Monograph

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Assistance

Bureau of Justice Assistance

National Assessment

of Structured Sentencing

DEPARTMENT OF JUSTICE

OFF ICE OF JUSTICE PROGRAMS

BJA NI J OJJ DP BJS OVC
ii

Bureau of Justice Assistance

Bureau of Justice Assistance

633 Indiana Avenue NW., Washington, DC 20531

U.S. Department of Justice Response Center

800–421–6770

Bureau of Justice Assistance Clearinghouse

800–688–4252

Bureau of Justice Assistance Internet Address

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

This document was prepared by the National Council on

Crime and Delinquency, supported by grant number

92–SA–CX–0003 awarded by the Bureau of Justice

Assistance, U.S. Department of Justice. The opinions,

findings, and conclusions or recommendations expressed

in this document are those of the authors and do not

necessarily represent the official position or policies

of the U.S. Department of Justice.

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.
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Monograph

Foreword

With the incidence of violent crime continuing to rise and public

demands for harsher and more certain punishment increasing, many States

are examining sentencing of offenders with an eye to instituting

reforms. Indeed, considerable reform of criminal justice sentencing has

already taken place over the past two decades.

Although these reforms have come primarily as a response to criticism

of rehabilitation attempts, they have sought to accomplish widely differing

goals, including reducing disparity that results from discretionary sentencing, increasing sentencing fairness, establishing truth in sentencing, and

balancing sentencing policy with limited correctional resources. To meet

these goals, sentencing reforms have taken a variety of forms, and many

States have adopted a combination of sentencing schemes that can include

determinate or indeterminate sentencing, mandatory minimum

sentences for certain offenses, presumptive sentencing guidelines, and voluntary or advisory sentencing guidelines. The result is a patchwork

of structured sentencing models.

This monograph presents the findings of the first national assessment

of sentencing reforms, which was funded by the Bureau of Justice

Assistance and conducted by the National Council on Crime and Delinquency, the Pennsylvania Commission on Crime and Delinquency, and the

Pennsylvania Commission on Sentencing. The publication offers lessons

learned in the diverse efforts to structure sentencing over the past two decades. These lessons are offered in the context of a historical perspective

of sentencing practices used in the United States, with a discussion of the

issues that led to the structured sentencing movement. They are based on a

national survey of existing sentencing practices in the

50 States and the District of Columbia.
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Bureau of Justice Assistance

The Federal Government and 16 States have implemented presumptive

or voluntary/advisory sentencing guidelines. Each of these States has established guidelines for different purposes, and most of them were asked to meet

multiple goals, including punishment, deterrence, incapacitation, and rehabilitation. These purposes and goals influence nearly every aspect of

the guideline development process.

While sentencing guideline systems should be evaluated against their

established goals, several factors affect their successful implementation: the political environment, legislative mandates, adequate funding, and the development of coherent sentencing policy. However, despite the lengthy and

complex process of writing guidelines and the challenges of implementation,

the existing sentencing commissions and their guidelines have succeeded

in changing historic sentencing patterns. Structured sentencing also can

deter potential offenders, incapacitate dangerous offenders, and ensure that

offenders who are not dangerous receive fair and appropriate punishment.

As prison populations continue to grow, interest in structured sentencing

reforms also will increase. It is our hope that this assessment of structured

sentencing reforms will be a valuable resource to those States considering the formation of sentencing commissions and the development of

sentencing guidelines.
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Monograph

The Bureau of Justice Assistance wishes to thank James Austin, Ph.D.; Charles

Jones, J.D.; John Kramer, Ph.D.; and Phil Renninger of the National Council on

Crime and Delinquency for their efforts in conducting this evaluation and compiling this report.

In addition, BJA acknowledges the Advisory Board members: the Honorable

Helen Corrothers, formerly of the U.S. Sentencing Commission; Donna

Hunzeker of the National Conference of State Legislatures; Phyllis Newton

of the U.S. Sentencing Commission; Judge Thomas W. Ross of the North Carolina Sentencing and Policy Advisory Commission; and Sandra Shane-DuBow of

the Wisconsin Sentencing Commission.

Acknowledgments
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Bureau of Justice Assistance
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Executive Summary ................................................................................................... xi

Chapter 1. Introduction ........................................................................................... 1

Structured Sentencing Definitions.................................................. 2

Focus of This Report ........................................................................... 3

Chapter 2. Historical Trends and Issues

in Structured Sentencing ................................................................. 5

Historical Developments Leading

to Structured Sentencing................................................................... 5

The History and Nature of Structured

Sentencing Reforms .......................................................................... 1 0

Chapter 3. An Overview of Current Sentencing Practices

in the United States .......................................................................... 19

Mandatory Minimum Incarceration Sentences

in the United States ........................................................................... 2 1

Currency of State Criminal Codes ................................................. 2 3

Use of Parole and Good Time ........................................................ 2 6

Sentencing Commissions in the United States .......................... 2 8

Chapter 4. Sentencing Commission Structures

and Their Mandates ......................................................................... 31

Purposes of Reform........................................................................... 3 1

Sentencing Commission Structure, Mandates,

and Organization ................................................................................ 3 5

Political and Legal Context ............................................................. 5 4

Summary............................................................................................... 5 7

Chapter 5. Writing Sentencing Guidelines ................................................. 59

Offense Seriousness .......................................................................... 6 0

Criminal History ................................................................................. 6 7

Other Factors ...................................................................................... 7 1

Developing Sentencing Recommendations ............................... 7 2

Summary............................................................................................... 8 0

Table of Contents
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Bureau of Justice Assistance

Chapter 6. The Impact of Sentencing Guidelines ................................... 81

Methodological Issues in Assessing Impact ............................... 8 1

Impact on Sentencing Disparity .................................................... 8 2

Impact on Plea Bargaining .............................................................. 9 8

Impact on Incarceration Rates..................................................... 1 0 0

Impact on Prison Crowding ......................................................... 1 0 2

Projected Prison Populations for Guidelines States ............... 1 0 8

Impact on Public Safety and Crime Rates................................. 1 1 3

Summary............................................................................................. 1 1 9

Chapter 7. Summary .......................................................................................... 1 2 3

Major Findings .................................................................................. 1 2 3

Policy Implications .......................................................................... 1 2 5

Recommendations ........................................................................... 1 2 6

Sources for Further Information

Bibliography ............................................................................................................... 131

Appendix A: Information on States Used for Impact Analysis .......137

List of Tables

2–1: Illinois Determinate Sentencing Categories and

Sentencing Ranges............................................................................. 1 5

2–2: Felony Categories and Range of Penalties in California ......... 1 6

3–1: Sentencing Practices in the United States, as of

February 1994 ..................................................................................... 2 0

3–2: Classification of the States by Type of Sentencing

Practice, as of February 1994 ......................................................... 2 3

3–3: Offenses for Which States Provide Mandatory Minimum

Incarceration Sentences, as of February 1994 .......................... 2 4

3–4: Summary of Key Sentencing Law Attributes in the

United States, as of February 1994 ............................................... 2 6

3–5: Sentencing Guideline States in the Nation, as

of February 1994 ................................................................................ 2 8

4–1: Sentencing Guideline Commission Membership ..................... 3 6

4–2: Purposes of Sentencing, From Enabling Legislation

of Selected States ............................................................................... 3 9

4–3: Legislative Direction Regarding Consideration of

Prison Capacity................................................................................... 4 4

4–4: Examples of Modes of Sentencing Guidelines

Adoption ............................................................................................... 4 7

4–5: Appellate Review and Standards for Overturn of

Sentence for Selected States ........................................................... 5 1

................................................................. 1 2 9
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5–1: Overview of Guideline Sentencing Structures .......................... 6 1

5–2: Classification Criteria Used by North Carolina in the

Ranking of Offense Seriousness..................................................... 6 3

5–3: Minnesota Sentencing Guidelines Grid: Presumptive

Sentence Lengths in Months .......................................................... 6 4

5–4: Oregon Sentencing Guideline Grid .............................................. 6 9

5–5: Louisiana Intermediate Sanction Exchange ............................... 7 4

6–1: Minnesota Sentencing Patterns...................................................... 9 0

6–2: State of Washington Average Sentence Length,

by Ethnic Group (Nondeparture Sentences Only)................... 9 4

6–3: State of Washington Departure Rates (%), by Ethnic

Group: All Convictions..................................................................... 9 4

6–4: State of Washington Departure Rates (%), by Gender:

All Convictions ................................................................................... 9 4

6–5: State of Oregon Imprisonment Rate and Presumptive

Prison Rate, by Race and Gender: 1992 ...................................... 9 6

6–6: Departure Rates (%): American Guidelines Systems

(Recent Years) .................................................................................... 9 9

6–7: States At or Below Rated Capacity: 1992 .................................. 1 0 8

List of Figures

3–1: Types of Sentencing Practices in the United States, 1994 ..... 2 2

3–2: Status of Sentencing Guideline Commissions in the

United States, 1994 ............................................................................ 2 9

6–1: Unwarranted Disparity for the No Prison/Prison

Outcome............................................................................................... 9 1

6–2: Unwarranted Disparity for the Prison Length Outcome ........ 9 1

6–3: Annual Changes in Incarceration Rates: Pennsylvania/

Minnesota/Florida/Washington/National.................................. 1 0 1

6–4: Annual Changes in Incarceration Rates: Washington

and Comparison States ................................................................... 1 0 3

6–5: Annual Changes in Incarceration Rates: Minnesota

and Comparison States ................................................................... 1 0 3

6–6: Prison Population as a Percentage of Prison Capacity,

1983–1992: Pennsylvania/Minnesota/Florida/

Washington........................................................................................ 1 0 5

6–7: Prison Population as a Percentage of Prison Capacity,

1983–1992 .........................................................................................1 0 7

6–8: Bureau of Prisons Projected Prison Populations

and Capacities................................................................................... 1 0 9
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Bureau of Justice Assistance

6–9: State of Florida Projected Prison Population

Versus Capacity ................................................................................ 1 0 9

6–10: State of Minnesota Projected Prison Population

Versus Capacity ................................................................................ 1 1 0

6–11: State of Oregon Projected Prison Population

Versus Capacity ................................................................................ 1 1 0

6–12: State of Pennsylvania Projected Prison Population

Versus Capacity ................................................................................ 1 1 1

6–13: State of Tennessee Projected Prison Population

Versus Capacity ................................................................................ 1 1 1

6–14: State of Washington Projected Prison Population

Versus Capacity ................................................................................ 1 1 2

6–15: Total Projected Prison Population Versus Capacity

of Selected Sites................................................................................ 1 1 4

6–16: North Carolina Projected Prison Population ........................... 1 1 4

6–17: Annual Changes in Total Crime Rates: Pennsylvania/

Minnesota/Florida/Washington/National, 1970–1992 .......... 1 1 7

6–18: Annual Changes in Total Crime Rates: Guideline

Versus Comparison States ............................................................. 1 1 7

6–19: Annual Changes in Total Crime Rates: Florida

Versus Comparison States ............................................................. 1 1 8

6–20: Annual Changes in Violent Crime Rates ................................... 1 1 8
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C

Executive Summary

riminal justice sentencing has undergone considerable reform during

the past two decades. Because of excessive sentencing disparity and

criticisms of the rehabilitative ideal, many States have replaced indeterminate

sentencing with structured sentencing schemes such as determinate sentencing, mandatory minimum penalties, and sentencing guidelines. Nevertheless,

most States retain indeterminate sentencing structures while indicating interest

in adopting such reforms.

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

goals of structured sentencing. The following lists the most frequently cited

goals:

■ Increase sentencing fairness.

■ Reduce unwarranted disparity, either in the decision to imprison

(dispositional disparity) and/or sentence length (durational disparity).

■ Establish truth in sentencing.

■ Establish a balance of sentencing policy with limited correctional

resources.

Structured sentencing reforms can be used to deter potential offenders and

incapacitate dangerous offenders. Sentencing reforms can also be used to

reduce the likelihood and length of imprisonment for the so-called nondangerous offender.

This study is a review of lessons learned over the past two decades in the

diverse attempts to structure sentencing. It was funded by the Bureau of

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

Crime and Delinquency (NCCD), the Pennsylvania Commission on Crime

and Delinquency (PCCD), and the Pennsylvania Commission on Sentencing

(PCS).

Structured Sentencing Definitions

This examination of structured sentencing revealed at the outset that consensus is lacking regarding the meaning of sentencing guidelines, voluntary

sentencing guidelines, presumptive guidelines, and advisory guidelines.

...many States have

replaced indeterminate

sentencing with

structured sentencing

schemes.
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Bureau of Justice Assistance

Therefore, the first task in preparing this report was to establish the following

definitions:

■ Determinate: Sentences of incarceration in which an offender is given

a fixed term that may be reduced by good time or earned time.

■ Indeterminate: Sentences in which an administrative agency, generally

a parole board, has the authority to release an offender and determine

whether an offender’s parole will be revoked for violations of the

conditions of release.

■ Mandatory minimum: A minimum sentence that is specified by statute

and that may be applied for all convictions of a particular crime or a

crime with special circumstances (e.g., robbery with a firearm or selling

drugs to a minor within 1,000 feet of a school).

■ Presumptive sentencing guidelines: Sentencing that meets the following conditions: (1) the appropriate sentence for an offender in a specific

case is presumed to fall within a range of sentences authorized by sentencing guidelines that are adopted by a legislatively created sentencing

body, usually a sentencing commission; (2) sentencing judges are expected to sentence within the range or provide written justification for

departure; (3) the guidelines provide for some review, usually appellate,

of the departure. Presumptive guidelines may employ determinate or

indeterminate sentencing structures.

■ Voluntary/advisory sentencing guidelines: Recommended sentencing

policies that are not required by law. Usually based on past sentencing

practices, they serve as a guide to judges. The legislature has not mandated their use. Voluntary/advisory guidelines may employ determinate

or indeterminate sentencing structures.

Major Findings

One major objective of this study was to conduct a national survey of

sentencing practices to classify each State’s primary sentencing systems.

The results of this survey are summarized below.

Current Sentencing Practices

■ An unprecedented number of structured sentencing reforms have taken

place over the past two decades. To date, 16 States and the Federal

Government have implemented, or are about to implement, presumptive

or voluntary/advisory sentencing guidelines. Another five States have

adopted determinate sentencing systems.

■ All States employ some version of mandatory minimum sentencing laws,

which target habitual offenders and the crimes of possessing a deadly

weapon, driving under the influence of alcohol, and possessing and

distributing drugs.

An unprecedented

number of structured

sentencing reforms

have taken place over

the past two decades.
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■ Most States continue to allow inmates to earn good-time credits either

to reduce a sentence or to advance a parole eligibility date.

■ Most States, including those that have adopted determinate and sentencing

guideline models, have retained some form of discretionary release and

postrelease supervision.

■ Most States do not employ sentencing guidelines. Furthermore, five States

have tried and failed to adopt 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 the 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 (i.e., number

of new prison beds).

Structure of Sentencing Guidelines and Sentencing

Commissions

■ The structure of sentencing guidelines varies dramatically for both

assessing sentencing disposition criteria and determining sentence

length.

■ The most common format for guidelines is the two-variable matrix,

which relies on offense severity and prior criminal history.

■ Sentencing commission membership varies considerably in number and

type of members selected.

■ In general, membership includes judges, prosecutors, defense attorneys,

and private citizens. Corrections officials, legislators, and law enforcement

officials are often included on these commissions.

Implementation Issues

■ The process for implementing guidelines is neither quick nor inexpensive.

Implementation often requires 2 years.

■ The annual budgets for guideline commissions and support staff range

from $250,000 to $500,000. Considerable support is required to monitor

and analyze compliance with guidelines and to project the impact of

modifying guidelines.

■ Before guideline implementation, detailed data on current sentencing

patterns should be collected and analyzed. A jurisdiction will also need

The most common

format for guidelines

. . . relies on offense

severity and prior

criminal history.
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Bureau of Justice Assistance

to develop a simulation model for estimating the impact of the proposed

guidelines on prison, parole, probation, and jail populations.

Impact of Sentencing Guidelines

■ States that have implemented presumptive guidelines have reported high

compliance rates and have changed historical sentencing trends.

■ Repeat offenders and offenders convicted of violent crimes are much more

likely to be imprisoned and serve longer prison terms under sentencing

guidelines. Conversely, first-time offenders charged with property crimes

are less likely to be imprisoned and generally serve shorter prison terms.

■ Partly because of guidelines, persons convicted of drug crimes (possession

and sale) are now much more likely to be imprisoned and serve lengthy

prison terms. This trend has directly increased the rate of imprisonment

for African-American and Hispanic-Latino/Latina offenders.

■ Guidelines have helped reduce sentencing disparity; however, disparity

reductions have eroded somewhat over time.

■ There is limited evidence that guideline sentencing structures designed

to account for correctional resources have had slower rates of growth in

incarceration and helped to control prison crowding. However, prison

crowding remains a problem for most States.

■ Guideline States, like nonguideline States, are likely to suffer from

overcrowding over the next decade unless they embark on a substantial

prison construction program or reduce prison terms for violent and drug

offenders.

Policy Implications

Reducing Disparity While Maintaining Discretion

The decisions that a jurisdiction must make about its criminal justice laws will

have a major impact on the quality of justice and cost to its citizens. If laws

or commissions do not make these decisions, then they are left to individual

judges who must (1) determine what they perceive as just sentences and

(2) determine the best use of State and local correctional resources. The major

question remains: Can the development of structured sentencing, and presumptive sentencing guidelines in particular, overcome well-established

organizational values that may facilitate and protect inequitable sentencing

practices?

One continuing concern is the ability to individualize sentencing and consider

a wide range of sentencing purposes while maintaining an equitable sentencing system. Most States have attempted to control the individualization of

judicial practices while maintaining that sentences should consider the full

range of traditional sentencing purposes. For example, Pennsylvania requires

Guidelines have helped

reduce sentencing

disparity; however,

disparity reductions

have eroded somewhat

over time.
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Monograph

judges to consider offenders’ rehabilitative potential and community protection as well as the guidelines. In Washington, the enabling legislation mandates that sentencing guidelines incorporate the goals of retribution, incapacitation, rehabilitation, and frugal use of correctional resources. Both of

these States may be the most explicit examples of the effort to structure

sentencing while maintaining adequate court discretion to fashion sentences

to individual offenders.

Recent innovations in Oregon and Louisiana have expanded the range of

sentencing options and provided for the reduction of disparity. This new

approach illustrates that sentences can be very different yet equal; this approach is an important move forward in the evolution of sentencing guidelines. Future commissions may develop guidelines that will increase fairness,

equity, and proportionality while still providing for a full range of sentencing

options.

Displacement of Discretion

One of the key issues facing those attempting to control sentencing discretion

is displacement of discretion from the courts to the prosecutors. The concern

is that guidelines have merely shifted discretion from parole boards, prison

officials, and judges to prosecutors. Little evidence exists to document how

much this has occurred. Clearly, more research is needed in this area of

sentencing reform.

Prison Crowding

To date, structured sentencing reforms have not had any appreciable effect

on the problem of prison crowding. Until the legislative process and sentencing commissions can tune out pressures to get tough on crime, there is little

reason to believe that structured sentencing models will solve the prisoncrowding problem.

Furthermore, as State prisons remain crowded, they will continue to employ

discretionary early release programs. Depending on how such programs are

structured, attempts to reduce disparity may be lost in the determination of

how much time similarly situated offenders will serve.

Recommendations1

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.

1. The recommendations in this section are those of the Advisory Board.

. . . structured

sentencing reforms

have not had any

appreciable effect on

the problem of prison

crowding.
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Bureau of Justice Assistance

The most promising model is sentencing guidelines developed by sentencing

commissions. Such systems have enhanced the State’s ability to set sentencing

goals and, in some instances, limits on what a State is willing to invest in

prisons. In view of both the strong trend toward sentencing commissions and

the continued growth of prison populations, it is likely interest in sentencing

guidelines developed by commissions will continue.

However, it should be noted that this report also provides examples of

guidelines failing to improve the quality of justice. Guidelines work depending on how they are designed and implemented (and for what purposes).

Guidelines should not be expected to solve all the problems surrounding

the dispensing of justice and reducing crime.

What follows are the Advisory Board’s recommendations that States might

consider in developing structured sentencing policies.

■ Commission representation participation. Broad participation in the

guideline development process cultivates commitment to the final

guidelines and improves their quality.

■ Resources. Adequate financial support is necessary for a commission to

study a State’s past sentencing practices; study what other States have

accomplished; prepare reports and proposals; meet regularly and hire

consultants when necessary; provide ongoing feedback to the court and

other governmental agencies; and monitor and evaluate the impact of

the sentencing guidelines.

■ Ongoing monitoring and support. Commissions that have successfully

implemented guidelines have received increases in their budgets and

staffs in the postimplementation years, probably because of continually

increasing responsibilities imposed on the commissions by the legislature

and the cost of maintaining and evaluating guidelines.

■ Appellate review. Without an enforcement mechanism, guidelines are

merely voluntary/advisory and so may have little impact on sentencing

practices. The common procedure is to provide for an appellate review

initiated by either the defense or the prosecution.

■ Mandatory minimum sentences. The increased use of mandatory

minimum penalties is preventing the achievement of the dual goals of

reducing disparity and controlling population growth in institutions. States

should resist such provisions if they affect large proportions of its sentenced population.

■ Controlling the use of departures. To help reduce unwarranted disparity, States should specify as much as possible the type of departures from

guidelines that are acceptable. Moreover, sentencing commissions should

carefully monitor the frequency and direction of departures, at least

according to crime category, race, and gender.
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■ Role of the Federal Government. States adopting guidelines need

assistance. The Federal Government can play an important role by providing a modest amount of assistance in the following areas:

❑ Establishing and maintaining a national clearinghouse on structured

sentencing.

❑ Convening annual meetings for State sentencing commissions to share

information and research findings.

❑ Establishing a funding program to help States develop technologies

necessary to support the development or modification of existing

sentencing structures. Assistance is required, especially in the

following areas:

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

sentencing structures.

— Developing new methods or providing training to States in

existing analytic methods for measuring disparity.

— Designing information systems that can be used to monitor

compliance with sentencing criteria.

— Developing and improving criminal court and correctional

population simulation technology (jails, prisons, probation, and

parole).

— Developing and improving methods of designing and pilottesting sentencing guideline methods.

Finally, more research is needed to assess whether guidelines and other

forms of structured sentencing are reducing sentencing disparity. As indicated

above, a number of States have implemented, or are about to implement,

sentencing guidelines. Independent process evaluations and impact evaluations of these new structured sentencing reforms would be valuable to the

field.

