in California,

offenders can receive a 25-year-to-life sentence with the possibility of parole. These inmates are under an indeterminate sentencing structure.

NCCD, however, classified California and other such States as determinate

as the vast majority of offenders are sentenced under a determinate sentencing structure. New York has determinate sentencing for repeat violent

felony offenders but indeterminate sentencing for all other offenders,

which represents the majority of inmates. Hence, NCCD classified this

State as predominantly an indeterminate sentencing State.

Seventeen States have sentencing guidelines in place across the country.

As shown in Exhibit 1–3, seven States were voluntary/advisory and 10

States were presumptive. Another three States are studying the feasibility

of adopting guidelines (Massachusetts, Michigan, and Montana).
4

Bureau of Justice Assistance

Type of Mandatory

Determinate Indeterminate Sentencing Minimum Prison

State Sentencing Sentencing Guidelines Sentencing

Alabama ◆ ◆

Alaska ◆ ◆

Arizona ◆ ◆

Arkansas ◆ Voluntary/ ◆

Advisory

California ◆ ◆

Colorado ◆ ◆

Connecticut ◆ ◆

Delaware ◆ Presumptive ◆

District of ◆ ◆

Columbia

Florida ◆ Presumptive ◆

Georgia ◆ ◆

Hawaii ◆ ◆

Idaho ◆ ◆

Illinois ◆ ◆

Indiana ◆ ◆

Iowa ◆ ◆

Kansas ◆ Presumptive ◆

Kentucky ◆ ◆

Louisiana ◆ Voluntary/ ◆

Advisory

Maine ◆ ◆

Maryland ◆ Voluntary/ ◆

Advisory

Massachusetts ◆ Under Study ◆

Michigan ◆ Under Study ◆

Minnesota ◆ Presumptive ◆

Mississippi ◆ ◆

Missouri ◆ Voluntary ◆

Montana ◆ Under Study ◆

Nebraska ◆ ◆

Nevada ◆ ◆

New Hampshire ◆ ◆

Exhibit 1–1 U.S. Sentencing Practices, February 1996
5

1996 National Survey of State Sentencing Structures

Type of Mandatory

Determinate Indeterminate Sentencing Minimum Prison

State Sentencing Sentencing Guidelines Sentencing

New Jersey ◆ ◆

New Mexico ◆ ◆

New York ◆ ◆

North Carolina ◆ Presumptive ◆

North Dakota ◆ ◆

Ohio1 ◆ Presumptive ◆

Oklahoma ◆ Voluntary/ ◆

Advisory

Oregon ◆ Presumptive ◆

Pennsylvania ◆ Presumptive ◆

Rhode Island ◆ ◆

South Carolina ◆ ◆

South Dakota ◆ ◆

Tennessee2 ◆ Presumptive ◆

Texas ◆ ◆

Utah ◆ Voluntary/ ◆

Advisory

Vermont ◆ ◆

Virginia ◆ Voluntary/ ◆

Advisory

Washington ◆ Presumptive ◆

West Virginia ◆ ◆

Wisconsin2 ◆ ◆

Wyoming ◆ ◆

TOTAL 14 37 17 51

1. Ohio abolished indeterminate sentences in July 1996.

2. Tennessee and Wisconsin continue to have sentencing guidelines; the sentencing

commissions were abolished in 1996.

Prepared by National Council on Crime and Delinquency.

Exhibit 1–1 U.S. Sentencing Practices, February 1996 (continued)
6

Bureau of Justice Assistance

Determinate Indeterminate

Prepared by National Council on Crime and Delinquency.

Exhibit 1–2 Types of Sentencing Practices by State, February 1996

Maryland, which had adopted voluntary guidelines in 1994, suspended

the implementation of newly revised guidelines following harsh criticism

for purporting to reduce selected existing sentences. In Tennessee and Wisconsin, sentencing commissions were abolished by the legislatures but the

guidelines remain.

Mandatory Minimums

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. Several States, however, initially

reported no mandatory sentences because the sentences exist in statute but

are not used, an offender may receive the mandatory sentence but is not

eligible for early release via good time and parole or the sentence is mandatory only because incarceration cannot be suspended. It was decided to

incorporate all these possibilities in the presentation of data.

As shown in Exhibits 1–1 and 1–4, all States have some form of mandatory

sentencing provisions. The most prevalent application of mandatory sentencing is for repeat or habitual offenders (40 States), crimes committed
7

1996 National Survey of State Sentencing Structures

Presumptive Voluntary/Advisory No Sentencing

Guidelines

Prepared by National Council on Crime and Delinquency.

using a deadly weapon (38 States and the District of Columbia), drug possession/trafficking (36 States and the District of Columbia), and drunk

driving (31 States).

Survey responses from Hawaii, Kansas, Kentucky, Maine, Nebraska, New

Mexico, Oklahoma, Oregon, Tennessee, Texas, Vermont, Virginia, Washington, and Wyoming indicate that these jurisdictions do not have mandatory minimums for drug possession or trafficking. Mandatory minimum

sentences are imposed for all the offenses listed in Exhibit 1–4 (as well as

other unlisted offenses) in Colorado, Delaware, Georgia, Illinois, Louisiana, Mississippi, Missouri, Montana, Ohio, Pennsylvania, Rhode Island,

West Virginia, and Wisconsin.

It is not possible to summarize in this chapter all the information collected on

mandatory minimum drug offenses. The types of drugs, the amounts required for mandatory sentences to apply, and the penalties imposed vary

widely. Many States have implemented mandatory sentences for sale of

drugs to minors and sales within a certain distance (usually 1,000 feet) of a

school. Since the 1994 survey, the number of States with mandatory minimum

sentences for crimes in the “other” category nearly tripled from 11 to 32.

Exhibit 1–3 Types of Sentencing Guidelines by State, February 1996
8

Bureau of Justice Assistance

 Mandatory Minimum Offense

Drug

Repeat/ Drunk Possession/ Use/Possess

State Habitual Driving Trafficking Weapon Sex Offense Other

Alabama ◆◆ ◆ ◆

Alaska ◆◆ ◆

Arizona ◆◆ ◆ ◆ ◆

Arkansas ◆◆ ◆ ◆ ◆

California ◆ ◆ ◆ ◆◆

Colorado ◆◆ ◆ ◆ ◆◆

Connecticut ◆ ◆ ◆ ◆◆

Delaware ◆◆ ◆ ◆ ◆◆

District of ◆ ◆

Columbia

Florida ◆ ◆◆

Georgia ◆◆ ◆ ◆ ◆◆

Hawaii ◆ ◆◆

Idaho ◆ ◆◆

Illinois ◆◆ ◆ ◆ ◆◆

Indiana ◆ ◆◆

Iowa ◆ ◆◆ ◆

Kansas ◆

Kentucky ◆◆ ◆ ◆◆

Louisiana ◆◆ ◆ ◆ ◆◆

Maine ◆ ◆

Maryland ◆ ◆ ◆◆

Massachusetts ◆◆ ◆

Michigan ◆◆ ◆ ◆ ◆

Minnesota ◆ ◆◆

1. Not all offenses, especially drunk driving, are felonies. In addition, States may have

mandatory minimum incarceration for only specific types of offenses within each offense

category listed.

Exhibit 1–4 State Offenses1 With Mandatory Minimum

Incarceration Sentences, February 1996
9

1996 National Survey of State Sentencing Structures

 Mandatory Minimum Offense

Drug

Repeat/ Drunk Possession/ Use/Possess

State Habitual Driving Trafficking Weapon Sex Offense Other

Mississippi ◆◆ ◆ ◆ ◆◆

Missouri ◆◆ ◆ ◆ ◆◆

Montana ◆◆ ◆ ◆ ◆◆

Nebraska ◆◆ ◆

Nevada ◆ ◆

New Hampshire ◆ ◆ ◆ ◆◆

New Jersey ◆◆ ◆ ◆ ◆

New Mexico ◆◆ ◆

New York ◆ ◆ ◆◆

North Carolina ◆◆ ◆

North Dakota ◆◆ ◆ ◆

Ohio ◆◆ ◆ ◆ ◆◆

Oklahoma ◆ ◆

Oregon ◆ ◆ ◆◆

Pennsylvania ◆◆ ◆ ◆ ◆◆

Rhode Island ◆◆ ◆ ◆ ◆◆

South Carolina ◆ ◆◆ ◆

South Dakota ◆ ◆ ◆◆

Tennessee ◆◆ ◆◆

Texas ◆◆ ◆◆

Utah ◆ ◆ ◆◆

Vermont ◆ ◆

Virginia ◆ ◆

Washington ◆ ◆◆

West Virginia ◆◆ ◆ ◆ ◆◆

Wisconsin ◆◆ ◆ ◆ ◆◆

Wyoming ◆

Exhibit 1–4 State Offenses1 With Mandatory Minimum

(continued) Incarceration Sentences, February 1996

Prepared by National Council on Crime and Delinquency.
10

Bureau of Justice Assistance

Sentencing Guideline Commissions, Truth in

Sentencing, Parole, and Good Time

Exhibit 1–5 summarizes whether a State had provisions for a sentencing

guidelines commission, truth in sentencing, postrelease supervision of released inmates, and good time provisions. The exhibits that follow provide

detailed descriptions of each sentencing law attribute.

Sentencing Commissions in the United States. States create sentencing

commissions for many reasons. 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 universally accepted, and the means used to implement them vary among jurisdictions. The purposes outlined by many commissions influence nearly

every aspect of the guideline development process. Therefore, each guideline system should be evaluated against its stated goals.

Although sentencing guidelines have been the dominant form of sentencing reform during the past two decades, it is true that the majority of States

have not adopted such sentencing structures and others have tried but

failed to implement them. Indeed, voluntary guidelines may be followed

with some regularity or substantially ignored by sentencing judges. Exhibit 1–6 shows the status of sentencing guidelines commissions in the

United States, and Exhibit 1–7 lists the responsibilities of the various sentencing guidelines commissions. It should be noted that use of the term

commission is a generalization and some entities may use other names but

perform essentially the same functions as sentencing commissions. Nineteen States have sentencing commissions and 17 States have sentencing

guidelines. Of the 17 States with sentencing guidelines, 10 report having

presumptive guidelines, while the remaining seven have voluntary/advisory guidelines (Arkansas, Louisiana, Maryland, Missouri, Oklahoma,

Utah, and Virginia). Survey results indicate that five States with established sentencing commissions are in various stages of guidelines investigation or implementation (Massachusetts, Michigan, Missouri, Montana,

and Oklahoma).

Truth in Sentencing. Thirty States and the District of Columbia responded

affirmatively to the question: “Does your State have truth in sentencing?”

But many States do not define truth in sentencing as a statute that mandates that an offender must serve a certain percentage of the stated sentence. In addition, the percentage of sentence required to be served

frequently varies by the class and degree of the offense. For example, Arizona requires all offenders convicted of homicide and rape or sexual offenses to serve 100 percent of their sentence. All other offenders must serve

85 percent of their sentence.
11

1996 National Survey of State Sentencing Structures

 Parole Release and Supervision1

Sentencing

Guidelines Truth in Discretionary Postrelease

State Commission Sentencing Release Body Supervision Good Time2

Alabama Pending Parole ◆ ◆

Alaska3 Parole ◆ ◆

Arizona ◆ ◆◆

Arkansas ◆ Discretionary ◆ ◆

Release Body

California ◆ ◆◆

Colorado4 ◆ Parole ◆ ◆

Connecticut ◆ Parole ◆ ◆

Delaware ◆◆ ◆ ◆

District of ◆ Parole ◆ ◆

Columbia

Florida ◆◆ ◆ ◆

Georgia ◆ Parole ◆ ◆

Hawaii Parole ◆

Idaho Parole ◆ ◆

Illinois ◆ ◆◆

Indiana ◆ ◆

Iowa ◆ Parole ◆ ◆

Kansas ◆ ◆ Parole ◆ ◆

Kentucky ◆ Parole ◆ ◆

Louisiana ◆ ◆ Parole ◆ ◆

Maine ◆

Maryland ◆ Parole ◆ ◆

Massachusetts ◆ Parole ◆ ◆

Exhibit 1–5 U.S. Sentencing Commissions, Truth in Sentencing,

Parole, and Good Time Provisions, February 1996

1. All States and the District of Columbia maintain one or more parole release and

supervision options.