A better understanding is also needed concerning the effect of reforms

external to the guidelines on sentencing disparity, especially along racial

lines. Topics to be addressed include the impact of mandatory minimum

provisions for certain drug crimes on disparity and the effect of guidelines

on shifting discretion from the courts to the front end of the system (arrest,

charging, and plea bargaining). Such studies will help clarify how best to

correct undesirable and unequal sentencing practices.
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Bureau of Justice Assistance
 1

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Introduction

Chapter 1

The past two decades have brought considerable reforms in criminal

justice sentencing. Criticisms of excessive disparity and of the rehabilitative ideal have prompted many States to replace indeterminate sentencing

with structured sentencing schemes such as determinate sentencing, mandatory minimum penalties, and sentencing guidelines. Nevertheless, most States

retain indeterminate sentencing structures while indicating interest in adopting these reforms.

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

the basic definitions of structured sentencing and its goals. Indeed, States

that have adopted various forms of structured sentencing have done so with

multiple goals and expectations. The most frequently cited goals are the

following: increasing sentencing fairness; reducing unwarranted disparity,

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

length (durational disparity); establishing truth in sentencing; and establishing

a balance of sentencing policy with limited correctional resources.

Structured sentencing reforms can be used to increase the certainty of punishment and mandate the period of imprisonment so that potential offenders

are deterred and dangerous offenders are incapacitated. At the same time,

sentencing reforms can be used to reduce the likelihood and length of imprisonment for the so-called nondangerous offender. Some State officials

hope that these reforms can help them avoid a severe prison-crowding situation by regulating prison population growth according to available correctional resources. However, these purposes are not universally accepted, and

the means used to implement them vary considerably among jurisdictions.

This study, which was funded by the Bureau of Justice Assistance (BJA)

and jointly conducted by the National Council on Crime and Delinquency

(NCCD), the Pennsylvania Commission on Crime and Delinquency (PCCD),

and the Pennsylvania Commission on Sentencing (PCS), is a review of lessons

learned over the past two decades in the diverse attempts to structure

sentencing.

The criminal justice

community has yet to

develop a clear

consensus on the

basic definitions of

structured sentencing

and its goals.
2

Bureau of Justice Assistance

Structured Sentencing Definitions

This examination of the various forms of structured sentencing revealed at

the outset the lack of consensus regarding the meaning of basic, commonly

used terms such as determinate sentencing, sentencing guidelines, voluntary

sentencing guidelines, presumptive guidelines, and advisory guidelines.

Therefore, the first task in preparing this report was to develop a series of

definitions of terms used throughout the document in the hope of bringing

some consistency to the field as well as helping the reader follow this discussion. The following definitions apply throughout the report:

■ Determinate: Sentences of incarceration in which an offender is given a

fixed term that may be reduced by good time or earned time. There are

usually explicit standards specifying the amount of punishment and a set

release date with no review by an administrative agency (parole board).

Postincarceration supervision (parole) may be a part of the sentence.

■ Indeterminate: Sentences in which an administrative agency, generally

a parole board, has the authority to release an offender and determine

whether an offender’s parole will be revoked for violations of the conditions of release. In one form of indeterminate sentencing, the judge

specifies only the maximum sentence length; the associated minimum

duration is automatically implied but is not within the judge’s discretion.

In the more traditional form of indeterminate sentencing, the judge

specifies a maximum and minimum duration that is set by statute.

The sentencing judge has discretion on the minimum and maximum

sentence.

■ Mandatory minimum: A minimum sentence that is specified by statute

and that may be applied for all convictions of a particular crime or a

particular crime with special circumstances (e.g., robbery with a firearm or

selling drugs to a minor within 1,000 feet of a school).

■ Presumptive sentencing guidelines: Sentencing that meets the following conditions: (1) the appropriate sentence for an offender in a specific

case is presumed to fall within a range of sentences authorized by sentencing guidelines that are adopted by a legislatively created sentencing

body, usually a sentencing commission; (2) sentencing judges are expected to sentence within the range or provide written justification for

departure; (3) the guidelines provide for some review, usually appellate,

of the departure. Presumptive guidelines may employ determinate or

indeterminate sentencing structures.

■ Voluntary/advisory sentencing guidelines: Recommended sentencing

policies that are not required by law. Usually based on past sentencing

practices, they serve as a guide to judges. The legislature has not mandated their use. Voluntary/advisory guidelines may employ determinate

or indeterminate sentencing structures.
 3

Monograph

Focus of This Report

In the course of completing the study, researchers visited a number of States

to collect various types of information regarding the structure of a State’s

sentencing system and to document the process of implementation. The

researchers also reviewed and synthesized major studies of current structured

sentencing systems that assess their impact on disparity, the use of incarceration, and prison crowding. The remainder of this publication provides a

broad overview of sentencing reforms and a detailed examination of sentencing guidelines.

Chapter 2 provides the reader with a summary of the historical trends in

sentencing reforms since 1970. The chapter begins with a discussion of those

factors or issues underpinning the structured sentencing movement, such

as the disillusionment with indeterminate sentencing and rehabilitation. The

chapter then reviews three major forms of sentencing reforms (voluntary/

advisory guidelines, determinate sentencing, and presumptive guidelines),

providing examples of States that have attempted each type of reform.

Chapter 3 describes the results of a national survey of the 50 States and

the District of Columbia. This survey represents the first major national

assessment of the various sentencing schemes that now exist throughout

the Nation. Included in the presentation is a detailed matrix that lists the

key sentencing law attributes for each State, including the use of parole

and mandatory sentencing provisions.

In Chapter 4, the focus shifts to sentencing guidelines and the use of sentencing commissions. The chapter describes the foundation on which a

sentencing commission and its guidelines are built: the political and legal

context, the State’s purposes or goals for reform, the specific legislative

structure of the commission, and the legislative mandates included in the

enabling legislation.

Chapter 5 describes the complex decisionmaking and technical aspects of

writing sentencing guidelines. The chapter also provides detailed information

about how various States have made decisions in writing sentencing guidelines.

Chapter 6 is an analysis of the relative effects of sentencing reforms on a

number of key areas, including sentencing disparity, incarceration rates,

prison crowding, and future prison population growth. The chapter summarizes the findings of studies on disparity, using an analysis of national criminal justice data to compare trends in incarceration, prison crowding, and

crime rates among some of the early guideline States and comparable

nonguideline States.

The last chapter summarizes the major findings of this study and its policy

implications. Specific recommendations are offered for further advancement

of sentencing reforms with help from the Federal Government, which can

provide additional technical assistance to the States in improving criminal

justice sentencing.
4

Bureau of Justice Assistance
 5

Monograph

Historical Trends and Issues

in Structured Sentencing

Chapter 2

Controlling discretion has presented a quandary for the criminal

justice system throughout this century and particularly during the

past 20 years. In his comprehensive review of discretion within the criminal

justice system, Samuel Walker makes the following statements:

 . . . [T]he criminal justice “system” is nothing more than the

sum total of a series of discretionary decisions by innumerable

officials... [the real problem] . . . is not discretion, but its misuse. 1

Police misuse of discretion received much attention during the 1960’s. During

the 1970’s, concern over discretion exercised by the courts, parole, and

corrections grew as crime rates increased. The past 20 years have produced

many accusations but few studies documenting the misuse of discretion by

judges, parole boards, and corrections officials, resulting in unwarranted

sentencing disparity. Such unwarranted disparity results in undue leniency,

excessive harshness, and uncertainty of sanctions. 2

The solution to the problem of unwarranted sentencing disparity has been to

structure sentencing discretion. However, a variety of mechanisms has been

used to structure discretion, resulting in a patchwork of structured sentencing

models that includes determinate sentencing, voluntary/advisory guidelines,

and presumptive guidelines. What follows is a historical overview of these

various reform efforts, which were intended to remove disparity in sentencing

as well as improve the credibility of the criminal justice system.

Historical Developments Leading to Structured

Sentencing

The Indeterminate Period

At the end of the 19th century, sentencing reform in the United States involved replacing the flat sentence with indeterminate sentences. The criminal

1. Walker, S. Taming the System: The Control of Discretion in Criminal Justice, 1950–1990.

Oxford: Oxford University Press. 1993, p. 4.

2. Sentencing involves the totality of the sentences imposed and the sentences served as

carried out by administrative agencies, parole boards, and prison officials.
6

Bureau of Justice Assistance

justice system was coping with a rapidly increasing number of individuals

imprisoned as a result of an expanding population of immigrants and transients, increased efficiency of the police and courts, the fixed sentence, and

other factors. Overcrowded prisons and the mere warehousing of inmates

resulted. 3

At first, piecemeal reforms such as the use of pardons, good time, and probation provided needed flexibility for grappling with an expanding and diversifying prison population. These reforms gradually led to an increase in indeterminate sentences given by 19th-century judges. The movement toward

indeterminate sentences was spurred by the Declaration of Principles of the

First Congress of the National Prison Association, which met in Cincinnati in

1870. The declaration urged that “preemptory sentences ought to be replaced

by those of indeterminate length. Sentences limited only by satisfactory proof

of reformation should be substituted for those measured by the mere lapse

of time.”4

Under indeterminate sentences, offenders received a minimum and maximum

sentence, and the parole board determined the time of actual release. Alan

Dershowitz later characterized this shift as one from a judicial to an administrative model of sentencing. 5

 The parole board’s determination of when the

sentence was served, in turn, depended on its judgment of whether the

prisoner had been reformed or cured or had simply served enough time.

With indeterminate sentencing, discretion was distributed not only among the

prosecutor, defense counsel, and judge but also, for those imprisoned, among

prison officials and the parole board. The latter two agencies had considerable influence over an offender’s length of stay. Prison officials had discretion

over the amount of good time an inmate could earn, which would dictate the

prisoner’s parole eligibility and/or discharge date. Parole boards controlled

the actual release decision for most inmates. The result was a system of

sentencing in which there was little understanding or predictability as to

who would be imprisoned and for how long.

Attacks on Indeterminacy

Under indeterminate sentencing, the sentence was individualized so that the

punishment fit the criminal rather than the crime. However, this approach

prompted numerous accusations of disparity in sentencing and, over time,

protests from inmate groups, penologists, and other critics of the penal

system.

3. Shane-DuBow, S.A., A.P. Brown, and E. Olsen. Sentencing Reform in the U.S.: History,

Content and Effect. Washington, DC: U.S. Department of Justice. 1985.

4. Note 3, p. 5.

5. Dershowitz, A. “Criminal Sentencing in the United States: A Historical and Conceptual

Overview.” Annals of the American Academy of Political and Social Science 423(1976),

pp. 117–132.

Under indeterminate

sentencing, the

sentence was

individualized so that

the punishment fit

the criminal rather

than the crime.
 7

Monograph

One of the most influential reports critical of indeterminate sentences was

the 1971 American Friends Service Committee’s work entitled Struggle for

Justice: A Report on Crime and Punishment in America , written by “scholars

working in the field of criminal justice” and “those who have been on the

receiving end of the justice system.” 6

 The report used anecdotal evidence,

results of prison riot studies, and personal testimony from inmates to critique

the function of punishment and reject the rehabilitation model. Specifically,

the report questioned the assumption that crime is a product of individual

pathology and that rehabilitation can be achieved within a prison system

designed to punish and not treat inmates. It also criticized the assumption

that penologists have the knowledge to impose treatment or to accurately

predict recidivism to justify discretion in determining when an inmate should

be released.

Drawing on Struggle for Justice: A Report on Crime and Punishment in

America were two other important works also critical of indeterminate sentencing: the report of the Twentieth Century Fund’s Task Force on Criminal

Sentencing entitled Fair and Certain Punishment (particularly the background paper by Alan Dershowitz) 7

 and the report of the Committee for the

Study of Incarceration, which was published as Andrew von Hirsch’s Doing

Justice: The Choice of Punishments .

8

 Both Dershowitz and von Hirsch argued

for a shift from indeterminate to more determinate sentencing and for what

has been termed the “presumptive sentence.” They asserted that these concepts, if implemented, would lead to greater predictability in determining

proper sentence disposition (prison versus probation) and length of imprisonment. However, there were important differences in the scope of

each author’s suggested reforms.

Dershowitz’s presumptive sentence would require legislatures to set specific

penalties for crimes on the basis of the comparative seriousness of the offense, with more serious crimes appropriately receiving a harsher presumptive sentence. The judge would be obliged to impose the statutorily set

penalty, which could be raised or lowered through the application of aggravating or mitigating factors by the court. Dershowitz’s proposals called

for the retention of parole, but with limitations.

While Dershowitz called for a shift in emphasis from administrative sentencing to a greater legislative and judicial role, von Hirsch argued for a more

radical departure by rejecting the value of general deterrence, rehabilitation,

and incapacitation as punishment justifications. He concluded that States

6. American Friends Service Committee. Struggle for Justice: A Report on Crime and

Punishment in America. New York: Wang. 1971.

7. Twentieth Century Fund Task Force on Criminal Sentencing. Fair and Certain Punishment.

New York: McGraw-Hill. 1976.

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

[Struggle for Justice]

questioned the

assumption that crime

is a product of individual pathology . . .
8

Bureau of Justice Assistance

should base their sentencing schemes on a “just deserts” or “commensurate

deserts” paradigm. Sentencing would be narrowly based on only the seriousness of the offense and the culpability of an offender rather than on an

offender’s need for “treatment” or on the naive hope that sentencing would

somehow affect crime rates.

Such a sentencing system would focus not on individualization of punishment

but on structuring the system of punishment. The approach would sharply

reduce judicial sentencing discretion by establishing punishment categories

within which penalties for comparable serious offenses could be grouped

on a scale. By using only two factors—offense severity and, to a limited

degree, prior criminal history—a presumptive sentence would be determined.

Judicial discretion would thus be limited to setting a presumptive term within

a specified sentencing range or justifying departures by applying allowable

aggravating or mitigating factors. Departures would be monitored and somewhat circumscribed by allowing judicial review of sentencing, a process that

was previously almost nonexistent. Von Hirsch initially insisted that discretionary release by parole boards be abolished.

Another influential voice in the early discussions of structured sentencing was

that of Judge Marvin Frankel in his book Criminal Sentences: Law Without

Order . In 1972, when Frankel’s book was published, no models for sentencing guidelines existed. Although he was a judge, Frankel made such a strong

case for controlling discretion that the concept of judicial discretion was

shattered. Moreover, Frankel foresaw the need to develop a regulatory approach, articulating the principle on which his proposal rested as follows:

We boast that ours is a “government of laws, not men.” We do not

mean by the quoted principle that men make no difference in the

administration of law. Among the basic things that we do mean is

that all of us, governors and governed alike, are or ought to be

bound by laws of general and equal application. We mean, too,

that in a just legal order, the laws should be knowable and intelligible so that, to the fullest extent possible, a person meaning to

obey the law may know his obligations and predict within decent

limits the legal consequences of his conduct. 9

The problem according to Frankel was that “... the sweeping power of a

single judge to determine the sentence, as a matter of largely unreviewable

‘discretion’ is a—perhaps ‘the’—central evil in the system.” 10 One part of the

solution was the development of appellate review of sentencing. At the time

of Frankel’s writing, there was “in practical effect no appeal from the trial

judge’s sentence.” 11

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

10. Ibid., p. 69.

11. Ibid., p. 76.

. . . a [just deserts]

sentencing system

would focus not on

individualization of

punishment but on

structuring the system

of punishment.
 9

Monograph

Like the other authors previously cited, Frankel attacked the indeterminate

sentence, primarily on the grounds of cruelty and injustice. However, he

suggested that indeterminate sentences may be appropriate for dangerous

offenders, drug users, some sex offenders, and juvenile offenders.

Frankel recommended that the legislature provide direction as to the purposes and justifications of criminal sanctions. He proposed the establishment

of a Commission on Sentencing, which would be a permanent agency formed

to study sentencing, corrections, and parole; formulate rules and laws based

on its studies; and enact rules subject to checks by Congress, State legislatures, and the courts.

However, Frankel did not expect the proposed sentencing commission to

escalate the use of imprisonment, which he regarded as already too severe.

He hoped that a sentencing commission could act as a buffer, shielding the

legislature from political pressures to respond to ever increasing demands

for more punitive sanctions and to help control prison population growth.

Early Guideline Developments

During the same period, researchers who were developing parole release

guidelines for the U.S. Board of Parole began to experiment with applying

this methodology to sentencing decisions. 12 In the 1960’s, parole guidelines

had been developed by using a two-dimensional matrix relating the seriousness of the instant offense and the probability of recidivism (or the salient

factor score) to an expected time served before release on parole. A small

range was provided, within which parole hearing examiners had to set the

length of incarceration. Departures were permitted, but written reasons for

such departures were required. Because the judiciary supported and strongly

commended parole guidelines, the concept of guidelines was believed to

have value and to be adaptable to sentencing.

A model for parole guidelines was applied experimentally to sentencing

for the first time between 1974 and 1976 in four jurisdictions. Two sites

(Denver and the State of Vermont) were active participants, and two sites

(Essex County, New Jersey, and Polk County, Iowa) were observers. This

feasibility study was described as an action research project in which researchers studied existing sentencing processes. The judiciary was involved

in all phases of the project, from the gathering of all information relevant

to sentencing discretion, to the analysis of factors that accounted for the

greatest variation in the judges’ sentencing decisions. The researchers did not

attempt to develop prescriptive notions of what would be a “right” sentence.

Instead, they were trying to understand what underlying factors influenced

the sentencing decision.

12. Wilkins, L.T., J.M. Kress, D.M. Gottfredson, J.C. Calpin, and A.M. Gelman. Sentencing

Guidelines: Structuring Judicial Discretion—Report on Feasibility Study. Washington, DC:

U.S. Department of Justice. 1978.

. . . indeterminate

sentences may be

appropriate for

dangerous offenders,

drug users, some

sex offenders, and

juvenile offenders.
10

Bureau of Justice Assistance

The analysis indicated that although there was considerable disparity among

judges’ sentencing decisions, two factors explained the largest variations:

seriousness of the current offense and the extent of the offender’s prior

record. More importantly, judges who participated in the research expressed

support for the concept of guidelines to better help them reach sentencing

decisions.

The History and Nature of Structured Sentencing

Reforms

Since the late 1970’s, nearly all State sentencing practices have fallen into four

broad categories: (1) voluntary/advisory sentencing guidelines, (2) determinate sentencing, (3) presumptive sentencing guidelines, and (4) traditional

indeterminate sentencing. Along with mandatory sentencing, the first three

models represent the most common forms of structured sentencing, although

there are many variations of each.

The remainder of this chapter presents a historical overview of structured sentencing efforts to date. The overview identifies the significant issues in sentencing reform that are addressed by this project and describes the key attributes of

structured sentencing systems that some jurisdictions have considered or incorporated in developing their own structured sentencing systems. These examples

show that structured sentencing is not a single or unified concept. Instead, it

embodies a variety of approaches to identifying the particular goals of sentencing in a specific jurisdiction and to achieving those goals by structuring the

discretion of sentencers (judges, parole boards, prosecutors, and prison officials)

at various points in the criminal justice system.

Voluntary/Advisory Sentencing Guidelines

Among the earliest sentencing innovations in the United States was the

experiment with voluntary/advisory guidelines, called “voluntary” because

judges were not required to comply with them. They emerged in part to

counter determinate sentencing reforms as adopted in California, Illinois,

and Indiana in 1977.

The earliest voluntary/advisory guidelines projects originated as a result of a

multiyear project beginning in 1974 and funded by the National Institute of

Justice. The purpose of the project was to study the feasibility of empirically

based guidelines for sentencing. 13 The project provided support to researchers

who had been instrumental in developing parole guidelines so that the

guidelines could be field tested in Denver; Newark, New Jersey; Chicago;

Phoenix; and Philadelphia between 1975 and 1980.

13. Tonry, M. “Structured Sentencing.” In Crime and Justice: A Review of the Research, vol. 10,

ed. M. Tonry and N. Morris. Chicago: University of Chicago Press. 1988. See also Note 12

and Kress, M. Prescription for Justice: The Theory and Practice of Sentencing Guidelines.

Cambridge: Ballinger. 1980.

Structured sentencing

embodies many

approaches that

address each

jurisdiction’s goals in

sentencing and the

means of achieving

those goals by

structuring the

discretion of the

sentencers.
 11

Monograph

In addition, experiments with voluntary/advisory guidelines in Florida and

Maryland later became institutionalized. In Florida, statewide voluntary/

advisory guidelines were revised by a sentencing commission and converted

into presumptive guidelines in 1983. In the same year, Maryland formally

adopted statewide voluntary/advisory guidelines. The States of Massachusetts,

Michigan, Rhode Island, Utah, and Wisconsin also experimented with voluntary/advisory guideline systems at varying levels. 14

Several evaluations of these early efforts yielded discouraging results. 15 Sparks

et al. found that the early Massachusetts guidelines were poorly conceived,

poorly developed, and not effectively implemented. 16

In its comprehensive assessment of the development and impact of voluntary/advisory guidelines, the National Center for State Courts found difficulties

in their implementation in Denver, Chicago, Newark, and Phoenix. 17 Specifically, the researchers found major methodological and analytical defects in

the development of the Denver guidelines. Furthermore, the Denver guidelines were found to have exerted little influence on judicial decisions on

whether to incarcerate, and compliance rates for lengths of prison terms

were disappointingly low. The researchers drew the following conclusions:

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

discretion. 18

14. Ibid. See also Note 3.

15. Cohen, J., and J. Helland. “Methodology for Evaluating the Impact of Sentencing

Guidelines.” Unpublished paper. Pittsburgh: Urban Systems Institute, School of Urban

and Public Affairs, Carnegie-Mellon University. 1982. See also Carrow, D.M., J. Feins,

B.N.W. Lee, and L. Olinger. Guidelines Without Force: An Evaluation of the Multijurisdictional Sentencing Guidelines Field Test. Cambridge: Abt. 1985. See also Sparks,

R.F., B.A. Stecher, J. Albanese, and P.L. Shelly. Stumbling Toward Justice: Some Overlooked

Research and Policy Questions About Statewide Sentencing Guidelines. Report

to the National Institute of Justice, U.S. Department of Justice. Washington, DC: U.S.

Government Printing Office. 1982. See also Rich, W.D., L.P. Sutton, T.R. Clear, and

M.J. Saks. Sentencing by Mathematics: An Evaluation of the Early Attempts to Develop

Sentencing Guidelines. Williamsburg, VA: National Center for State Courts. 1982.

16. Sparks, R.F., B.A. Stecher, J. Albanese, and P.L. Shelly. Stumbling Toward Justice: Some

Overlooked Research and Policy Questions About Statewide Sentencing Guidelines.

Report to the National Institute of Justice, U.S. Department of Justice. Washington, DC:

U.S. Government Printing Office. 1982.

17. Rich, W.D., L.P. Sutton, T.R. Clear, and M.J. Saks. Sentencing by Mathematics: An

Evaluation of the Early Attempts to Develop Sentencing Guidelines. Williamsburg, VA:

National Center for State Courts. 1982.