2. Category includes automatic and earned good time such as educational programs,

training, work programs, and good behavior.

3. In Alaska, the State’s Judicial Council functions very much as a sentencing commission.

4. Beginning in 1995 certain nonviolent offenders are allowed to accrue earned time while

on parole.
12

Bureau of Justice Assistance

 Parole Release and Supervision1

Sentencing

Guidelines Truth In Discretionary Postrelease

State Commission Sentencing Release Body Supervision Good Time2

Michigan5 ◆ ◆ Discretionary ◆ ◆

Release Body

Minnesota ◆◆ ◆ ◆

Mississippi ◆ ◆◆

Missouri ◆ ◆ Parole ◆ ◆

Montana ◆ ◆ Parole ◆ Until 1/97

Nebraska Parole ◆ ◆

Nevada Parole ◆ ◆

New Hampshire ◆ Parole ◆ ◆

New Jersey Parole ◆ ◆

New Mexico ◆ ◆

New York ◆ Parole ◆ ◆

North Carolina ◆◆ ◆ ◆

North Dakota ◆ Parole ◆ ◆

Ohio ◆◆ ◆ ◆

Oklahoma ◆ ◆ Parole ◆ ◆

Oregon ◆◆ ◆ ◆

Pennsylvania ◆ ◆ Parole ◆ ◆

Rhode Island Parole ◆ ◆

South Carolina Under Study ◆ Parole ◆ ◆

South Dakota Parole ◆ ◆

Tennessee6 ◆ Parole ◆ ◆

Texas Parole ◆ ◆

Utah ◆ ◆ Parole ◆

Vermont Parole ◆ ◆

Exhibit 1–5 U.S. Sentencing Commissions, Truth in Sentencing,

(continued) Parole, and Good Time Provisions, February 1996

5. Legislation had been passed for truth in sentencing but had not yet been implemented.

6. The sentencing commission was recently abolished, but sentencing guidelines remain.
13

1996 National Survey of State Sentencing Structures

 Parole Release and Supervision1

Sentencing

Guidelines Truth in Discretionary Postrelease

State Commission Sentencing Release Body Supervision Good Time2

Virginia ◆◆ ◆ ◆

Washington ◆◆ ◆ ◆

West Virginia Parole ◆ ◆

Wisconsin6,7 Parole ◆ ◆

Wyoming Parole ◆ ◆

Sentencing Guidelines

Commission

Under Study No Commission

Exhibit 1–6 Status of U.S. Guidelines Commissions, February 1996

Prepared by National Council on Crime and Delinquency.

Exhibit 1–5 U.S. Sentencing Commissions, Truth in Sentencing,

(continued) Parole, and Good Time Provisions, February 1996

7. Good time no longer exists in Wisconsin. Instead it has “bad time,” which allows

jurisdictions to add time to the mandatory release date.

Prepared by National Council on Crime and Delinquency.
14

Bureau of Justice Assistance

Use of Parole Release, Postrelease Supervision, and Good Time. Despite

increases in mandatory sentencing, 35 States and the District of Columbia

have administrative boards that consider the release of inmates who were

sentenced to incarceration under 1996 sentencing policies. Additional

States continue to have boards that consider the release of inmates who

were admitted to prison under older sentencing laws.

Monitor Draft Conduct Provide Provide

Sentencing Legislation Impact Training Technical

State Practices for Revisions Studies Evaluation Assistance Other

Alabama ◆ ◆◆

Arkansas ◆ ◆ ◆ ◆ ◆◆

Delaware ◆ ◆◆ ◆

Florida ◆◆ ◆

Kansas ◆ ◆ ◆ ◆ ◆◆

Louisiana ◆ ◆ ◆◆ ◆

Maryland ◆ ◆◆

Massachusetts1 ◆◆ ◆

Michigan1 ◆ ◆◆ ◆

Minnesota ◆ ◆◆ ◆

Missouri1 ◆ ◆

Montana1 ◆◆ ◆

North Carolina ◆ ◆ ◆ ◆ ◆◆

Ohio ◆ ◆ ◆◆ ◆

Oklahoma1 ◆ ◆ ◆◆ ◆

Oregon ◆ ◆◆ ◆

Pennsylvania ◆ ◆ ◆◆ ◆

Utah ◆ ◆ ◆ ◆◆

Virginia ◆◆ ◆

Washington ◆ ◆ ◆ ◆◆

Exhibit 1–7 Responsibilities of State Sentencing Guidelines

Commissions, February 1996

1. State initiated a commission and is in the early stages of studying guidelines implementation and commission responsibility.

Prepared by National Council on Crime and Delinquency.
15

1996 National Survey of State Sentencing Structures

The survey asked some questions regarding discretionary release from prison.

All States and the District of Columbia reported having parole or some other

form of postrelease supervision option. Maine and Virginia, for example, do not

have any form of strictly defined postrelease supervision, except for inmates

who are still under the old sentencing structure. Even in these States, however,

probation supervision is often required after an inmate has completed the

prison sentence. And the offender receives a prison sentence followed by probation supervision. In Florida and Washington State, parole in its purest sense

has been eliminated, but has been replaced by a form of postrelease supervision

that is not called parole. Exhibit 1–8 shows that postrelease supervision exists

even in those States that have abolished parole.

Forty-eight States and the District of Columbia provide some form of credit

that inmates can obtain to reduce the amount of time incarcerated. These

credits may be earned or automatic. Offenders can earn credits through educational training, and work programs and for good behavior. The type of

credit that can be earned varies by State.

Year Discretionary

Parole Was Postrelease Supervision Available After Abolishment of

State Abolished Discretionary Release by Parole Board

Arizona 1994 Community supervision.

Delaware 1990 Administrative supervision, field supervision, intensive

supervision, electronic monitoring, and halfway houses.

Florida 1983 Conditional release and controlled release.

Illinois 1978 Mandatory supervised release.

Maine 1976 Probation term can be imposed by the court after

prison term is completed.

Minnesota 1982 Supervised release.

Mississippi 1995 Earned release supervision.

North 1994 Postrelease supervision for most serious offenses.

Carolina

Ohio 1996 Judicial release, shock incarceration, and furlough

with judicial approval.

Oregon 1989 Community supervision.

Virginia 1995 Probation term can be imposed by the court after

prison term is completed.

Washington 1984 Community custody and community supervision.

Prepared by National Council on Crime and Delinquency.

Exhibit 1–8 Postrelease Practices in States That Have Abolished

Parole, February 1996
16

Bureau of Justice Assistance

Through the survey and followup telephone calls, NCCD was able to obtain information on States that have provisions that allow inmates to reduce their sentence. As a result of changes in sentencing laws within some

States, good time provisions have had to be revised. For example, in a State

that enacts truth in sentencing laws that require inmates to serve 85 percent of their sentence, a maximum of 15 percent of good time can be

earned. In Mississippi and Virginia inmates can earn up to 30 days of good

time credits for every 30 days served in prison prior to abolishment of parole and enactment of truth in sentencing. By early 1996, good time credits

were restricted to no more than 15 percent of sentences in those States.

Two- and Three-Strikes Laws

Most States that have passed two- and three-strikes laws had preexisting

sentencing laws that addressed repeat and habitual offenders.1

The two- and three-strikes laws are intended to significantly increase the

prison sentences of persons convicted of specific crimes who have been

previously convicted of a violent or serious felony offense. Which offenses

are counted as a “strike” varies by State. In addition, the two- and threestrikes laws limit the possibility of offenders receiving anything other than

a prison sentence.

Exhibit 1–9 lists the States that had passed “two or three strikes and you’re

out” legislation as of February 1996. The overwhelming majority of these

laws were enacted between 1993 and 1995. Only Iowa had such legislation

pending as of February 1996.

Chain Gangs

Chain gangs have recently received a great deal of public attention. Public

opinion varies about whether chain gangs should be used. Opponents find

that chain gangs are too barbaric for modern times. Those in favor of this

program feel that it incapacitates some and deters others who might attempt to flee a less restrictive outside work crew. Despite all the controversy, five States enacted legislation to use chain gangs (Exhibit 1–10).

Alabama, Arizona, Florida, Iowa, and Maine currently use chain gangs,

and another six States had legislation pending (California, Georgia, Indiana, Kansas, Oklahoma, and Wisconsin). Oklahoma had chain gang legislation under study.

1. For a more detailed discussion refer to the report by John Clark et al., Three Strikes and

You're Out: A Review of State Legislation.
17

1996 National Survey of State Sentencing Structures

State Number of Strikes Required Year Enacted

Arkansas 2/3 1995

California 2/3 1994

Colorado 3 1994

Connecticut 3 1994

Florida 3 1995

Georgia 2/4 1995

Indiana 3 1994

Kansas 2/3 1994

Louisiana 3/4 1994

Maryland 4 1994

Montana 2/3 1995

Nevada 3 1995

New Jersey 3 1995

New Mexico 3 1994

North Carolina 3 1994

North Dakota 2 1995

Pennsylvania 2/3 1995

South Carolina 2 1995

Tennessee 2/3 1995

Utah 3 1995

Vermont 3 1995

Virginia 3 1994

Washington 3 1993

Wisconsin 3 1994

Prepared by National Council on Crime and Delinquency.

Exhibit 1–9 Two- and Three-Strikes Laws, February 1996
18

Bureau of Justice Assistance

State Chain Gangs Pending Legislation

Alabama ◆

Arizona ◆

California ◆

Florida ◆

Georgia ◆

Indiana ◆

Iowa1 ◆

Kansas ◆

Maine2 ◆

Oklahoma3 ◆

Wisconsin ◆

1. Legislation passed, and implementation plans were being finalized.

2. Called Public Work Crews.

3. Chain gang legislation was under study.

Prepared by National Council on Crime and Delinquency.

Exhibit 1–10 Use of Chain Gangs, February 1996

Summary

States have been making numerous changes to their sentencing structures.

The vast majority of these reforms have increased incarceration rates,

worsened prison crowding, and eliminated disparity in sentencing.

It is interesting to note that not all sentencing structure changes are as they

seem. For example, a number of States have reported that they have abolished parole. In fact these States have maintained an alternative form of

postrelease supervision, similar to parole, that is not well publicized.

Furthermore, although most States have retained indeterminate sentencing

structures, these laws are becoming increasingly determinate structure

States by greater use of mandatory minimums, truth in sentencing provisions, and reduction in the amount of good time credits an inmate can earn

while incarcerated. In other words, States are using models other than sentencing guidelines to reduce sentencing disparity. Since 1994, no additional State has adopted guidelines although five States are reviewing the

feasibility of such a sentencing model.
19

1996 National Survey of State Sentencing Structures

Juvenile Justice Reform

This chapter provides an overview of recent changes in juvenile justice legislation that have occurred, in part to combat increases in juvenile arrests

for violent crimes.1

 The criminal justice system and the public are moving

away from the more traditional juvenile court. The juvenile court system

has moved away from a philosophy based on rehabilition and toward one

based on punishment. Emphasis, particularly for violent crime, tends to be

on the offense committed and societal interests instead of the child and

what is best for him or her.

With the increase in violent juvenile crime (Exhibit 2–1), public concern

has also increased. The arrest rates for violent juvenile crimes has steadily

increased from 1965 to 1995. Society is increasingly demanding retribution

and incapacitation for violent juveniles. It is believed that a major way to

accomplish punitiveness is to hold the juvenile criminally responsible by

treating and processing him or her as an adult.