18. Ibid., p. xxiv.
12

Bureau of Justice Assistance

These disappointing results were often linked to implementation difficulties

and the lack of enforcement. In some instances, insufficient time was allowed

for the guidelines to take hold. More important, the guidelines were voluntary; judges could simply ignore them. Nonetheless, they were an important

step in the sentencing reform process because they helped change sentencing

patterns from indeterminate to determinate. By 1994 six States (Arkansas,

Louisiana, Maryland, Michigan, Virginia, and Wisconsin) had adopted voluntary/advisory guidelines. Several of these States were the early experimenters

with voluntary/advisory guidelines. However, a review of all the major studies

conducted on voluntary/advisory guidelines reveals low compliance by

judges and, hence, little impact on reducing disparity. 19

Although all voluntary/advisory guideline systems are not alike, an example

of voluntary/advisory guidelines can be found in Virginia. The Virginia guidelines were not legally mandated as presumptive sentencing guidelines are.

Likewise, there was no enabling legislation that set up a sentencing commission to develop the guidelines. Rather, they were based on historical sentencing practices (descriptive versus prescriptive). The process of guidelines

development in Virginia exemplifies descriptive guideline development.

In 1982, then Governor Charles Robb appointed a task force to examine

statewide sentencing practices and to recommend any necessary changes.

Between 1983 and 1988, the task force, or Judicial Sentencing Guidelines

Committee (JSGC), which is accountable to the Judicial Conference of

Virginia (JCV), developed a set of voluntary/advisory guidelines. The

guidelines were descriptive: that is, they were developed through statistical

analyses of past sentencing practices and then tested in six pilot districts for

1 year, 1988–1989. The JSGC determined the guidelines to be effective and

favorably received by judges in the six pilot districts and, thus, voted to

expand their use throughout the State.

In 1990, the State legislature commended the JCV for its work and urged

adoption of the guidelines. A permanent JSGC (composed of seven circuit

court judges) was formed in 1990. The committee decided to base the statewide guidelines on sentencing practices between 1985 and 1989, agreeing

that the guidelines should be revised at 1-year intervals in accord with

analyses of the previous year’s sentencing practices.

The primary purpose of the guidelines was the establishment of rational and

consistent sentencing standards that reduce unwarranted sentencing disparity.

However, Virginia’s guidelines were not intended to affect prison populations,

change the severity of sentences, change the philosophy of sentencing, or

19. Cohen, J., and M.H. Tonry. “Sentencing Reforms and Their Impacts.” In Research

on Sentencing: The Search for Reform, ed. A. Blumstein, J. Cohen, S.E. Martin, and

M.H. Tonry, pp. 305–459. Washington, DC: National Academy Press. 1983.

. . . a review of all

major studies on

voluntary/advisory

guidelines reveals low

compliance by judges

and, hence, little

impact on reducing

disparity.
 13

Monograph

restrict judicial discretion. Instead, they were intended to provide a historical

picture, descriptive of past sentencing practices for a variety of offenses, to

assist judges in decisionmaking.

Virginia’s guidelines do not rank offenses according to a severity scale and

do not base recommendations on a matrix of offense severity and criminal

history scores. The guidelines consist of separate scoring schemes, factors

to be considered, and sentence recommendations for eight categories of

offenses: homicide, assault, robbery, sexual assault, burglary, larceny,

drugs, and fraud. The guidelines are bifurcated in structure to reflect two

sets of decisions: (1) whether to imprison an individual and for how long

and (2) whether those not imprisoned should go to a local jail for a certain

period of time or receive probation.

In developing the guidelines, the Virginia committee did not consider any

factors influencing sentences that were deemed inappropriate (e.g., race,

gender, or age). Therefore, Virginia’s model is not purely descriptive because

it specifically eliminates from the guidelines certain factors that historically

influenced sentencing in Virginia.

The Virginia court has significant power to decide who should be incarcerated because that option is always available. In all categories of the Virginia

matrices, the court is given a range of sentences based on the past 5 years of

sentencing practices. The guideline ranges are updated every year to reflect

the most recent sentencing patterns by discarding the oldest data and replacing them with current data.

Because Virginia’s guidelines were implemented as recently as 1991, there

has been no major research on the degree to which they have reduced

disparity or how they are used in court decisionmaking. However, the 1989

report on the test guidelines in the six pilot districts indicated that the guidelines foster greater uniformity and less unwarranted disparity and that judges

comply with guideline recommendations at a rate of 78 percent. It should be

noted that acceptance of the overall policy was not the same as compliance

with a guideline recommendation. Because departures (i.e., exceptions)

may be permitted or encouraged by the general policy, a 78-percent rate of

compliance with the suggested decision outcome may indicate a 100-percent

acceptance of policy.

Virginia’s new Governor, George Allen, established a commission in 1994

to study the abolition of parole and the development of a presumptive

sentencing system. The State legislature established a committee to make

recommendations on the appropriate role of parole and presumptive sentencing guidelines. In addition, legislation that radically alters the voluntary

guideline structure has been adopted. Parole was abolished and the existing

sentencing policy modified to greatly lengthen the period of imprisonment.

Virginia’s recent reforms highlight the volatile nature of sentencing policy.
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Bureau of Justice Assistance

Determinate Sentencing

The term “determinate sentencing” is generally used to refer to the sentencing

reforms of the late 1970’s. In those reforms, the legislatures of California,

Illinois, Indiana, and Maine abolished the parole release decision and replaced the indeterminate penalty structure with a fixed (flat) sentence that

could be reduced by a significant good-time provision. The only State that has

adopted a true determinate sentencing system since 1980 is Arizona, which

enacted a “truth in sentencing law” on January 1, 1994. These five States have

retained their determinate sentencing models, although no other States have

adopted such a structured sentencing scheme.

Determinate sentencing was spurred initially by two opposing political forces.

Some people attacked the disparities of unfettered judicial discretion that

resulted in sentencing biases against the socially disadvantaged. 20 On the

other hand, the advocates of “law and order” and “get tough” crime policies

viewed unfettered judicial discretion as too lenient. Nelson argues “that this

twofold drive helps determine what type of determinate sentencing system,

if any, will develop in a given jurisdiction since the resultant sentencing will

largely be a product of both drives.” 21

In three of the States (California, Illinois, and Indiana), the legislators provided presumptive ranges of confinement. But those in Illinois and Indiana

were so wide that they provided the court with extensive discretion on

sentence length. For many offenses, there was no presumptive lead as to

whether the sentence should be for, or against, incarceration. Thus, courts

were left with extensive discretion in deciding both whether to incarcerate

and the length of incarceration. It is arguable that the discretion attacked in

these reforms was mainly that of parole boards, and that the discretion lost

by parole boards was largely shifted to the courts or to the prosecutors who

control the charging function. 22

The Illinois law provides a clear example of these points (shown in Table

2–1). The legislation, which was passed on July 1, 1977, created six major

classes of offenses for which convicted felons could be sentenced to prison:

Class M (murder); Class X (robbery, assault, rape, and kidnaping); Class 1

(attempted robbery, rape, and drug sale); Classes 2, 3, and 4, which represent property crimes (burglary, theft, and fraud); drug offenses (possession

and sale); and simple robbery. Class X was the most significant sentencing

20. Nelson, B. “The Minnesota Sentencing Guidelines: The Effects of Determinate Sentencing

on Disparities in Sentencing Decisions.” Law and Inequality 10(3)(1992), p. 217. See also

Frankel, M.E. Struggle for Justice. New York: Hill & Wang. 1971. See also Messinger, S.L.,

and P.D. Johnson. California’s Determinate Sentence Statute: History and Issues in Determinate Sentencing: Reform or Regression? Washington, DC: U.S. Department of Justice, Office

of Justice Programs, National Institute of Justice. 1978.

21. Ibid.

22. Alschuler, A.W. “Departures and Plea Agreements Under the Sentencing Guidelines.”

Federal Rules Decision 117(1988), pp. 459–476.

Determinate sentencing

was spurred by two

opposing forces:

those who believed

unfettered judicial

discretion resulted in

sentencing biased

against the socially

disadvantaged, and

those who believed

such discretion led to

leniency in sentencing.
 15

Monograph

Felony Category Regular Terms (yr) Extended Terms (yr) Examples

Murder Life or 20–40 Murder

Class X 6–30 30–60 Rape, armed robbery,

aggravated kidnaping

Class 1 4–15 15–60 Dealing in major narcotics

Class 2 3–7 7–14 Burglary, arson, robbery

Class 3 2–5 5–10 Theft (more than $150),

child abuse, involuntary

manslaughter, aggravated

battery, sale of cannabis

Class 4 1–3 3–6 Possession of cannabis

(30–50 grams), sale of child

pornography, theft (less than

$150)

Source: Austin, J. "The Use of Early Release and Sentencing Guidelines to Ease Prison Crowding: The Shifting Sands of Reform."

Paper presented at the National Academy of Sciences meeting on prison overcrowding, Chicago. 1986.

23. Note 19.

category because it mandated judges to sentence offenders convicted of these

crimes to prison for anywhere from 6 to 30 years, with possible enhancements of 30 to 60 years. Offenders sentenced for these offenses began serving

longer terms under the new law, despite the fact that inmates also were being

awarded increased amounts of statutory good-time credit (day-for-day statutory good time, as opposed to the previous one-third statutory good-time

system). The parole board’s authority to grant release was abolished, while

postrelease supervision was retained.

A determinate sentencing system may be based on a “just deserts” concept, a

utilitarian or crime control model, or some combination of sentencing goals.

A purely utilitarian (or crime control) model of punishment (e.g., concerned

with recidivism, incapacitation, and deterrence) focuses little on the crime the

offender committed but demands longer sentences for crimes in which

consequences associated with incarceration are of most concern. 23 On the

Table 2–1 Illinois Determinate Sentencing Categories and Sentencing Ranges
16

Bureau of Justice Assistance

other hand, a pure “just deserts” model emphasizes the criminal act itself

to the exclusion of crime control goals. 24 California provides a well-known

example of the evolution of a determinate sentencing model. Although

numerous subsequent amendments have changed the statute considerably,

California initially adopted a “just deserts” sentencing model. The enabling

legislation clearly stated that the “purpose of imprisonment is punishment.” 25

The legislature determined that offenses should be placed into four categories

of crimes on the basis of general severity; then presumptive lengths of incarceration were established for each category. In addition, for each presumptive

incarceration length, the legislature provided a range for aggravating and

mitigating circumstances. Table 2–2 shows the initial ranges provided for

the four classifications and the ranges for aggravation and mitigation under

California’s determinate sentencing law. These ranges apply only if the court

selects incarceration.

The California model and the State’s experience in the first few years of its

administration helped to reverse the direction of the development of structured sentencing reform models. The initial determinate sentencing law

was projected to have no impact on prison population growth. However,

Messinger and Johnson report that during the first year, there were 43 amendments to the legislation, all of which increased the severity of sentences and,

thus, the demand for prison space. 26 The large number of amendments to

the original law, they interpreted, was the result of the legislature’s attempts

to control sentencing. In Messinger and Johnson’s view, California set an

24. Note 23. See also von Hirsch, A. “The Politics of Just Deserts.” Canada Journal of

Criminology 32(1990), p. 397.

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

26. Messinger, S.L., and P.D. Johnson. California’s Determinate Sentence Statute. History and

Issues in Determinate Sentencing: Reform or Regression? Washington, DC: U.S. Department

of Justice, Office of Justice Programs, National Institute of Justice. 1978.

Presumptive Range in Range in

Sentence (yr) Aggravation (yr) Mitigation (time) Examples

2 +1 -8 mo Burglary, grand theft

3 +1 -1 yr Robbery (unarmed),

manslaughter

4 +1 -1 yr Rape, sale of heroin

6 +1 -1 yr Murder (second degree)

Table 2–2 Felony Categories and Range of Penalties in California
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Monograph

27. Casper, J., and D. Brereton. “Evaluating Criminal Justice Reforms.” Law and Society

18(1984), pp. 121–144.

28. American Bar Association. Standards for Criminal Justice—Sentencing Alternatives

and Procedures. 3d ed. Boston: Little, Brown & Company. 1993.

example of how not to develop structured sentencing in which the results

are strongly influenced by the politics of crime. In a 1983 evaluation of the

reform’s impact, Casper and Brereton concluded that the amended legislation,

as intended, increased the likelihood of incarceration and resulted in a

phenomenal growth in prison populations. 27

Sentencing Commissions and Presumptive Sentencing

Guidelines

By the early 1980’s, States began to experiment with approaches using sentencing guidelines developed by sentencing commissions. These models

differed from determinate and voluntary/advisory guidelines experiments in

three respects. First, the guidelines were not developed by the legislature but

by a sentencing commission that often represented a diverse array of criminal

justice and sometimes private citizen interests. Second, the guidelines were

explicit and highly structured, relying on a quantitative scoring instrument.

Third, the guidelines were not voluntary/advisory. Judges had to adhere to

the sentencing system or provide a written rationale for departures.

As in the move to determinate sentencing and voluntary/advisory guidelines,

the driving forces stimulating presumptive sentencing guidelines were issues

of fairness (including disparity, certainty, and proportionality) and prison

crowding. These concerns provided the impetus for States to adopt guidelines, replace indeterminate sentencing with determinate sentencing, and

abolish or curtail discretionary parole release.

The first four States to adopt presumptive sentencing guideline systems

were Minnesota (1980), Pennsylvania (1982), Washington (1983), and Florida

(1983). The Minnesota model in particular, with its focus on controlling

prison population growth, has often been cited as a successful example of

controlling disparity and rising corrections costs through sentencing guidelines. The American Bar Association has endorsed sentencing commissionbased guidelines through its Criminal Justice Standards Committee’s Sentencing Alternatives and Procedures (adopted by the ABA House of Delegates).

In making such an endorsement, the Standards Committee relied “heavily

upon the system of presumptive/ordinary offender sentencing pioneered in

a guidelines system in Minnesota.” 28

The Federal Government and 16 States have established commission-based

sentencing guidelines. According to the definitions presented in Chapter 1, 10

of the 16 States can be classified as using presumptive sentencing guidelines.

The remaining six have voluntary/advisory guideline models.

By the early 1980’s,

States began to

experiment with

approaches using

sentencing guidelines

developed by sentencing

commissions.
18

Bureau of Justice Assistance

With the exception of mandatory minimum sentencing provisions, sentencing

guidelines authored by legislatively created sentencing commissions are now

the most popular form of structured sentencing. The next chapter provides a

current listing of those States that have adopted guidelines, as well as other

State sentencing structures such as determinate sentencing or indeterminate

sentencing. Chapters 4 and 5 present detailed descriptions of presumptive

sentencing guidelines and the commissions that have written them.
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T

An Overview of Current Sentencing Practices

in the United States

Chapter 3

his chapter describes the results of a national survey of sentencing

practices in the United States conducted in late 1993 and early 1994.

The survey represents the first major national assessment of existing sentencing practices.

Information for this chapter was also culled from several other data sources

besides the national survey. The Pennsylvania Commission on Sentencing

maintains an extensive library containing documents on sentencing practices

in a number of the States. The United States Sentencing Commission (USSC)

recently conducted a national survey on mandatory sentencing for drug

offenses. Followup telephone calls were made to some individuals who have

the most detailed knowledge of their States’ sentencing practices. Finally,

information was supplemented by site visits to some States. It should be

noted that this chapter summarizes some very complex State sentencing

statutes.

A primary objective of the national survey was to classify States according

to sentencing structure. This classification required two steps: establishing

operational definitions of sentencing practices (see Chapter 1) and surveying

State respondents to determine how many of these sentencing practice types

applied to their States.

Table 3–1 shows how the responding States classified themselves according

to the definitions outlined in Chapter 1 for determinate, indeterminate, and/or

sentencing guideline structures. Including the District of Columbia, 29 States

reported having indeterminate sentencing. Some form of determinate sentencing was indicated by 20 States, and 16 States have sentencing guidelines.

All States reported having a variety of mandatory minimum incarceration

sentencing.

Table 3–1 reflects the fact that State respondents could check all the sentencing practices that applied to their States. (Fourteen respondents checked

multiple sentencing practices, excluding mandatory sentencing.) For example,

some States have determinate sentencing for one class of offenses and indeterminate sentencing for another class. A respondent also may have checked

both indeterminate sentencing and presumptive sentencing guidelines, indicating that the State uses guidelines within an indeterminate sentencing
20

Bureau of Justice Assistance

Determinate Indeterminate Sentencing Mandatory Minimum

State Sentencing Sentencing Guidelines Prison Sentencing**

Alabama ♦(P)§ ♦ ♦

Alaska ♦(P) ♦ ♦

Arizona ♦ ♦

Arkansas ♦ ♦♦

California ♦ ♦

Colorado ♦(P) ♦

Connecticut ♦(P) ♦

Delaware ♦ ♦

District of Columbia ♦ ♦

Florida ♦ ♦

Georgia ♦ ♦

Hawaii ♦ ♦

Idaho ♦(P) ♦

Illinois ♦ ♦

Indiana ♦ ♦

Iowa ♦(P) ♦

Kansas ♦ ♦

Kentucky ♦ ♦

Louisiana ♦ ♦♦

Maine ♦ ♦

Maryland ♦ ♦

Massachusetts ♦ ♦

Michigan ♦♦♦

Minnesota ♦ ♦♦

Mississippi ♦(P) ♦

Missouri ♦(P) ♦

Montana ♦ ♦

Nebraska ♦ ♦

Nevada ♦ ♦

New Hampshire ♦(P) ♦

New Jersey ♦ ♦

New Mexico ♦(P) ♦

New York ♦(P) ♦

North Carolina ♦(P) ♦§§ ♦

North Dakota ♦ ♦

Ohio ♦♦ ♦

Oklahoma ♦ ♦

Oregon ♦ ♦

Pennsylvania ♦(P) ♦ ♦

Rhode Island ♦ ♦

South Carolina ♦ ♦

South Dakota ♦ ♦

Tennessee ♦ ♦♦

Texas ♦(P) ♦

Utah ♦♦♦

Vermont ♦ ♦

Virginia ♦ ♦

Table 3–1 Sentencing Practices in the United States, as of February 1994*
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Washington ♦ ♦♦

West Virginia ♦♦ ♦

Wisconsin ♦(P) ♦ ♦

Wyoming ♦ ♦

Totals 20 29 16 51

Table 3-1 Sentencing Practices in the United States, as of February 1994* (continued)

Determinate Indeterminate Sentencing Mandatory Minimum

State Sentencing Sentencing Guidelines Prison Sentencing**

* As reported by each State responding to the national sentencing survey.

** Although all States reported having mandatory sentencing, this term has a very broad definition and varies State by State.

§ (P), partially determinate.

§§ North Carolina's guidelines took effect in October 1994.

structure. Followup contacts with several respondents revealed (1) that they

checked off presumptive sentencing guidelines but meant to check presumptive sentencing (guidance or presumptions that must be considered by the

court in sentencing) or (2) that only some judicial districts within the State

used informal guidelines.

Figure 3–1 and Table 3–2 summarize the primary forms of sentencing practices in the United States on the basis of definitions presented in Chapter 1.

States were classified according to their primary sentencing structure on the

basis of all of the information received from the survey and followup contacts. For example, a State with sentencing guidelines and indeterminate

sentencing was placed in the sentencing guidelines category; States with

both indeterminate and determinate features—such as Alabama, Alaska, and

Ohio—were classified as indeterminate if most inmates are sentenced under

the indeterminate structure. Including the District of Columbia, 30 States

were therefore classified as indeterminate sentencing types; 5 States were

classified as determinate sentencing types; and 16 States (including North

Carolina, whose guidelines became effective in October 1994) were classified

as sentencing guidelines types.

Mandatory Minimum Incarceration Sentences

in the United States

The national survey asked questions regarding mandatory minimum sentences: for example, if mandatory sentences existed, and if so, for which

offenses. States were also asked to provide more detailed information on

any mandatory minimum incarceration sentences for cases that involve

controlled substances: drug type, amount of drug, and penalty for which

the mandatory sentence applies. States also were asked to submit copies

of statutes concerning all mandatory minimum sentences.
22

Bureau of Justice Assistance

Collecting data on mandatory minimum sentences was difficult. Originally,

data were to be collected from States with mandatory minimum periods of

incarceration for selected crimes; however, several States initially reported

no mandatory sentences because (1) the sentences exist in statute but are

not used, (2) an offender may receive the mandatory sentence but is still

eligible for early release via good time and parole, or (3) the sentence is

mandatory only because incarceration cannot be suspended. It was decided

to include all these possibilities in the presentation of data.

Table 3–3 summarizes the results of the survey on mandatory minimum

sentencing. All States have some form of mandatory sentencing provisions;

the most popular application of mandatory sentencing is for repeat or habitual offenders (41 States) and for crimes accompanied by the possession

of a deadly weapon (41 States).

Survey responses indicate that Hawaii, Kansas, Kentucky, Louisiana, Maine,

Nebraska, New Hampshire, New Mexico, New York, Ohio, Oklahoma, Oregon, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wyoming

lack any drug mandatory minimums. Data indicate that mandatory minimum

sentences are imposed for all the offenses listed in Table 3–3 in Colorado,

Illinois, Pennsylvania, Rhode Island, and Wisconsin.

Figure 3–1 Types of Sentencing Practices in the United States, 1994

= Determinate = Indeterminate

= Presumptive = Voluntary/Advisory

aaaGuidelines Guidelinesaaaaaaaaaa

aaa

aaa

aa

aaaaa

aaa

aaaaa

aaaa

a

a

a

a

aa

a

aaa

a

aaaa

a

aa

a

aaaa

a

aaa

a

a

a

aaa

aaaa

aa

aaaa

aaaaaa
 23

Monograph

Table 3–2 Classification of the States by Type of Sentencing Practice, as of February 1994*

Sentencing Guideline

Determinate Indeterminate Voluntary/Advisory Presumptive

Arizona Alabama Nevada Arkansas Delaware

California Alaska New Jersey Louisiana Florida

Illinois Colorado New York Maryland Kansas

Indiana Connecticut New Mexico Michigan Minnesota

Maine District of Columbia New Hampshire Virginia North Carolina**

Georgia North Dakota Wisconsin§ Oregon

Hawaii Ohio Pennsylvania

Idaho Oklahoma Tennessee

Iowa Rhode Island Utah

Kentucky South Carolina§§ Washington

Massachusetts South Dakota

Mississippi Texas

Missouri Vermont

Montana West Virginia

Nebraska Wyoming

* For States that checked multiple sentencing types on the survey, this listing places each State in its main classification.

** North Carolina's guidelines took effect in October 1994.

§ Wisconsin's guidelines have presumptive provisions for nonviolent property offenses.