Whether a juvenile is capable of determining right from wrong has become

increasing irrelevant. Changes in various States’ criminal justice legislation

have made it easier to charge a violent juvenile as an adult. Policymakers

believe that these changes will deter offenders and potential offenders,

thereby reducing the crime rate. It is important to note that these changes

have not come about as a result of any empirical evidence that would justify such policy reforms but may be better viewed as political responses to

heightened public concern about crime and criminal justice.2

 Recent studies conducted by Donna Bishop3 and Jeffrey Fagan4 have found that juveniles transferred to the adult system in Florida, New York, and New Jersey

were significantly more likely to be rearrested (by almost 30 percent) than

those retained in juvenile court.5

Chapter 2

1. Information was obtained from sources such as the National Conference of State

Legislators and the U.S. Department of Justice, Office of Juvenile Justice Programs, Office of

Juvenile Justice and Delinquency Prevention.

2. Both the 1994 and the 1996 studies used samples that were matched for age, current

offense, prior offenses, and other characteristics.

3. Donna M. Bishop, et al., “The Transfer of Juveniles to Criminal Court: Does It Make a

Difference?” Crime and Delinquency, 42(2), 1996, pp. 171–191.

4. Jeffrey Fagan, “The Comparative Advantage of Juvenile Versus Criminal Court Sanctions on Recidivism Among Adolescent Felony Offenders,” Law and Policy, 18(1&2), 1996,

pp. 77–114. The study compared 16-year-olds in New York who, by statute, are considered

adults and are prosecuted in criminal court and 16-year-olds in nearby New Jersey who, by

statute, are considered juveniles and prosecuted in juvenile court.

5. Both studies used samples that were matched for age, current offense, prior offenses,

and other characteristics.
20

Bureau of Justice Assistance

Source: Federal Bureau of Investigation, Age-Specific and Race-Specific Arrest for Selected Offenses,

1965–1992; Federal Bureau of Investigation, Uniform Crime Reports Program, 1993–1994; and U.S.

Department of Justice, “Remarks of Attorney General Janet Reno on the Decrease in Youth Violence

in 1995,” National Conference of State Legislatures.

Prepared by National Council on Crime and Delinquency.

0

100

200

300

400

500

600

1965 1970 1975 1980 1985 1990 1995

Year

Arrests per 100,000 youth

Exhibit 2–1 Violent Crime Index Arrest Rates for Juveniles,

Ages 10–17, 1965–1995

Changes in Juvenile Laws

Exhibit 2–2 lists changes in juvenile laws that have occurred between 1994

and 1995. The most common change in State juvenile laws has been in

transferring juveniles to the adult court system. States have increased the

number of juveniles who are eligible for waivers by adding specific offenses and lowering the age limit of juvenile court jurisdiction. These actions have resulted in either juveniles being automatically waived or

juvenile judges and/or prosecutors having more discretion in deciding

which juveniles should be prosecuted as adults.

A number of States have changed their laws with regard to a juvenile’s

criminal record and/or court proceedings. The juvenile court has traditionally protected a juvenile by sealing his or her record and closing court proceedings. Some States have changed their policies on confidentiality of

juvenile records to allow these records to be used in future adult court proceedings. In the past 2 years, 17 States have either opened the juvenile

court proceedings to the public or opened juvenile records to the public or

to selected law enforcement authorities.
21

1996 National Survey of State Sentencing Structures

A number of States have created laws that make the family, as well as the

juvenile, more accountable for crimes committed. Fifteen States have created laws that force parents to take responsibility for the crimes of their

children. Responsibilities can vary from State to State. For example, Idaho,

Indiana, and New Hampshire passed legislation in 1995 that requires parents to pay fees toward their child’s custody in a State institution or other

care. Arizona, Illinois, and Oregon passed legislation in the same year that

requires parents to pay court or supervision fees.

Florida and Texas have passed juvenile justice legislation that is equivalent

to the “three strikes and you’re out” laws in adult court systems. In these

cases, the difference is that three strikes classifies an individual as an adult

for court proceedings.

State Waiver Provisions

As mentioned earlier, most States are making it easier to transfer a juvenile

to the adult court system. Three specific methods can be used to transfer a

juvenile:

❏ Statutory exclusion laws, whereby legislation mandates that certain

crimes automatically be transferred.

❏ Judicial waiver, whereby the juvenile judge decides to waive the

juvenile.

❏ Prosecutorial discretion, whereby the prosecutor decides to try the

juvenile as an adult.

Exhibit 2–3 presents a summary of specific changes States have made in

each method of transferring a juvenile during the period from 1992 to 1995.

Changes in statutory exclusion laws are increasing the number of juveniles

who are automatically transferred. The circumstance of the offense, family

situation, and history of the juvenile are irrelevant. Twenty-four States

changed their statutory exclusion laws by adding crimes, and six States

lowered the age at which a juvenile can be transferred. Four of these States

both lower the age limit and added crimes.

With regard to judicial waivers whereby the decision to transfer is left up

to the juvenile court judge, 10 States added crimes and 11 lowered the age

limit. Of these, five States both lowered the age limit and added crimes.

Exhibit 2–4 provides a breakdown of the different provisions available to

each State for transferring a juvenile to adult court as of 1995. The most

standard provisions available were judicial waivers, which were used by

46 States and the District of Columbia. Based on certain criteria, such as the

juvenile’s age, current offense, criminal history, and amenability to rehabilitation, the juvenile court judge would decide whether to waive the juvenile to adult court.
22

Bureau of Justice Assistance

Transfer to Opening

Adult Court Juvenile Parental Victims’ Three

State System1 Fingerprinting2 Court3 Responsibility4 Rights5 Strikes6

Alaska ◆

Arizona ◆ ◆◆

Arkansas ◆ ◆

California ◆ ◆◆

Colorado ◆ ◆

Connecticut ◆ ◆◆

Delaware ◆

Florida ◆ ◆◆ ◆

Georgia ◆

Hawaii ◆

Idaho ◆ ◆◆◆

Illinois ◆ ◆◆

Indiana ◆ ◆◆

Iowa ◆ ◆

Kansas7

Kentucky ◆ ◆ ◆◆

Louisiana ◆ ◆◆

Maine ◆

Maryland ◆ ◆

Massachu- ◆

setts

1. This covers three types of specific changes: (1) statutory exclusion laws, whereby the

legislature has mandated that certain types of crimes will automatically be transferred to

adult court; (2) judicial waiver, whereby judges have the right to transfer youths; and (3)

prosecutorial discretion, whereby prosecutors can determine which youths to send to adult

courts.