§§ South Carolina is in a state of flux. Early in 1994, its sentencing commission was designated to cease functioning, with the

guidelines unimplemented. However, recent information indicates that the commission has been extended for at least a year

and that guidelines might still be implemented.

Summarizing all the information collected on mandatory minimum sentences

for drug offenses is impossible because the types of drugs, amounts required

for the mandatory sentences to apply, and penalties vary widely. Approximately 20 States have implemented mandatory minimum sentences for drug

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

a school. One survey respondent stated that the mandatory minimum does

not apply if the offender is shown to be a “drug-dependent person.”

Currency of State Criminal Codes

States were asked to report when their criminal codes were most recently

revised or rewritten to change the elements of offenses. Most States have
24

Bureau of Justice Assistance

Mandatory Minimum Offense

 Repeat/ Drunk Possession of

State Habitual Driving Drugs Weapons Sex Offenses 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 ♦ ♦♦

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 ♦♦ ♦

Table 3–3 Offenses* for Which States Provide Mandatory Minimum Incarceration

Sentences, as of February 1994
 25

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Utah ♦ ♦

Vermont ♦ ♦

Virginia ♦♦ ♦

Washington ♦ ♦ ♦

West Virginia ♦ ♦♦

Wisconsin ♦ ♦♦ ♦ ♦♦

Wyoming ♦

Table 3–3 Offenses* for Which States Provide Mandatory Minimum Incarceration

Sentences, as of February 1994 (continued)

Mandatory Minimum Offense

 Repeat/ Drunk Possession of

State Habitual Driving Drugs Weapons Sex Offenses Other

* Not all offenses, especially drunk driving, are felonies.

not significantly revised their codes since the 1970’s. This question proved

difficult to answer for States in which revision of the criminal code is an

ongoing process, with yearly changes taking place. Several large States

reported that their codes had not been revised for some time: since 1872

for California, 1935 for Michigan, and 1967 for New York. Only nine States

reported major revisions in the 1990’s, and six States reported major revisions in the 1980’s.

States were also asked to indicate whether any commissions, task forces, or

committees had recently been formed to study and/or make recommendations to change State sentencing practices. The following States are in the

midst of studying changes:

■ Alaska established a sentencing commission in 1990, charging it with

addressing sentencing reform and prison overcrowding. The commission

released a report in December 1992 recommending changes in areas such

as the use of alternative punishments, parole, and inmate classification.

■ Hawaii formed a committee to review any needed changes to the penal

code and to report to the legislature.

■ Iowa established the Intermediate Crime Sanctions Task Force to

recommend sentencing reforms.

■ The Kentucky Governor’s Commission on Quality and Efficiency has

recommended the implementation of sentencing guidelines.

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

is considering sentencing guidelines.

■ Michigan established a sentencing commission to study the feasibility

of developing sentencing guidelines. A specific goal of the commission

is to further the concept of “truth in sentencing.”
26

Bureau of Justice Assistance

 Type of Sentencing

Sentencing Guideline Mandatory Discretionary Postrelease Good

State Practice** Commission Sentencing Release Body Supervision Time

Alabama INDET ♦ ♦ ♦♦

Alaska INDET ♦ ♦ ♦♦

Arizona DET ♦ ♦

Arkansas SG ♦♦ ♦ ♦ ♦

California DET ♦ ♦♦

Colorado INDET ♦ ♦ ♦♦

Connecticut INDET ♦ ♦ ♦♦

Delaware SG ♦♦ ♦ ♦

District of Columbia INDET ♦ ♦ ♦♦

Florida SG ♦♦ ♦

Georgia INDET ♦ ♦ ♦♦

Hawaii INDET ♦♦ ♦

Table 3–4 Summary of Key Sentencing Law Attributes in the United States, as of

February 1994

Postrelease Supervision*

■ Missouri established a sentencing commission to study the State’s sentencing practices and identify sentencing disparity.

■ Ohio established a sentencing commission in 1991 to study sentencing

laws and correctional resources. A legislative bill was introduced to eliminate parole and good time and to create flat sentences (with a series of

presumptions).

■ Oklahoma is considering a determinate “truth in sentencing” guideline

structure. A commission has been established to develop recommendations for the legislature by 1995.

Use of Parole and Good Time

The survey asked questions about discretionary release from correctional

facilities and the use of good time in these facilities (Table 3–4). In all, 48

States reported having parole or some other form of postrelease supervision,

and 48 States reported having good time for inmates at the local and/or State

levels. Hawaii, Pennsylvania, and Utah reported not having good-time provisions for inmates. Only Arizona, Florida, and Maine lack parole supervision

(except for inmates who still fall under the old sentencing structures, or for a

small number of offenders sentenced to life with the possibility of parole).

However, only Maine and the Federal system have apparently abolished

parole boards and all forms of postrelease supervision for all offenders.

In some States, such as California, Delaware, Illinois, and Oregon, parole in

its purest sense has been eliminated, replaced by some form of postrelease

supervision that is not called parole.
 27

Monograph

Table 3–4 Summary of Key Sentencing Law Attributes in the United States, as of

February 1994 (continued)

Idaho INDET ♦ ♦ ♦♦

Illinois DET ♦ ♦♦

Indiana DET ♦ ♦♦

Iowa INDET ♦ ♦ ♦♦

Kansas SG ♦♦ ♦ ♦

Kentucky INDET ♦ ♦ ♦♦

Louisiana SG ♦♦ ♦ ♦ ♦

Maine DET ♦ ♦

Maryland SG ♦♦ ♦ ♦ ♦

Massachusetts INDET ♦♦ ♦ ♦ ♦

Michigan SG ♦♦ ♦ ♦ ♦

Minnesota SG ♦♦ ♦ ♦

Mississippi INDET ♦ ♦ ♦♦

Missouri INDET ♦ ♦ ♦♦

Montana INDET ♦ ♦ ♦♦

Nebraska INDET ♦ ♦ ♦♦

Nevada INDET ♦ ♦ ♦♦

New Hampshire INDET ♦ ♦ ♦♦

New Jersey INDET ♦ ♦ ♦♦

New Mexico INDET ♦ ♦ ♦♦

New York INDET ♦ ♦ ♦♦

North Carolina SG ♦♦ ♦§ ♦§ ♦

North Dakota INDET ♦ ♦ ♦♦

Ohio INDET ♦ ♦ ♦♦

Oklahoma INDET ♦ ♦ ♦♦

Oregon SG ♦♦ ♦ ♦

Pennsylvania SG ♦♦ ♦ ♦

Rhode Island INDET ♦ ♦ ♦♦

South Carolina INDET ♦♦ ♦ ♦ ♦

South Dakota INDET ♦ ♦ ♦♦

Tennessee SG ♦♦ ♦ ♦ ♦

Texas INDET ♦ ♦ ♦♦

Utah SG ♦♦ ♦ ♦

Vermont INDET ♦ ♦ ♦♦

Virginia SG ♦♦ ♦ ♦ ♦

Washington SG ♦♦ ♦ ♦

West Virginia INDET ♦ ♦ ♦♦

Wisconsin SG ♦♦ ♦ ♦ ♦

Wyoming INDET ♦ ♦ ♦♦

* Although several States reported having no parole supervision, only Maine has fully abolished parole. In the other States, parole

in its purest usage has been eliminated, replaced by some other form of postrelease supervision that is not called parole; or

parole still exists, but only for inmates sentenced under a former sentencing policy.

** INDET, indeterminate; DET, determinate; SG, sentencing guidelines.

§ As of October 1994.

 Type of Sentencing

Sentencing Guideline Mandatory Discretionary Postrelease Good

State Practice** Commission Sentencing Release Body Supervision Time

Postrelease Supervision*
28

Bureau of Justice Assistance

Table 3–5 Sentencing Guideline States in the Nation, as of February 1994

Guidelines Sentencing

State Voluntary/ Year Implemented

Advisory Presumptive Determinate Indeterminate

Arkansas ♦ 1994 ♦

Delaware ♦ 1987 ♦

Florida ♦ 1983 ♦

Kansas ♦ 1993 ♦

Louisiana ♦ 1992 ♦

Maryland ♦ 1983 ♦

Michigan ♦ 1981 ♦

Minnesota ♦ 1980 ♦

North

Carolina* ♦ 1994 ♦

Oregon ♦ 1989 ♦

Pennsylvania ♦ 1982 ♦

Tennessee ♦ 1989 ♦

Utah ♦ 1993 ♦

Virginia ♦ 1991 ♦

Washington ♦ 1983 ♦

Wisconsin ♦** 1985 ♦

* Effective October 1994.

** With some presumptive provisions.

Sentencing Commissions in the United States

Information on States that have adopted sentencing guidelines and have

sentencing commissions is summarized in Table 3–5 and portrayed in

Figure 3–2. It should be noted that use of the term “commission” is a generalization; entities in some States may have other names, such as “committee.” In 10 of the 16 States having sentencing commissions and sentencing

guidelines, the guidelines are presumptive; the other 6 States (Arkansas,

Louisiana, Maryland, Michigan, Virginia, and Wisconsin) have voluntary/

advisory guidelines.

In addition to the 16 States listed in Table 3–5, at least 5 other States (Kentucky, Massachusetts, Missouri, Ohio, and Oklahoma) have guidelines and/or

a sentencing commission under study. Although it has voluntary/advisory
 29

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Figure 3–2 Status of Sentencing Guideline Commissions in the United States, 1994

= Commission in Existence

= No Commission

= Commission Under Study

guidelines, Michigan has established a sentencing commission to further study

its sentencing practices and to propose a more structured sentencing scheme.

In South Carolina, the status of guidelines remains in flux. Initial data indicated that the guideline commission would cease to exist in June 1994 and

that guidelines would not be implemented.

Although sentencing guidelines have been the dominant form of sentencing

reform during the past two decades, it is also true that most States have not

adopted that sentencing structure, and several others have tried but failed to

implement guidelines. Some of the factors that impede or facilitate a State’s

ability to adopt sentencing guidelines are addressed in the following two

chapters.
30

Bureau of Justice Assistance
 31

Monograph

Sentencing Commission Structures and

Their Mandates

Chapter 4

he sentencing commission’s sociopolitical environment and legislative mandate strongly influence its role, the quality of its guidelines,

and its ability to implement—and obtain conformance to—its sentencing

guidelines. For purposes of discussion in this chapter, a sentencing commission is a State agency that issues guidelines for the sentencing court. The

purposes of the reform, the specific legislative structure of the commission

and the mandates included in the enabling legislation, and the political and

legal context are examined in the following pages.

The collection of information for this report included the study of documents

provided by all the State guideline systems and the United States Sentencing

Commission (USSC). Visits were made to Delaware, Kansas, Louisiana, Maryland, North Carolina, South Carolina, Tennessee, Virginia, and Washington. In

these States, key individuals involved in the development of the sentencing

guidelines were interviewed. Finally, where guidelines have been implemented, available data on the impact of the guidelines were reviewed. However, because of the dynamic quality of sentencing—sentencing commissions

and sentencing guidelines in particular—important changes occurred constantly and material had to be updated regularly. The classification of State

sentencing systems was simplified in areas such as the degree of determinateness and the degree of presumptiveness for purposes of presentation. Therefore, some will disagree or argue that their State system is more complex.

However, to communicate general trends to legislators and others who may

know little about sentencing, it was necessary to simplify the discussion.

Purposes of Reform

States create sentencing commissions for many reasons. Researchers found

that the most frequently cited reasons are to increase sentencing fairness, to

reduce unwarranted disparity, to establish truth in sentencing, to reduce or

control prison crowding, and to establish standards for appellate review of

sentences. These purposes are not all or universally accepted, and the means

used to implement them vary among jurisdictions. The purposes outlined

by commissions influence nearly every aspect of the guideline development

process. Therefore, each guideline system should be evaluated against its

T
32

Bureau of Justice Assistance

stated goals. This section describes the issues and the various approaches

that many States and the Federal Government have taken in addressing their

specific purposes.

Fairness and Sentencing Disparity

Fairness covers a number of issues that sentencing reforms have addressed

over the past 20 years. Fairness refers to reducing unwarranted sentencing

disparity, making sentences commensurate with the seriousness of offenses,

and increasing certainty and predictability. 1

 For purposes of this discussion,

certainty and predictability are considered issues related to what is commonly

referred to as truth in sentencing, described in the next subsection.

Although sentencing disparity is the primary fairness concern, it is also difficult to define. Generally, disparity is defined as different sentencing of “similarly situated” offenders and the similar sentencing of dissimilar offenders.

However, the meaning of “similarly situated” can vary. For some it means that

sentences should be proportionate to the severity of the offense. 2

 For others,

it means that sentencing should focus on “culpability” or the seriousness of

the offense considered with any prior record. 3

 Guidelines have generally

provided detailed measures of offense severity and criminal history, relying

on courts to consider other relevant sentencing factors.

Proportionality is one of the most important principles in establishing a fair

and equitable sentencing system. In setting sentences that are proportional,

two dimensions are considered: ordinal proportionality, which refers to the

setting of punishments relative to the offenses, and cardinal proportionality,

which refers to the “absolute severity levels... chosen to anchor the penalty

scale.”4

Sentencing commissions generally begin drafting guidelines by placing offenses into levels of severity and then assigning penalties (prison, intermediate punishment, or probation and sentence lengths) to these severity levels.

Commissions therefore establish sentences proportionate to each other (what

von Hirsch refers to as ordinal proportionality 5

). For example, if the sentencing commission establishes a 2-year term of incarceration for assault with

1. Goodstein, L., J.H. Kramer, and L. Nuss. “Defining Determinancy: Components of the

Sentencing Process Ensuring Equity and Release Certainty.” Justice Quarterly 1(1)(1984),

pp. 47–73.

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

Ballinger. 1979.

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

4. von Hirsch, A. “Equality, Anisonomy, and Justice: A Review of Madness and the Criminal

Law.” Michigan Law Review 82(4)(1984), pp. 1093–1112.

5. Note 4.

Guidelines . . .

provide detailed

measures of offense

severity and criminal

history, relying on

courts to consider

other relevant factors.
 33

Monograph

serious bodily injury and a 1-year term for assault with bodily injury, the

assault with serious bodily injury is considered twice as severe as the assault

with bodily injury.

Cardinal proportionality, however, determines the overall penalty structure.

For example, the USSC used the mandatory penalties established by Congress

as its benchmark. Consequently, the overall scale of sentencing guidelines for

Federal drug sentences are the drug mandatory sentences set by Congress.

Similarly, the State of Washington’s Sentencing Guidelines Commission

(WSGC) chose its mandatory sentences for violent offenses to establish their

most severe sentence recommendations. When establishing other penalties,

WSGC worked down from these recommendations.

Truth in Sentencing

A recent theme of the structured sentencing reform movement is truth in

sentencing. Truth in sentencing attacks sentencing models that allow offenders to serve only a portion of their imposed sentence. According to the U.S.

Department of Justice, the average sentence imposed in 1990 was 65 months,

while the average time served in prison was 22 months, or 34 percent of

the sentence.6

 Truth in sentencing is a legislative means of restoring public

confidence in their criminal justice system by requiring offenders to serve

their full (or almost full) sentences. Such legislation brings certainty and

predictability to sentencing.

Most truth in sentencing systems adopt several essential ingredients. First,

they generally eliminate the indeterminate sentence, replacing it with a

determinate sentencing format. Second, the sentence reflects the actual

amount of time an offender will serve, with very limited amounts of good

or earned time deducted from the sentence. Third, the parole release

decision is eliminated, but postrelease supervision is usually retained.

Such a sentencing system increases certainty and predictability for the duration of confinement. However, in most such systems, the decision about who

will be incarcerated is less structured and less predictable. The discussion of

the California and Illinois determinate sentencing systems in Chapter 2 exemplifies the uncertainty of the confinement decision under these determinate

sentencing systems.

When combined with statutorily enacted truth in sentencing provisions,

sentencing guideline systems can reduce disparity and increase certainty

about the decision of incarceration. Because sentencing commissions often

concern themselves with both correctional resources and unwarranted

sentencing disparity, they generally address the length of incarceration

6. Bureau of Justice Statistics. National Corrections Reporting Program, 1990. Washington,

DC: U.S. Department of Justice, Office of Justice Programs. 1993, Table 2–7.

The average sentence

imposed in 1990 was

65 months, while the

average time served

in prison was 22

months . . .
34

Bureau of Justice Assistance

and who is incarcerated. Moreover, as sentencing guideline systems evolve

over time, they are focusing on the vast array of intermediate punishments

that States are developing. Thus, incarceration is often being exchanged for

intermediate punishments such as house arrest, intensive supervision, and

drug treatment.

Prison Crowding

Severe prison crowding stimulated the growth of sentencing commissions

and sentencing guidelines in many States. The crisis of prison crowding

strains State budgets and requires States to reassess their correctional resources. Several States with guidelines indicated that the problem of

crowding became so severe that it drove the creation of a sentencing commission and capacity-linked sentencing guidelines. Who is incarcerated

and for how long was an issue not only of fairness but also of economics.

Many State correctional systems are being pressured to relieve prison crowding. In response, some States have implemented emergency release measures,

accelerated parole release, and instituted other methods to control inmate

populations. Moreover, States that have built additional space and avoided

court intervention are facing skyrocketing correctional budgets. State legislatures must deal with many demands on extremely tight budgets. With correctional growth taking an increasingly large share of State budgets, legislators

are looking for ways to manage the growth of correctional populations and

thus the growth of the correctional budget.

Consequently, some States have turned to commission-authored sentencing

guidelines and the reform of sentencing structures to control who should go

to prison and for how long. The guideline systems offer the ability to project

future prison populations. Within the guidelines, resource-sensitive policy

choices can be made and, if necessary, adjusted to manage expensive correctional capacity. The experiences of Minnesota, Oregon, and Washington are

instructive in that these States have developed guidelines to manage who

goes to prison and for how long. These States can therefore anticipate future

needs and can focus prison resources on specific offenders, thereby conserving prison resources and ensuring space for violent offenders.

Overcrowding is not divorced from the issue of fairness. Overcrowded prison

populations can create dangerous and unlawful environments for the management and treatment of offenders. The principles of fairness and humanity

dictate that offenders are provided a reasonable living environment. Thus,

both guideline and nonguideline States have established capacity limits to

reflect fairness as well as economic concerns.

Guideline systems

offer the ability to

project future prison

populations.
 35

Monograph

Sentencing Commission Structure, Mandates,

and Organization

Well-conceived enabling legislation is crucial for the success of a sentencing

commission and its guidelines. First, the legislation identifies participants in

the development of the sentencing guidelines (commission members). Second, it sets forth the legal mandates for the commission such as factors that

must be considered in writing guidelines. Third, it establishes the implementation process and enforcement mechanism of the guidelines. Finally, it communicates the political agenda to the commission. In the following section,

these and other aspects of a sentencing commission’s structure and organization are reviewed.

Commission Membership

Table 4–1 identifies States that have established sentencing commissions,

along with the membership and size of each commission. These data illustrate

the range in commission size (from 7 on the United States Sentencing Commission (USSC) to 28 in North Carolina) and commission diversity. It should

also be noted that except for USSC, all of the State sentencing commission

members serve as part-time members.

Commission membership and size reflect the interests of a State in creating

a commission and the groups that are defined as significant in writing sentencing guidelines. For example, on Pennsylvania’s 11-member sentencing

commission, which is not mandated to manage or consider prison population

size, corrections is not represented. Judicial and legislative appointments

represent more than three-fourths of the commission’s membership. When

Pennsylvania’s commission was created, its prisons were not suffering from

overcrowding: there was apparently no need for a strong corrections presence. Because judges and legislators were seen as the major sentencing

constituents, they played significant roles on the commission.

Susan Martin juxtaposed Pennsylvania’s judicially and legislatively focused

commission with Minnesota’s representation, which included private citizens

and correctional representation. 7

 According to Martin, this difference in

membership is a significant reason for Minnesota’s sensitivity to correctional

resources, compared with Pennsylvania’s greater sensitivity to a political

agenda.

Kramer et al. assessed the impact of this difference in their study of the policy

choices. 8

 They applied the Minnesota, Pennsylvania, and Washington guide7. Martin, S. “The Politics of Sentencing Reform: Sentencing Guidelines in Pennsylvania and

Minnesota.” In Research and Sentencing: The Search for Reform, vol. 2, ed. A. Blumstein,

J. Cohen, S. Martin, and M. Tonry. Washington, DC: National Academy Press. 1983.

8. Kramer, J.H., L. Lubitz, and A. Kempinen. “Sentencing Guidelines: A Quantitative Comparison of Sentencing Policy in Minnesota, Pennsylvania and Washington.” Paper presented at

the annual meeting of the American Society of Criminology, San Diego, November 1989.

Well-conceived

enabling legislation is

crucial for the success

of a sentencing

commission and its

guidelines.
36

Bureau of Justice Assistance

Arkansas 9* Private citizen (2), defense attorney (2), judge (3), prosecuting attorney (2)

Delaware 11** Attorney general (1), parole board (1), chief magistrate (1), commissioner of

corrections (1), judge (3), private citizen (2), attorney (1), public defender (1)

Florida 15 Attorney general (1), defense attorney (2), judge (5), legislator (4), private

citizen (2), prosecuting attorney (1)

Kansas 13 Attorney general (1), chief court services officer (1), community corrections

director (1), corrections (1), district attorney (1), judge (3), parole board (1),

private citizen (2), private defense attorney (1), public defender (1)

Louisiana 18 Defense attorney (2), judge (8), law enforcement (2), legislator (4), prosecuting

attorney (2)

Michigan 11 Corrections (1), defense attorney (1), judge (3), law enforcement (1),

miscellaneous (1), private citizen (3), prosecuting attorney (1)

Minnesota 11 (9§) Corrections (1), defense attorney (1), judge (3), local government (1), parole

board (1), private citizen (3), prosecuting attorney (1)

North 28 (23§§) Academic (1), attorney general (1), bar association (1), business (1), comCarolina munity corrections (1), corrections (1), county commissioner (1), defense

attorney (1), former inmate (1), judge (4), justice fellow (1), law enforcement

(3), legislator (6), member-at-large (1), parole board (1), private citizen (1),

prosecuting attorney (1), victim assistance (1)

New York 14 Defense attorney (3), judge (2), probation (1), prosecuting attorney (1), public

citizen (6), sentencing researcher (1)

Ohio 17 Defense attorney (1), ex officio (2), judge (incl. Chief Justice) (6), law

enforcement (2), legislator (4), prosecuting attorney (1), victim (1)

Oregon 14¤ Attorney (2), attorney general (1), corrections (1), county commissioner (1),

district attorney (2), law school faculty member (1), mental health (1), parole

board (1), private citizen (1), psychiatric review board (1), State Council on

Crime and Delinquency (1), sheriff (1)

Pennsylvania 11 Academic (1), defense attorney (1), judge (4), legislator (4), prosecuting

attorney (1)

Tennessee 16 Corrections (1), judge (4), defense attorney (1), law enforcement (1), legislator

(2), parole board (1), private citizen (3), prosecuting attorney (1), State Code

Revision (1), sheriff (1)

Texas 25 Appellate judge (2), attorney (3), Board of Criminal Justice (1), corrections (2),

judge (4), law school dean (1), member/House of Representatives (4),

Secretary of State/ex officio (1), sheriff (1), State Senator (5), warden (1)

U.S. Federal 7 Judge (3), private citizen (4)

System

Utah 27 (19¤¤) Board of Pardons (1), corrections (1), Criminal Justice Council (1), member/

House of Representatives (2), Senator (2), appellate judge (1), public

defender (2), prosecuting attorney (1), chief of police (1), private citizen (2),

juvenile prosecutor (1), defense attorney (2), youth parole representative (1),

director of youth corrections (1), rehabilitation specialist (2), trial judge (2),

attorney general (1), sheriff (1), member at large (1), juvenile court judge (1)

Table 4–1 Sentencing Guideline Commission Membership

No. of

Voting

State Members Composition of Membership
 37

Monograph

lines to more than 8,000 felony cases and found that Minnesota and Washington, with their focus on correctional capacity, established guidelines that

preserved resources for violent offenders in the State system. Pennsylvania,

with no capacity constraint, had a more punitive guideline system overall.