2. Allowing juveniles to be fingerprinted.

3. Opening court proceedings to the public or opening juvenile records to the public or

selected law enforcement authorities.

4. New laws forcing parents to take responsibility for the crimes of their children, sometimes paying fines or making restitution.

5. Extending victims’ rights to juvenile courts, such as making sure victims can sit in on

juvenile court sessions, or are notified of results, or in some cases are paid restitution.

6. Equivalents to the “three strikes and you’re out” laws. Only in these cases it is three

strikes and you are an adult.

7. States making changes other than those listed.

Exhibit 2–2 Changes in State Juvenile Laws, 1994–1995
23

1996 National Survey of State Sentencing Structures

Exhibit 2–2 Changes in State Juvenile Laws, 1994–1995

(continued)

Transfer to Opening

Adult Court Juvenile Parental Victims’ Three

State System1 Fingerprinting2 Court3 Responsibility4 Rights5 Strikes6

Minnesota ◆

Mississippi ◆

Missouri ◆ ◆ ◆◆

Montana7

Nevada ◆ ◆

New ◆ ◆◆

Hampshire

New Jersey ◆

New ◆

Mexico

New York ◆

North ◆ ◆ ◆◆

Dakota

Ohio ◆ ◆

Oklahoma7

Oregon ◆◆ ◆

Penn- ◆ ◆

sylvania

Rhode ◆

Island

South ◆

Carolina

Tennessee ◆

Texas ◆◆ ◆

Utah ◆

Vermont ◆ ◆

Virginia ◆ ◆◆ ◆

Washington7

West ◆ ◆

Virginia

Wisconsin ◆

Source: National Conference of State Legislatures.

Prepared by National Council on Crime and Delinquency.
24

Bureau of Justice Assistance

Alabama ◆

Alaska ◆ ◆◆

Arkansas ◆ ◆

California ◆ ◆

Colorado ◆◆ ◆

Connecticut ◆

Delaware ◆

District of ◆

Columbia

Florida ◆

Georgia ◆

Idaho ◆ ◆◆

Illinois ◆ ◆

Indiana ◆

Iowa ◆

Kansas ◆

Kentucky ◆

Louisiana ◆

Maryland ◆

Minnesota ◆ ◆

Mississippi ◆ ◆

Missouri ◆ ◆

Nevada ◆ ◆◆

New ◆

Hampshire

New ◆

Mexico

Price

Reward

Prisons

Judicial Waiver

State

Presumptive

Waiver

Enacted

Provisions

Concurrent

Jurisdiction

Enacted/

Modified

Added

Crimes

Lowered

Age Limit Other

Statutory Exclusion

Added

Crimes

Lowered

Age Limit

Exhibit 2–3 Types of Judicial Waiver and Statutory Exclusion

by State, 1992–1995
25

1996 National Survey of State Sentencing Structures

North ◆ ◆

Carolina

North ◆ ◆◆

Dakota

Ohio ◆ ◆

Oklahoma ◆

Oregon ◆◆ ◆ ◆

Penn- ◆

sylvania

Rhode ◆

Island

South ◆ ◆◆

Carolina

South ◆

Dakota

Tennessee ◆ ◆

Texas ◆

Utah ◆ ◆◆

Virginia ◆

Washington ◆

West ◆ ◆◆

Virginia

Wisconsin ◆◆ ◆

Wyoming ◆

Price

Reward

Prisons

Judicial Waiver

State

Presumptive

Waiver

Enacted

Provisions

Concurrent

Jurisdiction

Enacted/

Modified

Added

Crimes

Lowered

Age Limit Other

Statutory Exclusion

Added

Crimes

Lowered

Age Limit

Exhibit 2–3 Types of Judicial Waiver and Statutory Exclusion

(continued) by State, 1992–1995

Source: U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, State

Responses to Serious and Violent Juvenile Crime, July 1996.

Prepared by National Council on Crime and Delinquency.
26

Bureau of Justice Assistance

Judicial Prosecutor Statutory Presumptive Reverse Once Waived/

State Waiver Waiver Exclusion Waiver Waiver Always Waived

Alabama ◆◆ ◆

Alaska ◆ ◆◆

Arizona ◆ ◆

Arkansas ◆◆ ◆

California ◆ ◆

Colorado ◆◆ ◆ ◆

Connecticut 1 ◆ ◆

Delaware ◆◆ ◆

District of ◆◆◆ ◆ ◆

Columbia

Florida ◆◆◆ ◆

Georgia ◆◆◆ ◆

Hawaii ◆◆ ◆

Idaho ◆◆ ◆

Illinois ◆ ◆◆

Indiana ◆ ◆

Iowa ◆ ◆

Kansas ◆◆ ◆

Kentucky ◆◆ ◆

Louisiana ◆◆◆

Maine ◆ ◆

Maryland ◆◆ ◆

Massachu- ◆ ◆

setts

Michigan ◆ ◆

Minnesota ◆ ◆◆

Mississippi ◆ ◆ ◆◆

Missouri ◆ ◆

Montana ◆ ◆

Nebraska ◆ ◆

Exhibit 2–4 Summary of Juvenile Transfer Provisions, 1995

1. Connecticut removed its judicial waiver provision in 1995.
27

1996 National Survey of State Sentencing Structures

Judicial Prosecutor Statutory Presumptive Reverse Once Waived/

State Waiver Waiver Exclusion Waiver Waiver Always Waived

Nevada ◆ ◆ ◆◆

New ◆◆ ◆ ◆ ◆

Hampshire

New Jersey ◆

New Mexico ◆

New York ◆ ◆

North ◆ ◆

Carolina

North ◆ ◆◆

Dakota

Ohio ◆◆ ◆

Oklahoma ◆◆ ◆

Oregon ◆◆ ◆

Penn- ◆ ◆ ◆◆

sylvania

Rhode ◆ ◆◆

Island

South ◆ ◆ ◆◆

Carolina

South ◆ ◆

Dakota

Tennessse ◆◆ ◆

Texas ◆ ◆ ◆◆

Utah ◆ 2 ◆ ◆

Vermont ◆◆◆ ◆ ◆

Virginia ◆ ◆◆

Washington ◆ ◆

West ◆◆ ◆

Virginia

Wisconsin ◆ ◆◆

Wyoming ◆◆ ◆

Exhibit 2–4 Summary of Juvenile Transfer Provisions, 1995

(continued)

2. Utah’s direct-file statute was repealed in 1995.

Source: U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, State

Responses to Serious and Violent Juvenile Crime, July 1996.

Prepared by National Council on Crime and Delinquency.
28

Bureau of Justice Assistance

In 1995, prosecutorial waivers were used by 11 States. The prosecutor decides which court will have jurisdiction when both the juvenile court and

the adult court have concurrent jurisdiction. The juvenile’s age, current offense, criminal history, and amenability to rehabilitation may be used in

making this determination.

Statutory exclusions were used by 36 States and the District of Columbia.

Juveniles are automatically excluded from the juvenile court’s original jurisdiction based on age and/or offense criteria. A number of States have

lowered the upper age of original juvenile court jurisdiction.

Presumptive waivers were used by 12 States and the District of Columbia.

These waiver provisions require that certain offenders, usually serious and

violent offenders, be waived unless they can prove they would benefit

more from the juvenile system.

Reverse waivers were allowed in 22 States. These waiver provisions allow

the criminal court to transfer cases from adult court to juvenile court under

certain circumstances. For example, a State may stipulate that a juvenile

arrested for a specific type of crime has the option of using the reverse

waiver.

Once a juvenile is waived to adult court, 17 States and the District of Columbia required all subsequent charges against that juvenile be prosecuted

in adult court.

Summary

The juvenile court is becoming increasingly similar to the adult court system. Changing policies on fingerprinting juveniles, opening juvenile court

proceedings to the public, and/or opening juvenile records that were once

confidential are, in essence, creating a juvenile criminal history record.

Changes in States’ waiver provision laws will result in an increasing number of juveniles prosecuted in the adult court system. States have made it

easier for a juvenile to be automatically transferred by adding specific offenses and lowering the age that a juvenile can be transferred. In addition,

States have made it easier for a juvenile judge to transfer a juvenile to the

adult court system by adding more crimes and lowering the age limit.

These changes are disturbing, given that there is no evidence that prosecuting juveniles as adults reduces crime. In fact, research has shown that

juveniles prosecuted as adults have higher recidivism rates than those who

remain in the juvenile system. It is evident that changes in waiver provision laws have been based on public or political perception and not on

empirical evidence.
29

1996 National Survey of State Sentencing Structures

Major Findings, Policy

Implications, and

Recommendations

Structured Sentencing Reform

The past decade has brought significant activity in sentencing reform in

the adult criminal justice system. Most States have instituted reforms to increase the certainty of sentencing decisions by adopting mandatory sentencing provisions, truth in sentencing, 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.

Structured Sentencing Reform:

Major Findings

Current Sentencing Practices

❏ An unprecedented number of structured sentencing reforms have

taken place over the past two decades. The Federal Government and 17

States have implemented presumptive or voluntary/advisory sentencing guidelines.

❏ Another popular form of structured sentencing is mandatory minimum

sentencing laws. All States employ some version of mandatory minimum sentencing laws, which target habitual offenders (“two or 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/or distribution of drugs.

❏ Most States continue to allow inmates to earn some form of good time

credits either to reduce an inmate’s sentence or to advance an inmate’s

parole eligibility date.

❏ Despite the level of criticism directed at parole, most States, including

those that have adopted determinate and sentencing guideline models,

have retained some form of discretionary release and postrelease

supervision.

Chapter 3
30

Bureau of Justice Assistance

❏ Although several States have converted to guideline-based sentencing,

most States do not use sentencing guidelines.

Sentencing Guideline Models: Purposes and Goals

❏ Virtually all guideline commissions were asked to meet the multiple

goals of punishment (just deserts), deterrence, incapacitation, and

rehabilitation.

❏ Few jurisdictions explicitly state a goal of eliminating disparity with

respect to race, gender, or social or economic status.

❏ Only a few guideline commissions were required to consider the impact of guidelines on the need for future correctional resources (e.g.,

number of new prison beds).

Structured Sentencing Reform:

Policy Implications

Reducing Disparity While Maintaining Discretion

The decision 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

judges who must determine not only what they perceive as just sentences,

but also the best use of State and local correctional resources. A major

question is whether the development of structured sentencing and

presumptive sentencing guidelines, in particular, can overcome wellestablished organizational values that may facilitate and protect inequitable sentencing practices.

Displacement of Discretion

A key issue 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

often 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. They could have an impact in the future. However, until the legislators and sentencing commissions can isolate pressures to get tough on crime, there is little reason to believe that

structured sentencing models will solve the prison crowding problem.
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1996 National Survey of State Sentencing Structures

Moreover, 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.

Structured Sentencing Reform:

Recommendations

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.

More research is needed to assess whether guidelines and other forms of

structured sentencing reduce sentencing disparity. A number of States

have implemented, or are about to implement, sentencing guidelines. Independent process evaluations and impact evaluations of these structured

sentencing practices would be valuable to the field.

A better understanding is also needed concerning the effect of reforms that

are external to the guidelines on sentencing disparity. 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.