The severity of Pennsylvania’s sentencing was based primarily on its more

severe sentences for nonviolent offenders. The most obvious reasons for

these differences were the legislative mandates for the Minnesota and Washington sentencing commissions to consider prison capacity and the representation of correctional interests on their State commissions. Pennsylvania had

neither and consequently wrote guidelines increasing certainty and length

of incarceration. 9

The type and breadth of representation on State sentencing commissions

influence the quality of the guidelines that are written and the ability of

a commission to ensure implementation of the guidelines. For example,

an interview with Robin Lubitz of the North Carolina Sentencing and

Policy Advisory Commission revealed that its 28-member commission was a

Table 4–1 Sentencing Guideline Commission Membership (continued)

No. of

Voting

State Members Composition of Membership

Virginia 7 Judge (7)

Washington 16 Corrections (1), defense attorney (2), director of financial management (1),

executive director (1), judge (4), law enforcement (1), parole board (1), private

citizen (3), prosecuting attorney (2)

Wisconsin 17 Attorney general (1), Chair/Parole Commission (1), defense attorneys (2),

judge (4), legislator (2), private citizen (1), prosecuting attorney (1), Secretary/

Department of Corrections (1), State public defender (1), victim

representatives (3)

* The Arkansas commission has two advisory members: the chair of the Senate Judicial Committee and the chair of the

House Judicial Committee.

** Delaware’s structured sentencing program is implemented by the Sentencing Accountability Commission (SENTAC).

§ Minnesota’s original 9-member commission has been expanded to include 11 members.

§ § North Carolina’s commission originally had 23 members. In 1992, 2 members of the State House of

Representatives and 2 members of the State Senate were added; the 28th member was added in 1993.

¤ Members of the Oregon Sentencing Guidelines Board also participate on the Oregon Criminal Justice Council.

To avoid conflict with statutes regarding separation of powers, judges and legislators may not sit on the Sentencing

Guidelines Board; however, they participate in the decisionmaking process.

¤ ¤ Utah added eight members to its sentencing commission in 1994.

9. However, it should also be noted that the Wisconsin commission has correctional

representation but was not specifically charged to restrict prison populations.
38

Bureau of Justice Assistance

tremendous asset in developing support for both the concept of sentencing

guidelines and the guidelines themselves:

. . . although that size made it very difficult in the beginning, when

it coalesced it was a potent force. So in retrospect if I were to do

it again, I would probably have a Commission about the same size

even though if you had asked me that a couple of years ago I

would have said it was much too big to be effective.10

Oregon’s guideline development process is another example of how broadbased participation fostered commitment to the guidelines among different

criminal justice factions. Kathleen Bogan, former Executive Director of the

Commission, indicated that:

The strength of Oregon’s approach was that all three branches of

government, including judges and legislators, participated in the

development of the guidelines at the council level, while at the

same time avoiding any unconstitutional mix of the three branches

in a promulgating body, thus broadening support for and understanding of the guidelines. 11

The Oregon sentencing commission consists of judges, defense attorneys,

prosecutors, legislators, and criminal justice professionals (including corrections officials). The Oregon experience illustrates the principle that when

various groups contribute to the development of a guideline system, members

of those groups will more likely take a proprietary and supportive interest

in the final product.

Sentencing Commission’s Mandate and Purposes

Table 4–2 summarizes the mandates for many State sentencing commissions

and USSC. Several important themes adopted by legislatures as principles

under which a commission is to operate emerge, as do several principles to

be fulfilled by commission guidelines. This section presents some of these

themes for States considering the creation of a commission or for States

with commissions that may be considering revisions of their commissions’

mandates.

Purpose of Sentence. Judges have historically been responsible for passing

sentences for diverse and conflicting purposes, including to rehabilitate, deter,

incapacitate, restore, and punish. Table 4–2 shows that many commissions are

mandated to accomplish these purposes, whereas others prioritize them. For

example, Arkansas, a State that recently implemented its guidelines, endorses

10. Lubitz, R. “North Carolina Legislature Considers Sentencing Change.” Overcrowded

Times 4(2)(1993), pp. 1, 9–10.

11. Bogan, K.M. “Constructing Felony Sentencing Guidelines in an Already Crowded State:

Oregon Breaks New Ground.” Crime and Delinquency 36(4)(1990), pp. 467–487.
 39

Monograph

State Purpose/Goals

Table 4–2 Purposes of Sentencing, From Enabling Legislation* of Selected

States

Arkansas

Delaware

Louisiana

Minnesota

* This information was taken from original legislation. Paragraph numbering and lettering have been removed.

■ To punish an offender commensurate with the nature and extent of the harm caused by the

offense, taking into account factors that may diminish or increase an offender’s culpability.

■ To protect the public by restraining offenders.

■ To provide restitution or restoration to the victims of crime to the extent possible and

appropriate.

■ To assist the offender toward rehabilitation and restoration to the community as a lawful

citizen.

■ To deter criminal behavior and foster respect for the law.

■ Incapacitation of the violence-prone offender.

■ Restoration of the victim as nearly as possible to his or her pre-offense status.

■ Rehabilitation of the offender.

■ To recommend a uniform sanctioning policy which is consistent, proportional, and fair for use by

the Louisiana judiciary in felony cases in which the sentencing court must determine the sentence

imposed.

■ Not to apply to capital cases, cases punishable by a mandatory sentence of life imprisonment, or

misdemeanor cases.

■ Not to apply to convictions for felony offenses for which no crime seriousness level has been

determined. In such cases, the court may be guided by the guideline range for a ranked offense

which the court determines to be analogous to the offense of conviction.

■ To ensure certainty, uniformity, consistency and proportionality of punishment, fairness to victims,

and the protection of society.

■ To provide rational and consistent criteria for imposing criminal sanctions in a uniform and

proportionate manner.

❑ Uniformity in sentencing requires that offenders who are similar with respect to relevant

sentencing criteria should receive similar sanctions, and that offenders who are substantially

different with respect to relevant sentencing criteria should receive different sanctions.

❑ Proportionality in sentencing requires that the severity of the punishment be proportional to the

seriousness of the offense of conviction and the severity of the offender’s prior criminal history.

■ To assist the court in stating for the record the considerations taken into account and the factual

basis for imposing sentence.

■ Sentencing should be neutral with respect to the race, gender, social, or economic status of

convicted felons.

■ While commitment to the Commissioner of Corrections is the most severe sanction that can follow

conviction of a felony, it is not the only significant sanction available to the sentencing judge.

Development of a rational and consistent sentencing policy requires that the severity of sanctions

increase in direct proportion to increases in the severity of criminal offenses and the severity of

criminal histories of convicted felons.

■ Because the capacities of state and local correctional facilities are finite, use of incarcerative

sanctions should be limited to those convicted of more serious offenses or those who have

longer criminal histories. To ensure such usage of finite resources, sanctions used in sentencing convicted felons should be the least restrictive necessary to achieve the purposes

of the sentence.

■ While the sentencing guidelines are advisory to the sentencing judge, departures from the

presumptive sentences established in the guidelines should be made only when substantial and

compelling circumstances exist.
40

Bureau of Justice Assistance

12. See entry for Arkansas in Table 4–2.

Table 4–2 Purposes of Sentencing, From Enabling Legislation* of Selected

States (continued)

State Purpose/Goals

all of these purposes of sentencing in its legislation, but leaves how to accomplish them to the guidelines and to the discretion of the judge implementing

the guidelines. Clearly, many of these purposes of sentencing contradict each

other: if one takes priority, the ability to accomplish another one is diminished. For example, when a sentence is intended to “punish an offender

commensurate with the nature and extent of the harm caused by the offense,

taking into account factors that may diminish or increase an offender’s culpability,” 12 how can this punishment be consistent with policies attempting to

North Carolina

Oregon

* This information was taken from original legislation. Paragraph numbering and lettering have been removed.

■ Sentencing policies should be consistent and certain: Offenders convicted of similar offenses, who have

similar prior records, should generally receive similar sentences.

■ Sentencing policies should be truthful: The sentence length imposed by the judge should bear a close

and consistent relationship to the sentence length actually served.

■ Sentencing policies should set resource priorities: prisons and jails should be prioritized for violent and

repeat offenders, and community-based programs should be used for non-violent offenders with little or

no prior record.

■ Sentencing policies should be supported by adequate prison, jail, and community resources.

■ To punish each offender appropriately, and to insure the security of the people in person and property,

within the limits of correctional resources provided by the Legislative Assembly, local governments, and

the people.

■ To forward the objectives described above by defining presumptive punishments for post-prison

or probation supervision violations, again subject to deviation.

■ To adhere to the following basic principles:

❑ The response of the corrections system to crime, and to violation of post-prison and probation

supervision, must reflect the resources available for that response. A corrections system that

overruns its resources is a system that cannot deliver its threatened punishment or its rehabilitative

impact. This undermines the system’s credibility with the public and the offender, and vitiates the

objectives of prevention of recidivism and reformation of the offender. A corrections system that

overruns its resources can increase the risk to life and property within the system and to the public.

❑ Under sentencing guidelines the response to many crimes will be state imprisonment. Other

crimes will be punished by local penalties and restrictions imposed as part of probation. All

offenders released from prison will be under post-prison supervision for a period of time. The

ability of the corrections systems to enforce swiftly and sternly the conditions of both probation

and post-prison supervision, including by imprisonment, is crucial. The use of state institutions

as the initial punishment for crime must, therefore, leave enough institutional capacity to permit

imprisonment when appropriate, for violation of probation and post-prison supervision conditions.

❑ Subject to the discretion of the sentencing judge to deviate and impose a different sentence

in recognition of aggravating and mitigating circumstances, the appropriate punishment for

a felony conviction when compared to all other crimes and the offender’s criminal history.

❑ Subject to the sentencing judge’s discretion to deviate in recognition of aggravating and mitigating

circumstances, the corrections system should seek to respond in a consistent way to like

violations of probation and post-prison supervision conviction.
 41

Monograph

rehabilitate the offender? Commensurate punishments may sometimes be

consistent with rehabilitative sentences; however, more often than not, the

sentence imposed to meet a punishment goal will be inconsistent with a

sentence passed to rehabilitate an offender.

Minnesota’s enabling legislation seems to recognize the potential dissonance among the goals of sentencing and sets forth a mandate stating

Table 4–2 Purposes of Sentencing, From Enabling Legislation* of Selected

States (continued)

Tennessee

U.S. Sentencing

Commission

Washington

* This information was taken from original legislation. Paragraph numbering and lettering have been removed.

State Purpose/Goals

■ To promote justice, as manifested below, consistent with the mandate below, which section

defines the duties of the Tennessee Sentencing Commission. In so doing, the following

principles are hereby adopted.

❑ To impose a sentence justly deserved in relation to the seriousness of the offense.

❑ To assure fair and consistent treatment of all defendants by eliminating unjustified

predictability of the criminal law and its sanctions.

❑ To prevent crime and promote respect of the law by:

– Providing an effective general deterrent to those likely to violate the criminal laws of

this state.

– Restraining defendants with a lengthy history of criminal conduct.

– Encouraging effective rehabilitation of those defendants, where reasonably feasible,

by promoting the use of alternative sentencing and correctional programs that elicit

voluntary cooperation of the defendant.

– Encouraging restitution to victims where appropriate.

❑ To exclude all considerations respecting race, gender, and social status of the individual.

❑ To give first priority regarding sentencing involving incarceration to convicted felons

committing the most severe offenses, possessing criminal histories showing a clear

disregard for the laws and morals of society, and evincing failure of past efforts at

rehabilitation.

❑ To encourage alternative sentencing options in the discretion of the court for defendants

who do not fall within the parameters above and receive a sentence of 8 years or less and

are presumed, in the absence of evidence to the contrary, to possess capabilities

for rehabilitation.

■ To comply with the purposes set forth [below], considering—

❑ The nature and circumstances of the offense and the history and characteristics of the

defendant.

❑ The need for the sentence imposed—

– To reflect the seriousness of the offense, to promote respect for the law, and to provide

just punishment for the offense.

– To afford adequate deterrence to criminal conduct.

– To protect the public from further crimes of the defendant.

– To provide the defendant with needed educational or vocational training, medical care, or

other correctional treatment in the most effective manner.

■ Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense

and the offender’s criminal history.

■ Promote respect for the law by providing punishment which is just.

■ Be commensurate with the punishment imposed on others committing similar offenses.

■ Protect the public.

■ Offer the offender an opportunity to improve himself or herself.

■ Make frugal use of the State’s resources.
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Bureau of Justice Assistance

that “[D]evelopment of a rational and consistent sentencing policy requires

that the severity of sanctions increase in direct proportion to increases in the

severity of criminal offenses and the severity of criminal histories of convicted

felons.” 13 Although the reference to criminal history might have spurred the

commission to develop an ineffective model, the commission used this mandate to adopt a modified just-desert model of sentencing.

Pennsylvania adopted guideline modifications whose purposes vary depending on the severity of the offense and the severity of a defendant’s prior

record. Although Pennsylvania emphasizes punishment overall, the commission prioritizes other purposes that it has created in the guidelines. About

offenders receiving sentences that call for relatively short terms of incarceration or that allow for nonconfinement options, the Pennsylvania commission

states, “Many [of them]... suffer from drug and/or alcohol problems and the

court should consider a treatment component to address the rehabilitative

needs of such offenders.” 14

It should be noted that legislatures have failed in most circumstances to

prioritize the purposes of sentencing; this failure has left the commission

with the difficult responsibility of drafting sentencing guidelines that must

address conflicting purposes. In most cases (except in Minnesota), commissions have therefore developed guidelines using measures of offense severity

and criminal history, leaving to the courts the discretion to aggravate and

mitigate the sentence as a means of considering rehabilitation and other

sentencing purposes.

Fairness and Certainty. According to Table 4–2, many States direct their

sentencing commissions to make sentences fair and certain. The concept of

fairness and certainty is inherent in the reform of sentencing models such as

the replacement of indeterminate sentencing with determinate sentencing.

This reform usually involves the elimination of parole release, or the allowance of good time that varies from a 33-percent reduction in Minnesota to a

15-percent reduction in the Federal determinate sentencing guideline system.

The guideline system constructed by the commission includes the ranges

within the guidelines, the standard on appeal when the court departs from

the guidelines, and the consideration of factors that may allow the court to

consider what social scientists call extralegal factors, including education

level and employment status. Minnesota’s enabling legislation directed that

“[S]entencing should be neutral with respect to race, gender, social, or economic status of convicted felons.” 15 The Federal system and Tennessee’s

enabling legislation contained similar mandates. Other States generally do

13. See entry for Minnesota in Table 4–2.

14. Pennsylvania Commission on Sentencing. Sentencing in Pennsylvania: Annual Report.

State College, 1994.

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

The concept of fairness

and certainty is inherent in the reform of

sentencing . . .
 43

Monograph

not address these issues; the consideration of factors such as education and

employment status, which may be indirectly racially linked, are therefore

allowed unless the commission sets forth such a policy in the guidelines.

Correctional Capacity Mandate

Many State legislatures direct their sentencing commissions to consider prison

capacity as they develop guidelines (Table 4–3). This fact suggests the importance of prison crowding in the creation of sentencing commissions. In many

instances, the enabling legislation requires the commission to estimate the

fiscal impact of the guidelines on correctional resources.

Minnesota, Oregon, and Washington have enabling legislation that requires

guidelines to consider correctional resources. Minnesota’s legislation set a

precedent in 1978 by specifying that “... the commission shall take into

substantial consideration correctional resources . . . ” and Oregon’s legislation

states that “factors relevant to appropriate sentencing include... effective

capacity of State and local corrections facilities....” 16

Washington was specifically mandated to make “frugal use of the state’s

resources.” Its enabling legislation requires (1) the sentencing commission to

study State correctional capacity, projecting the impact of guidelines on that

capacity; and (2) the commission to prepare alternative sentence recommendations that do not exceed capacity (if guidelines are projected to exceed

prison capacity). Furthermore, the legislation enables Washington’s governor

to declare a state of emergency regarding State prison crowding and to call

the sentencing commission into emergency meetings to deal with the crowding situation.

The issue of capacity restraint is important for limiting the severity of sanctions (number incarcerated and length). Susan Martin’s research on the

guideline process in Minnesota and Pennsylvania concludes that Minnesota’s

adoption of a capacity agenda imposed reasonable restrictions on the ability

of the sentencing commission to rely on imprisonment as a sentencing

option and a foil to critics who pushed for greater severity. Martin argued

that the Minnesota Commission created a rationale for reasonable restraint

on the capacity to punish.17 On the other hand, Pennsylvania, acting without

a prison capacity limit on its guidelines, struggled to counter arguments for

harsher penalties. 18

16. Note 11, p. 469.

17. Note 7.

18. Data in Chapter 6 comparing incarceration rates between Minnesota and Pennsylvania

(since each has implemented sentencing guidelines) indicate that both States have significantly altered incarceration rates as intended, although other factors such as conviction

numbers, decisions by others in the system, and the adoption of mandatory minimum

sentencing provisions will influence the incarceration rate.

The issue of capacity

restraint is important for

limiting the severity of

sanctions.
44

Bureau of Justice Assistance

Table 4–3 Legislative Direction Regarding Consideration of Prison Capacity

Arkansas “The Arkansas sentencing commission shall be in charge of strategic planning for a

balanced correctional plan for the state . . . [and] assess [sentencing standards’] impact

on the correctional resources of the state . . . .” Arkansas A.C.A. 16–90–802(4)(A,C)

Delaware “The commission shall develop sentencing guidelines . . . with due regard for

resource availability and cost.” Delaware Code 1984 § 6580 Subchapter X(c)

Florida “Use of incarceration sanctions is prioritized toward offenders convicted of serious offenses

and certain [others] who have long prior records, in order to maximize the finite capacities

of state and local correctional facilities.” Laws of Florida 1993, Ch. 93–406

Kansas “. . . The commission shall take into substantial consideration current sentencing and

release practical and correctional resources, including but not limited to the capacities of local and state correctional facilities.” Laws of Kansas 74–9101

Louisiana “. . . coordinate state sanctioning policy with state correctional policy and resources.”

Louisiana revised statutes 1987 15:321–329

Minnesota “. . . The commission shall take into substantial consideration current sentencing and

release practices and correctional resources . . . .” Laws of Minnesota 1978, Ch. 723–S.F.

No. 65—Subdivision 5(2)

North “Sentencing policies should be supported by adequate prison, jail, and community

Carolina resources.”

Ohio “The sentencing structure shall . . . assist in the management of prison overcrowding

and correctional resources . . . .” Ohio statute § 181.24(A)

Oregon “Factors relevant to appropriate sentencing include . . . effective capacity of state

and local corrections facilities and other sentencing sanctions available.” Enabling

legislation, cited in Bogan, K.M. “Constructing Felony Sentencing Guidelines in an

Already Crowded State: Oregon Breaks New Ground.” Crime and Delinquency

36(4)(1990), pp. 467–487.

Tennessee “The sentencing commission shall include with each set of guidelines a statement of

its estimate of the effect of the guidelines on the Department of Corrections both in

terms of economic resources and inmate population.” Tennessee Sentencing Commission Act of 1986

U.S. Federal “The Commission . . . shall take into account the nature and capacity of the penal,

System correctional and other facilities and services available, and shall make recommendations concerning any change or expansion in the nature or capacity of such facilities

. . . as a result of guidelines . . . the sentencing guidelines prescribed under this

chapter shall be formulated to minimize the likelihood that the federal prison population will exceed the capacity of the federal prisons . . . .” U.S. Code Title 289 Ch. 58

§ 994(g)

State Quotation
 45

Monograph

State Quotation

Utah “[One] purpose of the commission shall be to . . . relate sentencing practices to

correctional resources . . . .” Utah code annotated 1953 Section 63–89–4; 1993

Washington “While the commission need not consider [correctional] capacity in arriving at its

recommendations, the commission shall project whether the implementation of its

recommendations would result in exceeding such capacity: if . . . result would

probably occur, then the commission shall prepare an additional list of standard

sentences which shall be consistent with such capacity.” Washington Sentencing

Reform Act of 1981, 9.94A, subsection 6

19. Griset, P. Determinate Sentencing: The Promise and the Reality of Retributive Justice.

Albany: State University of New York Press. 1991.

Table 4–3 Legislative Direction Regarding Consideration of Prison Capacity (continued)

Method of Adoption

The method of adopting guidelines is important because it defines the final

author of the guidelines and how strictly the guidelines are to be applied.

There are three basic approaches to adopting guidelines. The first approach

entails creating a commission mandated to draft guidelines that must be

submitted in bill form to the legislature. For example, in Washington the

legislature may adopt the guidelines as submitted, reject them, or amend

them.

The second approach is to delegate the commission to write the guidelines

that become law even without further action on the part of the legislature.

For example, in Pennsylvania 90 days after guidelines are submitted to the

legislature, they become law unless a concurrent resolution to reject is

passed.

A third approach is the use of administrative rules or administrative order.

Wisconsin’s guidelines, enabled in bill form and legislated, are adopted

through administrative rules, promulgated by the commission, and approved

by the legislature. Delaware’s guidelines, however, are issued by an administrative order from the Supreme Court.

Each approach has advantages and disadvantages. Guidelines legislatively

passed in bill form become law and obtain the standing of law. The major

concern with such a process is that the legislature will either fail to act on

the bill or will amend it during its passage. For example, New York’s sentencing commission’s guidelines were submitted in bill form but were never

passed by the legislature; the commission’s funding was eventually discontinued, causing its dissolution. 19 Some blame such failures primarily on the
46

Bureau of Justice Assistance

commission’s inability to obtain commitment to its guidelines. 20 More recently,

Tonry has recognized the political problems facing commissions. 21

The political advantages of legislatively enacted guidelines result from the

explicit support of the legislature and the governor as an outgrowth of direct

legislative action. Legislative enactment dissolves any constitutional concerns

such as those involving judicial participation in a legislative body (as in

Pennsylvania) or delegation of authority by the Congress to a commission

whose members are all appointed by the President (as in USSC). 22 Furthermore, appellate courts reviewing sentencing under legislatively adopted

guidelines may be more likely to review sentences on substantive (and

not just procedural) issues, although this is not yet established. 23

By contrast, under the “adopted unless rejected” approach such as exists

in Pennsylvania, guidelines are enacted by the legislature’s failure to reject

them. Although such commissions are delegated much more power, the

guidelines may have less standing under appellate review, and there may be

constitutional concerns with legislative delegation to a commission whose

members come from the judiciary and are appointed by the governor.

Implementation through administrative rules or orders also has advantages

and disadvantages. Delaware, a State whose guidelines are issued through

administrative order by its Supreme Court, finds that this process allows

substantial flexibility. Implementation of and amendments to any recommendations are possible within a relatively short time, and amendments are not

as likely to be rejected or altered by the Supreme Court. However, sentences

imposed under guidelines issued by administrative order generally are not

appealable; the guidelines are therefore merely voluntary.

The choice as to which model to follow may reflect the willingness of legislatures to delegate authority and/or to become more significantly involved in

establishing sentences. North Carolina, whose guidelines are submitted in bill

form, has a tradition of strong legislative control. Its legislature was averse

to delegating broad-based power to the sentencing commission. 24 However,

legislative enactment risks the passage of amendments to the guidelines or

failure to implement them. In New York, the legislature thwarted the guideline movement by failing to pass proposed guidelines. 25 Such occurrences are

rare but demonstrate the risks involved in requiring legislative enactment.

20. Note 7.

21. Tonry, M. “Structured Sentencing.” In Crime and Justice: A Review of the Research, vol. 10,

ed. M. Tonry and N. Morris. Chicago: University of Chicago Press. 1988.

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

23. Del Sole, J. “Appellate Review in a Sentencing Guidelines Jurisdiction: The Pennsylvania

Experience.” Duquesne Law Review 31(1993), pp. 419–504.

24. Note 8.

25. Note 7.

The political advantages of legislatively

enacted guidelines

result from the

explicit support of the

legislature and the

governor . . .
 47

Monograph

The most common approach is to require the adoption of guidelines in bill

form (Table 4–4). It should be noted that Florida moved from a “failure to

reject” approach to legislatively adopting its guidelines. The State of Washington, on the other hand, has researched changing its approach from legislative

adoption to the failure to reject approach.

Financial Support

Strong legal and broad-based political support are important aspects of the

ability of a sentencing commission to write guidelines. However, it is essential

that adequate financial support be obtained for a commission to study past

sentencing practices in the State; study what other States have accomplished;

prepare reports and proposals for the commission to consider; pay for the

commission to meet regularly and hire consultants when necessary; provide

State Mode of Adoption

Arkansas Legislative mandate and adoption of guidelines in bill form

Delaware Administrative order from Supreme Court

Florida Legislative mandate and adoption in bill form (new, 1994)

Legislature may reject by concurrent resolution (old, 1983)

Kansas Legislative mandate, guidelines adopted in bill form

Louisiana Legislative mandate, promulgated as administrative rules

Michigan Judicial direction, development, and endorsement (but recent legislative mandate for

new guidelines)

Minnesota Legislative mandate, legislature may reject by resolution

North Carolina Legislative mandate and adoption in bill form

Ohio Legislative mandate and adoption (in process)

Oregon Criminal Justice Council promulgates guidelines as administrative rules, legislature may

reject or amend by resolution

Pennsylvania Legislature may reject by concurrent resolution within 90 days

Tennessee Legislative mandate and adoption in bill form, as part of criminal code

U.S. Federal Legislative mandate for commission promulgated guidelines as administrative rules,

System legislature may reject by resolution

Utah Legislative mandate and adoption (guideline redevelopment in process) in bill form

Washington Legislative mandate and adoption in bill form

Wisconsin Legislative mandate and promulgation by administrative rule

Table 4–4 Examples of Modes of Sentencing Guidelines Adoption
48

Bureau of Justice Assistance

ongoing feedback to the court and other governmental agencies; monitor and

evaluate the impact of guidelines; and conduct other basic

and applied research on a large variety of sentencing issues.

Cost varies considerably among States, depending on commission needs.

The annual costs for States range between $250,000 and $650,000. If insufficient resources are provided for a commission’s work, the risk of failure

increases. The commission needs independence to hire adequate staff, to

pay for travel, and to support other basic functions and activities. It is crucial

that the commission’s ongoing functions of monitoring guidelines, revising

guidelines, and assessing the impact of legislation and other functions taken

on as part of its sentencing function be fully considered and that adequate

funding be provided.

As a side note, a number of commissions that have successfully implemented

guidelines have realized increases in budget and in staff size in the postimplementation years. These increases are the result of continually increasing

responsibilities placed on the commissions by the legislature and the cost of

monitoring and evaluating guidelines.

Commission Support Staff Organization

The size and composition of staffs supporting the work of sentencing

commissions is relatively similar among States. USSC is the one exception

to this rule. In 1991 USSC had 100 full-time staff and an appropriation close to

$8.5 million. State sentencing commissions have implemented guidelines

systems with 3 to 22 full-time staff members. Most States have had between

five and seven full-time staff members during guideline development and

implementation stages. Washington and Pennsylvania initially had five fulltime and one half-time staff members, and Minnesota had seven. More recently, North Carolina has been operating with a staff of seven.

Staff composition in the States has been heavily weighted toward social

science researchers. 26 Staffs are generally composed of an executive director,

a policy director, a research director, an administrative assistant, and a secretary. Additionally, States have hired research associates (usually at least one

with statistical experience) and data coders/input operators to supplement

research efforts.

Generally, commission staffs can be called upon to perform any of the following functions: designing and implementing a data collection system; providing

information on the status of sentencing patterns; projecting the impact of any

changes that guidelines might have on current trends; drafting guideline

policies; monitoring appellate court decisions; conducting training and education seminars related to the guidelines; answering questions over the tele26. Knapp, K. “Allocations of Discretion and Accountability Within Sentencing Structures.”

Colorado Law Review 64(1993), pp. 679–705.
 49

Monograph

phone on guideline application issues; and preparing meeting materials for

the commission. Typically, at least one staff member maintains regular contact

with legislators and legislative staff members.

Commission Meetings

The frequency with which commissions meet varies among States. In the

initial stages of guidelines development, meetings are held much more

frequently than after implementation. In fact, it is not uncommon in the early

drafting stages for commission members to spend evenings, weekends, and

multiple days per week in meetings.

Some States have defined the minimum frequency for meetings in their enabling legislation. For example, in Arkansas and Pennsylvania, the enabling

legislation dictates that the commission meet at least quarterly. After the initial

stages, some States have regularly scheduled meetings. For example, the State

of Washington has scheduled standing meetings for the full commission for

the second Friday of the month; to cancel these meetings, they must be taken

off the schedule.

Adequate travel funds must be budgeted to support the frequent meetings

and overnight stays required for a commission to meet its deadlines.

Guideline Implementation

The power of a commission to implement and monitor sentencing varies

according to its enabling legislation. However, the enabling legislation should

give a commission the authority to train judges, prosecuting attorneys, defense attorneys, probation officers, and others in the sentencing process.

Strong enabling legislation also authorizes commissions to establish statistical

monitoring systems. A statistical monitoring system allows a commission to

assess the impact and quality of guideline implementation and to identify

areas that need revision. For example, a commission may depend on the

courts to accurately interpret the guidelines and to review justifications for

departures from the guidelines. ABA standards state that the commission

“should also be charged with responsibility to collect, evaluate and disseminate information regarding sentences imposed and carried out within the

jurisdiction.” 27

Guideline Enforcement

The presumptiveness of guidelines ultimately stems from the process

by which sentences are reviewed. Without an enforcement mechanism,

guidelines are merely voluntary and so may have little impact on changing

sentencing practices. The common procedure is to provide for appellate

27. American Bar Association. Standards for Criminal Justice—Sentencing Alternatives and

Procedures. 3d ed. Boston: Little, Brown & Company. 1993, p. 5.
50

Bureau of Justice Assistance

review, with the review to be initiated by either the defense or the

prosecution.

The term “presumptive” is often used to describe guideline systems that

rely on appellate review as an enforcement mechanism. Guidelines (such

as those for Arkansas) that allow for no review are referred to as voluntary:

The guidelines must be considered, but judges are free to depart without

challenge. Rather than a dichotomy, this situation is more of a continuum

from voluntary to very presumptive. The degree of presumptiveness is based

on whether some form of appellate review exists and, if so, what standards

the courts are held to on appellate review.

Little research on or discussion of this issue has occurred, despite the hope

that guidelines would stimulate a common law of sentencing. However, the

works of McCloskey 28 and Del Sole29 offer some information. The least presumptive (voluntary) form of guidelines would resemble the guidelines of

Arkansas and Virginia, which do not allow appellate review of sentences.

In States with some form of review, two factors affect the presumptiveness of

guidelines. One of the most significant factors is the standard for departure

that is established in the statutory mandate. Enabling legislation might specify

“unreasonable” sentences as those that warrant a judge’s departure from

sentencing guidelines, as in Pennsylvania; or legislation might define a much

higher standard, such as “clear and convincing” reasons for departure, as in

Minnesota. The second factor is the interpretation that the appellate courts

place on the terms. Obviously, the higher the standard, the greater the likelihood that the appellate courts will hold the lower court more accountable for

departures. Similarly, the lower the standard, the greater the likelihood that

the appellate court will allow greater latitude in departures from guidelines.

During the 12 years that the Minnesota and Pennsylvania guidelines have

been in effect, significant differences in how appellate courts review guideline

cases have arisen. A comparison of the appellate review process in Minnesota

and Pennsylvania concluded that the Minnesota appellate courts substantively

reviewed sentences for the quality of the sentencing decision in reducing

disparity. Pennsylvania’s appellate courts, on the other hand, established a

procedural appellate review approach that merely asks whether the trial court

followed the proper procedures in applying the guidelines. 30 (See Table 4–5.)

In part, enforcement determines the presumptiveness of the guidelines.

Voluntary guidelines and those without some explicit enforcement mechanisms, like the guidelines of Michigan and Virginia, are generally considered

28. McCloskey, J. “The Effectiveness of Independent Sentencing Commission Guidelines:

An Analysis of Appellate Court Decisions in Two Jurisdictions.” Paper presented at the

annual meeting of the American Society of Criminology, San Diego. 1985.

29. Note 23.

30. Note 23. See also Note 28.

The term “presumptive”

is often used to

describe guideline

systems that rely on

appellate review as

an enforcement

mechanism.
 51

Monograph

 Appellate

State Review Standard

Delaware No “ . . . Substantial and compelling reasons justifying an exceptional sentence”

must exist. (Delaware Sentencing Accountability Commission. Bench Book

1991, p. 49)

Florida Yes “Failure of a trial court to impose a sentence within the sentencing guidelines is subject to appellate review. . . . A court may impose a departure

sentence . . . based upon circumstances or factors which reasonably justify

the aggravation or mitigation of the sentence.” (Laws of Florida Ch. 93–406,

Section 924.06)

Kansas Yes “The appropriate review standard for a departure sentence is whether

there are substantial and compelling reasons for the departure.” (Kansas

Sentencing Guidelines Manual 1993, p. 32)

Louisiana Yes “No sentence shall be declared unlawful, inadequate, or excessive solely

due to the failure of the court to impose a sentence in conformity with the

sentencing guidelines . . .” (Louisiana revised statutes, art. 15:321–329,

1987)

Minnesota Yes Appellate review can determine “ . . . whether the sentence is inconsistent

with statutory requirements, unreasonable, inappropriate, excessive,

unjustifiably disparate, or not warranted by the findings of fact . . .”(Laws

of Minnesota 1978 CA. 723 sec. 244.11)

North Carolina Yes Both the defendant and the state may appeal if the sentence results from an

incorrect finding of the defendant's prior record level or contains a sentence

disposition of length not authorized by the structured sentencing law. This

defense may appeal whether a sentence imposed outside the presumptive

range (within the aggravated range) is supported by the evidence. The state

may appeal whether a finding of “extraordinary mitigation” is supported by

the evidence or is sufficient as a matter of law. See G.S. § 15A–1415(b), §

15A–1441, § 15A–1444, and § 15A–1445.

Ohio Yes “The court of appeals may (remand or overturn) the sentence if any of the

following clearly and convincingly appears: The sentence if (1) not supported

by sufficient evidence; (2) substantially inconsistent with sentences imposed

upon other defendants with similar characteristics who have committed

similar offenses; (3) the sentence is not reasonably calculated . . . ; (4) the

sentence violates the sentencing principles stated in (statute) . . . ; and (5)

the sentence is contrary to law.” (Ohio revised codes § 2929,19(G))

Oregon Yes “. . . Substantial and compelling reasons” must be present to warrant

departure from guidelines. (Oregon Criminal Justice Council (O.C.J.C.),

1989 Oregon Sentencing Guidelines Manual)

Table 4–5 Appellate Review and Standards for Overturn of Sentence for Selected

States
52

Bureau of Justice Assistance

Pennsylvania Yes The appellate court shall vacate the sentence and remand the case to the

sentencing court with instructions if it finds:

1. The sentencing court purported to sentence within the sentencing

guidelines but applied the guidelines erroneously.

2. The sentencing court sentenced within the sentencing guidelines but

the case involves circumstances where the application of the guidelines

would be clearly unreasonable.

3. The sentencing court sentenced outside the sentencing guidelines

and the sentence is unreasonable.

In all their cases the appellate court shall affirm the sentence imposed by

the sentence court. (Title 42 Pa.C.S. § 9781)

Tennessee Yes “The court may vary from the presumptive sentence if there are either

mitigating or aggravating factors . . . the court must place on the record,

either orally or in writing, the enhancing and mitigating factors found.”

(Tennessee Sentencing Commission, 1990, Sentencing in Tennessee, p. 9)

U.S. Federal System Yes “Court of appeals shall determine whether . . . [the departure sentence] is

unreasonable . . . ” In light of the factors to be considered at sentencing by

statute and the facts of the case [18 U.S.C., Ch. 235 § 3742 (e)]

Washington Yes “To reverse a sentence which is outside the sentence range, the . . . court

must find: (A) either that the reasons supplied by the sentencing judge are

not supported by the record which was before the judge or that those

reasons do not justify a sentence outside the standard range for that offered,

[or] (B) [the] sentence imposed was clearly excessive or . . . too lenient”

(Washington Sentencing Reform Act of 1981, Chapter 9.94A.210)

Wisconsin Yes (limited) If the court does not impose a sentence in accord with the recommendations

in the guidelines, the court shall state on the record its reasons for deviating

from the guidelines. There shall be no right to appeal on the basis of the trial

court's decision to render a sentence that does not fall within the sentencing

guidelines.

 Appellate

State Review Standard

voluntary: judges are expected to consider them, but there is no appellate

review if the judges do not conform to them. On the other hand, guidelines

such as those of Pennsylvania, which have a relatively low standard under

appellate review, are less presumptive than the Minnesota guidelines with

the appellate standard of clear and convincing.

Sentencing guidelines constrain judicial discretion to consider various factors

and to determine the specific sentence. The jurisdictions having sentencing

Table 4–5 Appellate Review and Standards for Overturn of Sentence for Selected

States (continued)
 53

Monograph

guidelines approach the standards to depart from the guidelines differently.

Some have left that issue to the enabling legislation. Other commissions took

the initiative and established their own standards. Minnesota’s commission,

for example, established the standard of clear and convincing evidence to

depart from the guidelines. Similarly, Oregon’s commission articulated a

substantial and compelling standard for departures.

North Carolina took a somewhat different approach. North Carolina’s guidelines provide a standard range and a range of sentences for aggravating and

mitigating circumstances. The guidelines provide for three types of penalties:

active punishment, which is a sentence in the State prison system; intermediate punishment, including residential facilities, electronic house arrest, or

intensive supervision; and community punishment, which is supervised or

unsupervised probation that may include outpatient treatment, treatment

alternatives to street crime, community service, restitution, or fines. If the

guidelines call for an active prison sentence, the court may impose intermediate punishment, but only when it is found “that extraordinary mitigating

factors of a kind significantly greater than the normal case exist and that

they substantially outweigh any factors in aggravation.” 31 The effect of this

approach in North Carolina is to draw a firmer line around the active prison

sentence, increasing the likelihood that the guidelines will result in the

incarceration of more serious violent offenders, as intended. Presumptiveness is important to a State’s ability to project prison populations.

Enforcement and presumptiveness of sentencing guidelines are important

considerations for a legislature when creating a commission. The more

presumptive the guidelines, the greater the confidence that the guidelines

will control judicial discretion and achieve the goals of the legislation,

including controlling prison populations. The more constraints imposed

on judges by the guideline ranges, the more predictive are the State’s prison

populations. Moreover, the more presumptive the guidelines, the stronger

the argument that mandatory penalties are not necessary. On the other hand,

the more presumptive the guidelines, the higher the risk that the “invisible

side” of criminal justice will become greater, with prosecutors bargaining

on charges or prior records to avoid the commission’s guideline range in

favor of the local criminal justice culture’s range. 32 This issue is complex and

lacks a clear-cut best policy. However, it is a policy issue that drafters of

guideline-enabling legislation need to consider as they write the enabling

legislation.

31. North Carolina Sentencing and Policy Advisory Commission. Report of the 1993 Session for

the General Assembly of North Carolina. Raleigh, 1993, p. 15.

32. Savelsberg, J. “Law That Does Not Fit Society: Sentencing Guidelines as a Neoclassical

Reaction to the Dilemmas of Substantivized Law.” American Journal of Sociology

97(s)(1992), pp. 1346–1381.

Enforcement and

presumptiveness of

sentencing guidelines

are important considerations for a legislature

when creating a

commission.
54

Bureau of Justice Assistance

Political and Legal Context

Reform efforts build on existing political and legal structures. The more

successful national efforts consider the political environment and grant their

commissions the power and resources to fulfill their responsibilities. However, a State’s statutory structure may not be conducive to building sentencing guidelines. With States consolidating their criminal statutes into broadly

defined offenses over the past century, the imposition of sentencing guidelines exacerbates the problem of reducing disparity. Realizing this fact, Tennessee officials had their sentencing commission undertake the complex

task of revising the criminal code.

The criminal justice system brings together local and State agencies. The

success of State guideline systems may well rest on the willingness of courts

to implement the guidelines as intended.33 This process may seem simple:

adopt guidelines, and they will be implemented. Foresight, planning, careful

coordination to ensure the quality of sentencing guidelines, and consideration

of those who must implement them are crucial to success. In fact, these

factors should be evaluated and considered as early as possible in the drafting

of the enabling legislation.

Expectation of criminal justice reforms must not be too high. Eisenstein and

colleagues conclude from their study of court communities in three States

that “implementation of reform is not perfect.” 34 The court community resists

change being imposed upon it. Guidelines are viewed as attempts to change

the “going rates” for particular offenses. These guideline rates may not be

consistent with the rates that have been developed in the local court.

While local going rates are not always invariant, going rates provide rewards

to the court community. Going rates fulfill a sense of justice, are efficient, and

are effective. In fact, Eisenstein and colleagues conclude from their research

that the “more radical a proposed change the less likely is its adoption.” 35 This

conclusion is contradicted by the Spohn and Horney study of legal reforms of

rape laws, which found that the more significant the reform, the more likely it

is to affect court behavior. 36 Research is contradictory, and each State must

determine how best to approach the problem, depending on the relative

33. Local courts have been studied in detail. One of the overwhelming findings is the role

played by informal norms in guiding local courts and the extent to which these norms vary

across jurisdictions within a particular State. See also Notes 23 and 28.

34. Eisenstein, J., R.B. Flemming, and P.F. Nardulli. Contours of Justice: Communities and Their

Courts. Boston: Little, Brown & Company. 1988, p. 296. See also Nardulli, P., R. Flemming,

and J. Eisenstein. The Tenor of Justice: Criminal Courts and the Guilty Plea Process.

Chicago: University of Illinois Press. 1988.

35. Note 34, p. 294.

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

New York: Plenum. 1992.

Foresight, planning,

careful coordination to

ensure the quality of

sentencing guidelines,

and consideration of

those who must implement them are crucial

to success.
 55

Monograph

autonomy of judges and the political context. Each State must, however,

thoroughly consider the implementation of its guidelines if it is to meet its

goals.

Ongoing Monitoring of the Guidelines

Resistance to reform parallels the resistance noted in the organizational

literature, which suggests that participation in the development and implementation of guideline reforms by those who must implement the changes

increases the likelihood of change.

Sentencing reforms frequently demonstrate immediate changes, only to have

practices quickly return to prereform levels. 37 One reason for this phenomenon is that the initial attention and publicity surrounding a new law diminish, with the behavior of offender and system returning to prereform patterns.

Another reason is that the changes are often mandated by a State agency. If

the State agency fails to obtain the commitment to address the practical

concerns of local officials who must implement the reform, then there is little

chance of sustained effect.

It should be emphasized that the participation of those who must implement

the reforms is crucial; the implementation and monitoring are also necessary

to sustain the reforms. Even with these systems in place, Minnesota’s guideline system experienced backsliding (although not to preguideline levels)

during the second and third years after implementation. 38

Local Court Culture

Although guideline systems are intended to structure discretion, local practitioners may undermine the implementation of the guidelines if they disagree

with the concept of a guideline system. For example, trying to change the

sentencing practices for offenses on the basis of the offense of conviction

may result not in changes in sentencing, but in a shift in prosecutorial practices to “adjust” to the intended change, keeping the end result the same. An

effective guideline system requires the enabling legislation and the guideline

advocates to consider the local legal culture and how guidelines could fit into

that culture.

Defining the stakeholders and including them in the development of the

guidelines facilitate acceptance. Their involvement is important in the early

stages of development because the creators of the guidelines often take

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

38. Miethe, T.D., and C.A. Moore. Sentencing Guidelines: Their Effect in Minnesota. Washington, DC: U.S. Department of Justice, Office of Justice Programs, National Institute of

Justice. April 1989. See also Stolzenberg, L., and S.J. D’Alessio. “Sentencing and Unwarranted Disparity: An Empirical Assessment of the Long-Term Impact of Sentencing

Guidelines in Minnesota.” Criminology 32(2)(1994), pp. 301–310.