Juvenile Justice Reforms

Changes in juvenile justice legislation have had an effect on the fundamental philosophy of the system. The juvenile court system is becoming increasingly similar to the adult court system. The juvenile court philosophy

is one of punishment rather than of rehabilitation, particularly for violent

crime. Emphasis has been shifting from the best interest of the child to the

offense committed and societal interests. These changes can be linked to

the public’s concern over the increase in violent juvenile crime.

It is believed that the best way to handle juveniles who commit a violent

crime is to hold them criminally responsible by treating and processing them

as adults. States have been making it easier to accomplish this by adding specific offenses and lowering the age for prosecution in adult court.
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Bureau of Justice Assistance

Juvenile Justice Reforms: Major Findings

Changes in Juvenile Laws

❏ Thirty-five States have made it easier to transfer juveniles to the adult

court by adding specific offenses for transfer and/or lowering the

upper age limit of juvenile court jurisdiction.

❏ Some States have changed their policies on confidentiality of juvenile

records to allow such records to be used in future adult court proceedings. Seventeen States have either opened juvenile court proceedings to

the public or opened juvenile records to the public/selected law

enforcement authorities.

❏ A number of States have created laws that make parents more accountable for crimes committed by their child or children. Responsibilities

vary from State to State. For example, some States require parents to

pay court or supervision fees or require parents to pay fees toward their

child’s custody in a State institution or other care.

State Waiver Provisions as of 1995

Three specific methods can be used to transfer a juvenile to adult court:

(1) statutory exclusion laws, whereby legislation mandates certain crimes

automatically be transferred; (2) judicial waiver, whereby the juvenile

judge decides to waive the juvenile; and (3) prosecutorial discretion,

whereby the prosecutor decides to try the juvenile as an adult.

❏ Twenty-four States changed their statutory exclusion laws by adding

crimes, and six States lowered the age limit a juvenile can be

transferred.

❏ Ten States changed their judicial waiver laws by adding crimes, and 11

lowered the age limit a juvenile can be transferred.

Current Transfer Provisions

❏ Forty-seven States and the District of Columbia had provisions for judicial waivers. The juvenile court judge makes the determination to

waive the juvenile based on age, current offense, criminal history, and

amenability to rehabilitation.

❏ Eleven States had provisions for prosecutorial waivers. The prosecutor

decides which court will have jurisdiction when both the juvenile

court and the adult court have concurrent jurisdiction. The juvenile’s

age, current offense, criminal history, and amenability to rehabilitation

may be used in making this determination.
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1996 National Survey of State Sentencing Structures

❏ Thirty-seven States and the District of Columbia had provisions for statutory exclusions. Juveniles are automatically excluded from the juvenile

court’s original jurisdiction based on age and/or offense committed.

❏ Twenty-two States have provisions for reverse waivers. These waiver

provisions allow the criminal court to transfer cases from adult court to

juvenile court under certain circumstances.

❏ Eighteen States and the District of Columbia require that once a juvenile is waived to adult court, all subsequent charges against him or her

are to be prosecuted in adult court.

Juvenile Justice Reforms:

Policy Implications

Changes in States’ waiver provision laws will result in an increasing number of juveniles prosecuted in the adult court system. In addition, more juveniles will become eligible to be transferred when States add offenses

and/or lower the age limit for which a juvenile can be waived. There is a

great deal of discretion in deciding which juveniles should be waived

when the juvenile judge and/or prosecutor make this determination.

The adult court system has had to address an increasing number of issues

in regard to juveniles waived to the adult system. Policies for housing, pretrial detention, programs and services, and obtaining copies of complete

juvenile records need to be implemented in the adult court system as an

increasing number of juvenile are waived.

Juvenile Justice Reforms:

Recommendations

More research is needed to assess changes in the juvenile justice system.

Changes in legislation should be driven not by public or political perception

but by empirical evidence. Independent process evaluations and impact

evaluations of States’ waiver provision laws should be conducted prior to any

revisions to legislation. Topics of research should include a comparison of recidivism rates, sentence length, and programs and services provided to juveniles waived to adult court and those that remain in juvenile court.
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1996 National Survey of State Sentencing Structures

Bibliography

Bishop, Donna M., Charles E. Frazier, Lonn Lanza-Kaduce, and Lawrence

Winner. “The Transfer of Juveniles to Criminal Court: Does It Make a Difference?” Crime and Delinquency, 42(2), 1996, pp. 171–191.

Clark, John, James Austin, and D. Alan Henry. Three Strikes and You’re Out:

A Review of State Legislation, Washington, DC: National Institute of Justice,

September 1997, p. 14.

Fagan, Jeffrey. “The Comparative Advantage of Juvenile Versus Criminal

Court Sanctions on Recidivism Among Adolescent Felony Offenders,” Law

and Policy, 18(1&2), 1996, pp. 77–114.

Federal Bureau of Investigation. Age-Specific and Race-Specific Arrest for

Selected Offenses, 1965–1992, Washington, DC: U.S. Department of Justice,

1995.

Federal Bureau of Investigation. Uniform Crime Reports Program, 1993–1994,

Washington, DC: U.S. Department of Justice, 1995.

National Conference of State Legislators, Conference Proceedings, Washington, DC, July–August 1996.

U.S. Department of Justice. “Remarks of Attorney General Janet Reno on

the Decrease in Youth Violence in 1995,” National Conference of State Legislators, Conference Proceedings, Washington, DC, July–August 1996.

U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. State Responses to Serious and Violent Juvenile Crime, Washington,

DC, July 1996.

Appendix A
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Appendix B 1996 National Survey of State Sentencing Structures

Sources for Further

Information

For more information on structured sentencing, contact:

Bureau of Justice Assistance

810 Seventh Street NW.

Washington, DC 20531

202–514–6278

Bureau of Justice Assistance Clearinghouse

P.O. Box 6000

Rockville, MD 20849–6000

1–800–688–4251

E-mail: askncjrs@ncjrs.org

National Council on Crime and Delinquency

1325 G Street NW., Suite 770

Washington, DC 20005

202–638–0556