An effective guideline

system . . . consider[s]

the local legal culture

and how guidelines

could fit into the culture.
56

Bureau of Justice Assistance

ownership of the project, serving as educators and marketers of the guidelines. According to a former executive director of the Washington State

Guidelines Commission, serious thought should be given to maintaining

the continued involvement of stakeholders and obtaining commitment

from new stakeholders as positions turn over. 39

Furthermore, if change requires financial investment by local government,

resistance by county commissioners or local government officials should be

anticipated. One way to obtain increased commitment from local courts is to

include members of local criminal justice systems on the commission. Soliciting and carefully considering local input for the guideline writing process

enhance the potential for guidelines to fulfill their goals. Broad-based support

generated during the writing of the guidelines enhances a commission’s

ability to obtain acceptance and ensure smooth implementation.

Political Acceptance

The political acceptability of guidelines should also be considered when a

sentencing commission is being created. The credibility of the commission

and the acceptability of its guidelines are diminished when only minimal

support exists for commission goals or when a commission is established

solely to forestall other agendas. 40 Little research has been done on the

political context of sentencing guidelines. 41 However, commissions have

struggled to gain acceptance for guidelines where there is little commitment

to values such as truth in sentencing, reducing discretion, conducting appellate review of sentences, or controlling prison populations. A commission,

once created, can help generate support for itself; however, the experiences

of New York and South Carolina—where commissions have been unsuccessful—indicate that this may not be adequate.

A relatively new approach to politics and sentencing is the 1994 Oregon

referendum on sentencing. In its 1994 election, Oregon passed referendums

that significantly affect State sentencing guidelines. These referendums established mandatory minimum sentences for a wide range of offenses, including

robbery, assault, murder, and rape. Staff at the Oregon Sentencing Guideline

Commission have indicated that the mandatory sentence would apply to

approximately 1,200 offenders. Previous sentencing practices under the

guidelines sent 61 percent of the offenders to prison and passed alternative

sentences on 39 percent. Mandatory sentencing provisions also increase the

39. Lieb, R. “Washington Prison Population Growth Out of Control.” Overcrowded Times

4(1)(1993), pp. 1, 13–14, 20.

40. Note 7.

41. See Note 19 for exceptions to this. See also Kramer, J., and J. McCloskey. “The Role of

Political Pressure in Developing Sentencing Guidelines for Drug Offenses.” Paper presented

at the 1988 annual meeting of the Academy of Criminal Justice Sciences, San Francisco.

1988.

The political

acceptability of

guidelines should also

be considered when a

sentencing commission

is being created.
 57

Monograph

length of incarceration. For example, the average incarceration sentence for

the type of robbery covered under the referendum is 57 months, but the

new mandatory sentence will be 90 months. Furthermore, the ballot measure

established that juveniles committing specific crimes will be remanded to the

adult justice system. This measure will obviously have a significant impact on

the courts as well as on the correctional system.

Summary

This chapter has reviewed the context and authority of the commission on

sentencing guidelines. In general, successful commissions were created in

supportive environments and were given strong legislative mandates. They

were also provided with funding adequate to hire experienced staff and to

meet regularly. These factors contributed to—although they did not ensure—

success. Legislatures have developed various approaches for designing and

implementing their guidelines. The perceived problems of sentencing differ

according to the perspective of the observer.

Almost all States have adopted sentencing guidelines to impose some constraints on unfettered discretion; some States also wish to increase certainty

and predictability. Other States aim to reduce prison overcrowding and

increase truth in sentencing.

Both State and local legal culture and the political environment are important

to consider in the implementation of a State’s guidelines. For example, sentencing guidelines may be politically overwhelming at one time, but as prison

overcrowding reaches crisis levels or results in court-ordered constraints, their

political acceptability may increase. At some point, the pressure of crowding

and the financial cost of new constructions to accommodate rising prison

populations may become overwhelming.

One issue that should not be ignored is that the sentencing decision will be

subjected to scrutiny, requiring a commitment to develop coherent sentencing

policy. Research indicates that legislatures that have started this process have

learned from it. However, with several States failing to implement sentencing

guidelines, the pitfalls of the process become obvious, and a State may decide not to effect change. Nonetheless, in almost all jurisdictions, the sentencing commissions and their guidelines have flourished, despite diverse mandates and different approaches to writing sentencing guidelines.
58

Bureau of Justice Assistance
 59

Monograph

Asentencing commission must immediately confront the difficult task

of writing guidelines. Sentencing is a complex issue, involving the

community, the courts, and the purpose(s) to be accomplished through the

sentence. Many critics will question whether the sentence was appropriate,

whether it can protect the public, or whether it can rehabilitate the offender.

Despite the difficulty, many commissions have written, adopted, and implemented guidelines. This chapter describes this complex decisionmaking

process.

The writing of sentencing guidelines requires the sentencing commission to

determine what factors should be considered for the guidelines; how the

factors are to be measured in applying the guidelines so that they are reliably

applied by the court; and which sentences can be applied on the basis of

those factors. The descriptive approach looks at past sentencing practices,

identifies the factors that judges have used in the past, and, after eliminating

inappropriate factors such as race and gender, incorporates them into the

guidelines. The in/out and sentence-length decisions are based primarily

on the measurable factors deemed substantively important and statistically

significant in past sentencing practices.

In the prescriptive approach, the commission relies more on its own judgment

in determining the factors for consideration in sentencing. In reality, sentencing commissions use data on past sentencing practices to guide their decisions even if they adopt the prescriptive approach. Past practices are generally used to determine the impact of the proposed changes and to test how

the views of the commission members may compare with the actual sentencing practices of the judiciary. Although past practices may be used as a

guidepost, they do not limit the commission’s ability to change the guideline

recommendation from previous sentencing practices.

There are certain consistencies as well as key differences among the States

that have written sentencing guidelines. States consistently identify the seriousness of the current offense and a defendant’s prior record as the two

major factors to be considered in sentencing. However, guideline systems

vary considerably in incorporation of these factors. All States assess the

seriousness of the conviction offense; however, Florida has separate guidelines for each general category, while Minnesota, Oregon, and Washington

Writing Sentencing Guidelines

Chapter 5
60

Bureau of Justice Assistance

rank all offenses on a single scale of seriousness. The result is that Florida

works with several different matrices, while Minnesota, Washington, and

Oregon each work with one matrix.

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

Offense Seriousness

All States with sentencing guidelines employ offense seriousness as the primary factor to be considered in recommending sentences. However, some

jurisdictions may measure an offense according to likelihood of relapse, as

is often done in parole guidelines. If a sentencing guideline system adopted

the prediction of recidivism as its major purpose, then ranking of the current offense would differ significantly from a measure targeting the most

serious offenses. For example, murder is always the most serious offense

when offenses are ranked by severity. However, when offenses are ranked

by likelihood of relapse, murder would rank low because murderers have a

relatively low risk of relapse. Theft offenders are more likely to relapse and

therefore rank high on a risk measurement scale.

Sentencing commissions have unanimously determined that offense rankings

should rest on the seriousness of the offense and not on the risk of recidivism. One of the foundations for sentencing guidelines, then, is apparently

focused on a retributive, or just deserts, model that determines penalties

relative to the severity of the offense.

Table 5–1 presents an overview of the factors considered in most systems

of sentencing guidelines and the number of categories for each State’s measure of offense seriousness and criminal history. It should be noted that

some State statutes are very specific regarding bodily injury and use of weapons so the guidelines need no special enhancements to take these offenses

into consideration. The table oversimplifies some guideline systems, such as

that of Wisconsin, which has many different matrices and varies the number

of criminal history categories depending on the offense matrix. The methods

for ranking offense severity range from reliance on statutory grading to the

use of social science scaling techniques. Most States begin with the offense

classification used in statutes and then make finer distinctions within those

grades. For example, Pennsylvania has three statutory grades for felonies and

three statutory grades for misdemeanors. The commission made distinctions

beyond the statutory classifications; the initial guidelines contained 10 categories measuring offense seriousness. Oregon and Pennsylvania subcategorized

offenses so that the guideline measure of offense seriousness more closely

reflected the severity of the crime. 1

1. Blumstein, A., J. Cohen, S.E. Martin, and M.H. Tonry (eds). Research on Sentencing: The

Search for Reform. Washington, DC: National Academy Press. 1983. See also Bogan, K.M.

“Constructing Felony Sentencing Guidelines in an Already Crowded State: Oregon Breaks

New Ground.” Crime and Delinquency 36(4)(1990), pp. 467–487.

Sentencing

commissions have

unanimously determined that offense

rankings should rest on

the seriousness of the

offense and not on the

risk of recidivism.
 61

Monograph

Table 5–1 Overview of Guideline Sentencing Structures

State Offense Factors Enhancements Criminal History

# of Convicted Multiple Articu- Weapons Drugs Degree of # of Convictions Length Weigh- CorrecCate- Offense Convictions lated Injury Cate- of Prior ing tional

gories Provision Principles gories Sentence Status

AR 10 Y N N N N N 6 Y N Y Y YDE 21* Y Y N N N N 7 Y N Y Y YFL 9** Y Y N N N Y NA§ Y NYY N

KS 10 Y Y Y N N N 9 Y N Y N YMN 10 Y Y N N N N 7 Y Y§§ F/M¤ Y YNC 9 Y Y¤¤ Y NNN 6 Y NYY YOR 11 Y N Y N N N 9 Y N Y NA§ YPA 10 Y N Y Y Y N 7 Y N Y N N

TN 5 Y N N N N N 5 Y N Y N YWA 12 Y Y N Y N N 9 Y N Y N YWI 16 Y N N Y Y Y ≈ Y NYY Y

USSC 43 Y≈≈ Y ≈≈ YYY 6 N YYY Y

Aggravating/

Mitigating

Factors

* Delaware has no matrix.** Not ranked.§ NA, Not applicable.§§ If a misdemeanor sentence is given for a felony conviction, then the offense is counted in criminal history score as a misdemeanor.¤ F/M, Felony/misdemeanor.¤¤ For misdemeanor only.≈ Wisconsin has 18 matrices.≈≈ In general.
62

Bureau of Justice Assistance

Articulated Offense Ranking Principles

Some States developed principles to be used in measuring offense seriousness. In such States the sentencing commission begins the ranking process

by identifying distinguishing factors such as the degree of injury to the victim,

the amount of property loss, and the culpability of the offender. After the

factors are ranked, specific offenses are attached to the rankings. The major

advantage of this approach is that it allows for easy incorporation of newly

created offenses into the rankings and provides a clear rationale to legislators,

judges, and others as to the basis for the rankings. North Carolina, Louisiana,

and Kansas have used this approach in ranking offenses. Table 5–2 presents

North Carolina’s offense ranking principles.

Number of Offense Levels

The numbers of Offense Gravity Score levels generally range between 9

(North Carolina) and 15 (Washington). These numbers contrast with the

United States Sentencing Commission’s (USSC’s) development of 43 categories. Commissions indicate that the number of categories is based on two

goals: keeping the measure simple for implementation purposes and avoiding too few categories to allow for differentiation among the seriousness of

offenses. In addition, States indicate that because the current measures for

ranking offense seriousness still cluster offenses of different levels of seriousness, judges are encouraged to depart from the guidelines when a recommendation is inappropriate for a nontypical offender.

Number of Matrices

Another issue regarding offense measurement is whether a State adopts single

or multiple matrices. Several States such as Florida, Wisconsin, and Kansas

have multiple matrices. The Kansas guidelines contain one matrix for drug

offenses and another for nondrug offenses. Kansas developed a separate

matrix for drug offenses for a number of reasons: the complexity of distinguishing drug amounts and other problems perceived to be peculiar to drug

convictions; the significant proportion (25 percent) of offenses represented

by drug offenses; and the commission’s desire to provide relatively harsh

penalties for drug offenses.

Wisconsin has developed 18 separate matrices so that the offense severity

measure can be tailored to the type of offense. Multiple matrices allow the

guidelines to incorporate additional severity factors, such as use of weapons,

that are viewed as significant for a particular offense.

A problem with the multiple matrix approach is that it may result in no comprehensive system of offense seriousness. For example, the dual matrices of

the Kansas guidelines allow for disproportionality between drug and nondrug

offenses.

. . . because the

current measures for

ranking offense

seriousness still cluster

offenses of different

levels of seriousness,

judges . . . depart from

the guidelines when a

recommendation is

inappropriate for a

nontypical offender.
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Monograph

Table 5–2 Classification Criteria Used by North Carolina in the Ranking of Offense

Seriousness*

Offense

Class Ranking Criteria [Reasonably tends to result or does result in]

A Reserved for first-degree murder

B Serious, debilitating, long-term personal injury

C Serious, long-term personal injury

Serious, long-term, or widespread societal injury

D Serious infringements on property interest that also implicate physical safety

concerns by use of a deadly weapon or an offense involving an occupied

dwelling

E Serious personal injury

F Significant personal injury

Serious societal injury

G Serious property loss: from the person or from the person's dwelling

H Serious property loss:

■ Loss from any structure designed to house or secure any activity or

property

■ Loss occasioned by the taking or removing of property

■ Loss occasioned by breach of trust, formal or informal

Personal injury

Significant societal injury

I Serious property loss: all other felonious property loss

Societal injury

M All other misdemeanors

* Personal injury includes both physical and mental injury. Societal injury includes violations of public morality, judicial or

governmental operations, and/or public order and welfare.

Other States have imitated the matrix approach developed by Minnesota

in 1980 because of its simplicity. (See Table 5–3.) The matrix reads like a

roadmap, with the offense severity measure along one side of the table

and the prior record measure along the other. This approach has received

criticism for oversimplifying the complexity of sentencing, however.

A recent innovation that does not rely on matrices is the Swedish model.

Sweden’s criminal code did not establish numerical guidelines but set forth

principles for the courts to consider in sentencing. 2

 Sentencing in this system

consists of two phases. The court must first assess the seriousness of the
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Bureau of Justice Assistance

* Italicized numbers within the grid denote the range within which a judge may sentence without the sentence being deemed a departure.** 1 year and 1 day.

Criminal History Score

Severity Levels of Conviction Offense 0 1 2 3 4 5 6 or more

I: Unauthorized use of motor vehicle, 12** 12** 12** 13 15 17 19

possession of marijuana 18–20

II: Theft-related crimes ($150–$2,500), 12** 12** 13 15 17 19 21

sale of marijuana 20–22

III: Theft crimes ($150–$2,500) 12** 13 15 17 19 22 25

18–20 21–23 24–26

IV: Burglary—felony intent, receiving stolen 12** 15 18 21 25 32 41

goods ($150–$2,500) 24–26 30–34 37–45

V: Simple robbery 18 23 27 30 38 46 54

29–31 36–40 43–49 50–58

VI: Assault—2d degree 21 26 30 34 44 54 65

33–35 42–46 50–58 60–70

VII: Aggravated robbery 48 58 68 78 88 98 108

44–52 54–62 64–72 74–82 84–92 94–102 104–112

VIII: Assault—1st degree; criminal sexual 86 98 110 122 134 146 158

conduct—1st degree 81–91 93–103 105–115 117–127 129–139 141–151 153–163

IX: Murder—3d degree 150 165 180 195 210 225 240

144–156 159–171 174–186 189–201 204–216 219–231 234–246

X: Murder—2d degree (1st degree murder 306 326 346 366 386 406 426

is excluded from the guidelines by law 299–313 319–333 339–353 359–373 379–393 399–413 419–433

and continues to have a mandatory life

sentence)

Table 5–3 Minnesota Sentencing Guidelines Grid: Presumptive Sentence Lengths in Months*
 65

Monograph

offense on the basis of harmfulness (such as the defendant’s culpability) and

other offense-related factors. Then the court assesses whether the offense

justifies imprisonment or a fine, based on the seriousness of the offense. If a

fine is deemed inappropriate and imprisonment is required, the court determines whether probation is an appropriate alternative to imprisonment.

Again, the criminal code guides this decision.

Young offenders (under the age of 21) require special justification to be

imprisoned. The court is expected to place on probation any offender who

needs treatment. Thus, Sweden’s criminal code favors a logical sequence

of decisionmaking. This model could be applied to various U.S. sentencing

options including probation, the range of intermediate penalties, county

incarceration, boot camp, and State confinement.

Comprehensiveness of Offense Coverage

A significant issue in the measurement of offense severity is whether the

measure integrates felonies and misdemeanors. Most States focus on providing guidelines for felonies; however, such focus may allow the court

to sentence misdemeanor offenders more harshly than felony offenders,

threatening the integrity of the guideline’s attempt to achieve fairness and

proportionality.

However, the decision concerning the breadth of guideline coverage has

important philosophical and practical implications. Because sentencing

commissions are State agencies whose major focus is on State imprisonment,

allowing total discretion for misdemeanors allows county jurisdictions greater

freedom to consider local resources and set a local sentencing standard.

Subclassification of Statutory Definitions

One of the problems facing almost any commission attempting to rank

offense seriousness is that of statutory definitions. Over the past century,

statutes have tended to consolidate a broad range of criminal behaviors under

one statutory definition. 3

 The court is thus provided with extensive discretion

to impose the appropriate sentence for each defendant. The only limit on

the court’s authority for the worst case was the statutory maximum. Once a

commission attaches presumptive guideline sentences to specific offenses,

the breadth of the statutory definitions presents problems for the commission.

For example, assigning a statutory offense a single rank on an offense seriousness scale can be a problem when the behaviors in any particular offense

vary considerably.

2. von Hirsch, A. “Principles for Choosing Sanctions: Sweden’s Proposed Sentencing Statute.”

New England Journal on Criminal and Civil Confinement 13(2)(1987), pp. 171–195. See

also Ashworth, A.J. “Sentencing Reform Structures.” In Crime and Justice: A Review of the

Research, ed. M. Tonry, pp. 188–244. Chicago: University of Chicago Press. 1992.

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

Ballinger. 1979.

One of the problems

facing almost any

commission attempting

to rank offense seriousness is that of statutory

definitions.
66

Bureau of Justice Assistance

Guidelines can address this problem in one of four ways. USSC adjusts the

rank of crimes on the basis of the offender’s behavior. In the USSC approach,

the offense of conviction is the starting point, but the final rank of the offense

is adjusted significantly on the basis of an offender’s conduct, regardless of

whether the conduct was a part of the offense of conviction. This is referred

to as “real offense” or “modified real offense” sentencing.

The court can be allowed wider discretion to cover such circumstances. The

difficulty with this second approach is that it relies on similarity of practices

among judges to avoid significant sentencing disparity, reflected in either

wider ranges in the guideline matrix (such as those in Pennsylvania’s matrix)

or wider discretion to depart for aggravating or mitigating circumstances.

A third approach, used by Oregon and Pennsylvania, is referred to as the

“subcategorization” of offenses to reflect different degrees of severity. For

example, in Pennsylvania all burglaries historically have been classified as

felony 1 offenses (the most serious statutory grading). The Pennsylvania

sentencing commission drafted guidelines that subcategorize the single

statutory burglary into four categories and then recommend different sentences on the basis of whether a residence was burgled and whether someone was present at the time of the burglary. It is significant that Pennsylvania

included a factor that was part of the statutory definition (whether the structure was occupied) and added a real offense factor (type of structure) in its

guidelines. The legislature later created a felony 2 burglary that parallels the

least serious of the burglary subcategories (i.e., nonresidential burglary at

which time no one was present).

A fourth approach, adopted by Florida and Wisconsin, provides specific

guidelines for various offense types. Florida’s original guidelines established

eight offense types and developed special guidelines for each. Although more

complex, this system allows a commission to incorporate factors linked to

particular offenses. Most guideline systems have rejected this model because

of the problems of maintaining proportionality among offenses.

Real Offense Versus Conviction Offense

The sentencing decision generally begins with a focus on the conviction

offense; this focus, however, may result in sentencing disparity, which guidelines aim to prevent. Many debate whether a guideline system appreciably

diminishes disparity when it allows considerable latitude to the prosecutor to

determine the guideline range based on charge bargaining. 4

 An alternative to

4. Alschuler, A.W. “Sentencing Reform and Prosecutional Power: A Critique of Recent

Proposals for ‘Fixed’ and Presumptive Sentencing.” University of Pennsylvania Law Review

126(1978), pp. 550–577. See also Mistretta v. United States 448 U.S. 361 (1989) for a Federal

examination of the issue. See also Savelsberg, J. “Law That Does Not Fit Society: Sentencing Guidelines as a Neoclassical Reaction to the Dilemmas of Substantivized Law.” American Journal of Sociology 97(s)(1992), pp. 1346–1381.

Many debate whether a

guideline system

appreciably diminishes

disparity when it allows

considerable latitude to

the prosecutor to

determine the guideline

range based on charge

bargaining.
 67

Monograph

conviction-based guidelines is real offense sentencing guidelines. 5 No commission has embraced a real offense sentencing guideline system, perhaps

primarily because of the appearance of unfairness. A fairness issue arises

when sentences are based on a defendant’s alleged conduct, which has a

lower burden of proof than what is required to convict an offender. 6

Another concern is that the role of plea bargaining in producing substantive

justice may be undermined if defendants realize that the bargain will not

influence the sentence. 7

 That is, plea bargaining carries perceived advantages.

Guideline States have adopted an offense-of-conviction approach, presuming

that this is the fairest system—although the difficulty presented by plea

bargaining is recognized.

USSC has addressed the issue of plea bargaining by beginning with the

offense of conviction and then adding numerous factors for the court to

consider as enhancements (such as degree of injury to victims, weapon use,

and role in the offense) and as mitigating factors (such as substantial assistance to authorities).

Criminal History

Purpose

Criminal history, or prior record, is the second major consideration in determining guideline sentences, the propriety of which has been hotly debated.

Those who espouse a just desert or retributive philosophy argue that prior

record should play a very limited role or no role in sentencing. 8

 However, all

guideline systems include considerations of criminal history on the widely

accepted premise that prior criminal activity demonstrates increased culpability and perhaps indicates future criminality.

One reason to consider prior record in sentencing is to ensure awareness

of an offender’s increased culpability: A previously convicted offender who

commits another crime has clearly been informed that criminal behavior is

wrong but has relapsed despite such a warning. Another reason for considering prior record is risk assessment, or to predict future criminality. Sentencing

5. Robinson, P.H. “Hybrid Principles for the Distribution of Criminal Sanctions.” Northwestern

Law Review 82(1987), pp. 19–42. See also Note 6.

6. Reitz, K.R. “Sentencing Facts: Travesties of Real-Offense Sentencing.” Stanford Law Review

45(1993), pp. 523–573.

7. Eisenstein, J., and H. Jacob. Felony Justice: An Organizational Approach to Criminal

Courts. Boston: Little, Brown & Company. 1977. See also Nardulli, P., R. Flemming, and

J. Eisenstein. The Tenor of Justice: Criminal Courts and the Guilty Plea Process. Chicago:

University of Illinois Press. 1988.

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

See also Note 3.

. . . the role of plea

bargaining in producing

substantive justice may

be undermined if

defendants realize that

the bargain will not

influence the sentence.
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Bureau of Justice Assistance

commissions have not stated such a purpose of considering prior convictions;

however, sentencing guidelines in the State of Washington weigh offenses

differently depending on the current offense. For example, prior convictions

for burglary count three points each against a current burglary offense, while

prior convictions for murder count only two points.

Measurement of Criminal History

Table 5–1 indicates that most States measure both the number and seriousness of prior convictions and that many States such as Minnesota consider

additional factors such as an offender’s status (e.g., being on probation) at the

time of the current offense. The total number of prior record score categories

varies among the States (e.g., Washington has nine categories and Tennessee

has only five).

The measurement of criminal history for purposes of guideline application

raises many important issues. Among the most significant issues are how

refined such a categorization should be and whether such a measure creates

a typology of offenders. Some States (Minnesota, Washington, and Pennsylvania) have numerical scores that measure the number and seriousness of prior

convictions. Most States with numerical prior record scores weight prior

convictions as Pennsylvania does, with prior felony offenses assigned one,

two, or three points depending on severity. Prior misdemeanors may count

no more than two points in the total prior record score.

Other guideline States (Oregon, Michigan, and Kansas) use descriptive categories that rely less on numerical scores or calculations. Instead, criminal

history categories differentiate types of offenders such as those convicted

of violent crimes and those convicted of multiple felonies (Table 5–4). Such

labels are intended to convey to the court the type of offender. One advantage of this approach is that the prior record categories contain a more homogeneous group of offenders in each criminal history category, increasing the

likelihood that guidelines built on such measures can better reduce unwarranted disparity. For example, in States such as Minnesota and Pennsylvania,

offenders may be violent or nonviolent and yet receive the same prior record

score.

USSC takes a unique approach to scoring and weighing prior convictions.

The Federal guidelines incorporate the severity and length of prior sentences

into the criminal history score. An offender who received a prison term for

a specific conviction would have a higher criminal history score than an

offender who received probation for the same offense. The question of perpetuating past disparity is then raised.

The Federal guidelines

incorporate the severity

and length of prior

sentences into the

criminal history score.
 69

Monograph * In white blocks, numbers are presumptive prison sentences expressed as a range of months. In gray blocks, upper number is the maximum number of custody units that may be imposed; lower number is the maximum number of jail days that may be imposed.

Table 5–4 Oregon Sentencing Guideline Grid

Criminal History Scale*

A: B: C: D: E: F: G: H: I:

Multiple Repeat (2) Single (1) Single Multiple Repeat Signifi- Minor Minor

Crime Seriousness Scale* Felony Felony Felony (1) (4+) (2–3) cant Criminal Misde-

(3+) Person Person w/ Felony Felony Felony Minor Record meanor

Person Offender Felony Person Non- Non- Criminal or No

Offender Nonperson Offender Person Person Record Criminal

Offender Offender Offender Record

11: Murder 225– 196– 178– 149– 149– 135– 129– 122– 120–

269 224 194 177 177 148 134 128 121

10: Manslaughter I, assault I, rape I, arson I 121– 116– 111– 91– 81– 71– 66– 61– 59–

130 120 115 110 90 80 70 65 60

 9: Rape I, assault I, kidnaping I, arson I, burglary I, 66– 61– 56– 51– 46– 41– 39– 37– 34–

robbery I 72 65 60 55 50 45 40 38 36 8: Manslaughter II, sexual abuse I, assault I, rape I, using 41– 35– 29– 27– 25– 23– 21– 19– 16–child in display of sexual conduct, drugs—minors (cult/ 45 40 34 28 26 24 22 20 18manuf/del), comr. prostitution, negligent homicide 7: Extortion, coercion, supplying contraband, escape I 31– 25– 21– 19– 16– 180 180 180 180

36 30 24 20 18 90 90 90 90

 6: Robbery II, assault III, rape III, bribe/receiving, 25– 19– 15– 13– 10– 180 180 180 180intimidation, property crimes (more than $50,000), drug 30 24 18 14 12 90 90 90 90

possession 5: Robbery III, theft by receiving, trafficking stolen vehicles, 15– 13– 11– 9– 6– 180 120 120 120

property crimes ($10,000–$49,000) 16 14 12 10 8 90 60 60 60 4: FTA I, custodial interference II, property crimes 10– 8– 120 120 120 120 120 120 120($5,000–$9,999), drugs–cult/manuf/del 10 9 60 60 60 60 60 60 60 3: Abandoning child, abuse of corpse, criminal nonsupport, 120 120 120 120 120 120 90 90 90

property crimes ($1,000–$4,999) 60 60 60 60 60 60 30 30 30 2: Dealing child pornography, violation of wildlife laws, 90 90 90 90 90 90 90 90 90welfare fraud, property crimes ($1,000–$4,999) 30 30 30 30 30 30 30 30 30 1: Altering firearm 10, habitual offender violation, bigamy, 90 90 90 90 90 90 90 90 90paramilitary activity, drugs—possession 30 30 30 30 30 30 30 30 30
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Juvenile Adjudications

One matter concerning measurements of prior record scores is whether to

consider juvenile adjudications and, if so, to what extent. Some would argue

that an offender entering adulthood should have a clean slate and that juvenile adjudications should not count. This position rests in part on the more

informal process of the juvenile court and its emphasis on a juvenile’s welfare

and treatment. Moreover, it is argued that the juvenile court uses a lower

standard for a finding of guilt than does the adult court. It has also been

argued that juvenile records are less reliable than adult records across counties and that this inconsistency results in disparity in guideline systems relying

on juvenile records. Some jurisdictions such as Pennsylvania, however, have

noted an improvement in juvenile recordkeeping as a result of the incorporation of juvenile adjudications into their guidelines.

Most States include juvenile adjudications in the measurement of prior

records. An individual with a prior record has increased culpability, which

is a justification used for including prior adult convictions. Juvenile records

might also be important as assessments of offender risk of future criminality,

although no State visited by researchers argued that guidelines created the

prior record score as a predictive instrument.

Lapsing of Prior Convictions

Another issue raised in measuring criminal history is whether to lapse or

expunge records of prior convictions after an offender remains crime free

for some period of time. Several States, such as Minnesota and Washington,

omit prior convictions after a specified number of years, whereas other States,

such as Pennsylvania and Oregon, do not.

Two basic arguments have been offered in favor of lapsing prior records.

First, a long period of crime-free behavior may indicate diminished culpability/blameworthiness. Second, a long crime-free period may indicate that an

old prior record has less value in predicting future criminality.

Others, such as members of the Oregon and Pennsylvania sentencing commissions, argue that although the age at the time of a prior offense may be

a mitigating factor, the principle of truth in sentencing demands that judges

have information on all prior convictions at the time of sentencing.

States that include juvenile adjudications in their guidelines almost always

have a lapsing provision. For example, Minnesota lapses adjudications at

age 21, Florida at age 23, and Maryland at age 25. Kansas lapses juveniles

adjudications at age 25, except for serious personal offenses.

Prior Record and Disparity

Sentencing disparity is one significant issue for sentencing guideline systems.

Disparity control requires that the guidelines be correctly applied to ensure

Most States include

juvenile adjudications

in the measurement of

prior records.
 71

Monograph

that those with similar prior records are treated similarly. It is important to

establish a policy to address prior convictions from other jurisdictions. Most

States have required the courts to translate previous convictions into current

codes. If the appropriate classification (e.g., whether the offense would be

classified as a felony or misdemeanor) is ambiguous, then the court gives the

defendant the benefit of the doubt and applies the least serious classification.

Another disparity issue concerns the availability of records, which may be a

particularly serious concern with the USSC standard of relying on previous

sentences. Historically, State recordkeeping systems for dispositions and

sentences have been inadequate. The more complex the measure of prior

record, the greater is the risk of disparity.

Defining Previous Conviction

The definition of prior convictions affects which convictions are counted in

the prior record calculations and thus affects sentence recommendations. At

one extreme, the definition of previous conviction could require that commission of the offense, conviction for the offense, and sentence for the conviction all occur before the commission of the current offense. At the other

extreme, a definition could include all offenses for which a defendant has

been convicted, regardless of whether conviction and sentencing occurred

before the current offense. These alternatives can produce very different prior

record scores and dramatically different sentence recommendations.

In some States, the definition of prior conviction has been subject to appellate

review. In Minnesota the State supreme court has established that if a defendant is sentenced on the same day for three offenses, then the first two count

in the prior record against the third offense. The role of criminal history in

sentencing is thus inflated. In addition, a policy assuming that the commission of prior offenses increases the culpability of an offender—regardless of

whether the offenses are committed before or after the current offense—is

established.

Other Factors

Guideline systems across the country incorporate many factors in addition to

the seriousness of the current offense and the prior convictions of a defendant. These factors include the possession/use of a weapon, the degree of

physical injury to the victim, and whether a drug trafficking offense occurred

near a school. If State statutes make such distinctions, sentencing commissions generally rely on the statute. However, some States historically have

left such distinctions to the discretion of the courts, and commissions have

incorporated them into guidelines. For example, the Pennsylvania and U.S.

sentencing guidelines incorporate numerous factors not included in statutes

but thought by commissions to be necessary for establishment of fair

guidelines.

The more complex the

measure of prior

record, the greater is

the risk of disparity.
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Bureau of Justice Assistance

The USSC guidelines incorporate factors that are not a part of the conviction

offense but that the Commission thinks should be considered in sentencing.

Table 5–1 indicates that the USSC incorporates more factors than any other

commission attempts to systematically include in its guidelines. Furthermore,

the USSC considers these factors in greater detail than do the States. For

example, in assessing bodily injury for aggravated assault with intent to

commit murder, USSC breaks down the categories into (1) bodily injury,

(2) serious bodily injury, and (3) permanent or life-threatening bodily injury.

The base offense level receives 2, 4, or 6 penalty points depending on the

extent of injury allegedly caused by the offender in commission of the crime.

These enhancements to statutory factors reflect the intent of USSC to incorporate real offense sentencing factors into the guidelines. Minnesota chose not

to create such enhancements, however, in keeping with its decision to focus

on conviction behavior. In general, detailed statutory definitions require

commissions to deal with fewer proportionality concerns through enhancements and real offense sentencing.

Developing Sentencing Recommendations

In establishing sentencing guideline ranges, commissions must consider many

difficult topics, including the following:

■ The role of past sentencing practices in establishing the guideline sentence

recommendations.

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

■ The role of guidelines in affecting correctional capacity.

■ The decision whether to link guideline sentence recommendations to

mandatory penalties.

■ The relative role of enhancements to guideline ranges.

■ The extent to which the commission wants to specify nonincarceration

options.

State decisions have varied widely, depending on State confidence in the

judiciary and in the ability of the guidelines to capture the appropriate sentencing standards for the typical case. Commissions can also be influenced

by the political environment. This report does not allow for indepth exploration of each of these issues. However, the reader should be somewhat familiar with how various commissions address these issues.

Descriptive Versus Prescriptive Guidelines

As mentioned previously, the focus of the descriptive approach to guideline

development is to reduce sentencing disparity by narrowing the range of

In establishing sentencing guideline

ranges, commissions

must consider many

difficult topics.
 73

Monograph

variance of similarly defined cases under sentencing guidelines. This approach establishes a guideline that accounts for the variables in guideline

construction and in the general sentencing practices historically used by

sentencing judges.

Most States, however, have rejected a purely descriptive approach because

past practices do not necessarily reflect appropriate sentences. Furthermore,

changes in resource availability (e.g., correctional capacity) and changes in

societal definitions of the seriousness of various crimes necessitate reevaluation of past criteria. Nevertheless, all commissions use past practices in

considering whether to change practices through sentencing guidelines.

Most States have adopted more prescriptive models of sentencing. This

approach encourages sentencing commissions to consider, aside from available correctional capacity, the roles of deterrence, incapacitation, rehabilitation, and retribution in the recommended guideline ranges. The prescriptive

model leaves more decisions for the commission and is necessary for States

that want to use the guidelines to help slow the growth of prison

populations.

Researcher interviews with State commissions indicate that past practice

is one of the building blocks of all sentencing guidelines. Examining past

sentencing practices provides the commission with (1) a benchmark against

which to test the sentences being developed; (2) a measure to assess the

potential impact of guidelines on sentencing and thus on correctional resources; and (3) an idea of the extent of disparity in sentencing. Past practices represent a very important foundation for the drafting of sentencing

guidelines.

Determining Sentence Lengths

Historically, sentencing has been viewed as involving two decisions: should

an offender be incarcerated and, if so, for how long? The first States adopting

sentencing guidelines focused on these two decisions. Minnesota’s guidelines,

which apply only to felonies, focused almost exclusively on the State imprisonment decision and the length of such imprisonment. For offenders not

recommended for State prison, the guidelines provided little guidance concerning appropriate lengths for county jail sentences or for community-based

alternatives (See Table 5–3).

In recent years many innovations in sentencing guidelines have been developed. The prison-crowding problem at both State and local levels pressured

State sentencing commissions to search for means to encourage alternatives

to incarceration. This interest was boosted by the book, Between Prison and

Most States have

adopted more

prescriptive models of

sentencing.
74

Bureau of Justice Assistance

Standard Unit

Sanction Duration Value

Prison 1 month 16

Jail 1 month 16

Shock incarceration 1 week 4

Work release 1 week 4

Halfway house 1 week 4

Periodic incarceration 7 days 4

Home incarceration 1 month 3

Intensive supervision 1 month 3

Day reporting 1 month 3

Treatment/residential 1 month 3

Treatment/nonresidential

(e.g., drug counseling, alcohol counseling, parent counseling

(child abuse/neglect cases), aggressive behavior therapy) 15 hours 3

Probation (supervised, with standard conditions) 1 month 2

Community service (successfully completed) 20 hours 1

Rehabilitative efforts (successfully completed)

(e.g., adult education, literacy program, GED program, vo-tech

training program, high school or college courses, budgeting courses) 20 hours 1

Loss of privilege (no violation) 90 days 1

Drug monitoring (drug free) 90 days 1

Unsupervised probation 1 month 1

Economic sanction Portion of

average monthly

income 10

Table 5–5 Louisiana Intermediate Sanction Exchange
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Monograph

Using the Intermediate Sanction Exchange Rate Table

Purpose of Intermediate Sanction Exchange Rates

The purpose of Intermediate Sanction Exchange Rates is to provide the court maximum flexibility in fashioning

appropriate sentences utilizing intermediate sanctions. Intermediate sanctions are intended for offenders

convicted of less serious and nonviolent offenses who do not have an extensive prior criminal history. In

addition to punishment, intermediate sanctions may be fashioned in several ways to meet the needs of society,

the victim, and the defendant. Use of the Intermediate Sanction Exchange Rate Table preserves uniformity in

the amount of punishment imposed on offenders with similar criminal histories, circumstances, and offenses of

conviction.

Goals of Intermediate Sanction Exchange Rates

In fashioning an intermediate sanction sentence, the sentence court should consider the following goals:

■ Proportionality of the sanction imposed to the offense of conviction and the offender’s prior criminal record.

■ Restoration of the victim as nearly as possible to preoffense condition.

■ Specific deterrence of the offender from future criminal conduct.

■ Rehabilitation of the offender.

■ Maximizing the degree to which the offender is held responsible for the costs and conduct associated with

the sanction.

Table 5–5 Louisiana Intermediate Sanction Exchange (continued)

9. Morris, N., and M. Tonry. Between Prison and Probation: Intermediate Punishments in a

Rational Sentencing System. Oxford: Oxford University Press. 1990.

Probation.9 The result was a new concept of alternatives to incarceration that

were more than merely mechanisms for relieving prison crowding. These

alternatives were also important in providing an intermediate range of penalties between prison and probation. Morris and Tonry’s book significantly

changed the concept of alternative sentencing programs, allowing people

who write guidelines to more closely link the relatively expansive measures

of offense seriousness and prior record with a range of penalties commensurate with basic guideline factors.

Oregon and Louisiana developed alternatives that involved more punishment

and restriction of liberty than did probation but that were more cost-efficient

than prison or jail cells. Furthermore, these alternatives promised greater

opportunities for offenders to contribute to their support and rehabilitation.

Louisiana and Oregon mechanisms equate the amount of time needed in

alternative programs with a period of incarceration. Table 5–5 illustrates the

concept of a penalty structure that ranges from probation to State incarceration, as developed by Louisiana’s sentencing commission.

One of the important roles for guidelines in the move toward more frequent

use of nonincarcerative sanctions is their ability to identify offenders who are

appropriate for such sanctions. Oregon and Louisiana have expressed all

sentence recommendations apart from State prisons in terms of custody units

or sanction units, and courts can select from a number of sentencing options

such as jail, traditional probation, house arrest, community service, work

One of the important

roles for guidelines in

the move toward more

frequent use of

nonincarcerative

sanctions is their ability

to identify offenders

who are appropriate for

such sanctions.
76

Bureau of Justice Assistance

release, or custodial treatment. Similarly, Washington’s sentencing guidelines

now express sentence recommendations apart from State prisons in terms of

confinement time, but courts may decide the type of confinement or nonconfinement programs in which time is to be served.

Having guidelines identify eligible offenders assures the public that such

programs target appropriate offenders (such as nonviolent offenders) and

those with the least serious prior records. Moreover, having guidelines target

offenders for intermediate punishment sanctions reduces the risk that these

programs will result in what is called net widening in which intermediate

punishments target persons who would otherwise receive short jail sentences,

with guidelines targeting such offenders for intermediate punishment.

Width of Guideline Ranges

Many questions have been raised concerning how much discretion guideline

recommendations should allow to judges. Some States, such as Minnesota,

provide very narrow ranges. Others, such as Pennsylvania, provide wide

ranges. Most jurisdictions, however, have established ranges wider than

Minnesota’s but narrower than Pennsylvania’s.

There are both practical and philosophical concerns related to wide-ranging

judicial discretion. 10 First, wide ranges allow disparate sentences for similar

offenders. For example, the Pennsylvania guideline for an offender convicted

of rape (without prior record) would allow the judge to impose a minimum

sentence ranging from 3 1/2 to 5 years. Similarly situated offenders can

receive dissimilar sentences that still fall within the guidelines.

Second, wide-ranging discretion makes it difficult to project how judges will

sentence within the range. If judges impose sentences from the upper part of

the range, the impact will likely be underestimated.

Third, wide ranges allow consideration of factors that may be inappropriate

in the sentencing process and may violate the intent of the guidelines. For

example, wide ranges allow for county variations that contradict the guideline’s intent to establish a statewide sentencing policy. Also, wide ranges

allow for disparate sentences on the basis of factors such as employment,

age, race, and gender.

Link of Guideline Recommendations to Mandatory Penalties

An issue of growing concern for sentencing commissions is whether guidelines should be commensurate with mandatory sentencing penalties adopted

by legislatures. The question is: Should the commission take the prescriptive

10. Martin, S. “Interests and Politics in Sentencing Reform: The Development of Sentencing

Guidelines in Pennsylvania and Minnesota.” Villanova Law Review 29(1984), pp. 21–113.

See also entry for Minnesota in Table 4–2.

An issue of growing

concern for sentencing

commissions is

whether guidelines

should be commensurate with mandatory

sentencing penalties

adopted by

legislatures.
 77

Monograph

mandatory penalties as its benchmark and attempt to have a comprehensive

and proportional system? The USSC guidelines adopted such a policy for drug

offenses; this policy is perhaps the main reason for the significant impact of

the Federal guidelines on the size of correctional populations. Other guideline systems, such as the one in Pennsylvania, view the guidelines independently of the mandatory statutes and have not attempted the linkage. The

Pennsylvania commission deemed it necessary to act as an independent

agency, with the guidelines reflecting differences not included in the mandatory statutes. This approach produced guidelines that were harsher than the

mandatory statutes for some offenses but more lenient for others.

Some commissions therefore reject the argument that guidelines should be

commensurate and proportional to mandatory statutes because guidelines

focus on different purposes (e.g., fairness) and provide for greater specification based on more factors. Furthermore, guidelines are written for the typical

offender, whereas mandatory minimum penalties often address the worst

cases.

Multiple Convictions

A significant proportion of sentences involve multiple convictions, but few

States provide guidance on whether such sentences should be concurrent or

consecutive. Most commissions leave this decision to the courts without any

guidance. One notable exception, however, is the policy drafted by the

Minnesota sentencing commission.

Minnesota policy allowed for the imposition of consecutive sentences only

under the following circumstances: (1) when at least one of the current

offenses is a crime against the person, the sentence imposed is within the

guidelines, and the sentence from a previous offense has not expired; (2)

when the offender is convicted of multiple felonies against the person and

is sentenced within the guidelines for the most serious offense; or (3) when

the current conviction is for escape. In all other circumstances, imposition

of consecutive sentences would be considered a departure requiring written

justification. This policy provides separate retributive punishment in cases

involving victims of serious violent crimes and provides for the severity of

the sanction to be proportional to the severity of the offense.

The Canadian sentencing commission suggested a different approach, recommending that discretion be left to the court regarding the imposition of concurrent or consecutive sentences for multiple convictions. 11 However, the

commission suggested a policy to limit the total period of confinement for

offenders convicted of multiple transactions on the basis that the total sentence should be limited to prevent life sentences from being imposed for

less serious offenses.

11. Canadian Sentencing Commission. “Sentencing Reform: A Canadian Approach.” Canada:

Minister of Supply and Services. 1987.
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Bureau of Justice Assistance

The Kansas sentencing commission is one of the few to establish a policy

governing the length of confinement for a “current conviction event.” Kansas

policy states that the total sentence cannot exceed twice the sentence recommended in the guidelines.

In general, commissions have left this sentencing issue to the discretion of the

court. In view of the significant number of cases involving multiple convictions, however, such a policy allows considerable discretion and the potential

for considerable disparity.

Sentencing Event

One of the issues to be addressed by a sentencing commission is how to

define a sentencing event in the guidelines. North Carolina defines a sentencing event as all sentences imposed on a defendant within a session of the

court, generally within 1 week. Pennsylvania defines a sentencing event in

terms of criminal transactions, on the basis of when the offenses occurred;

for each separate transaction, a separate guideline form is required. Separate

transactions occur when law-abiding behavior is exhibited between offenses;

otherwise, the offenses are considered part of the same transaction.

The definition of a sentencing event influences how information is collected

and used. Data systems using criminal transactions must be corrected to make

prison impact statements. In other words, prison impact assessments require

the identification of how many individuals are being sent to prison and for

how long.

Aggravating and Mitigating Circumstances

In contrast to mandatory minimum sentencing, one of the advantages of a

guideline sentencing system is that it provides recommendations for typical

cases and allows judges to depart from these recommendations when extenuating circumstances exist. When judges depart from guideline recommendations, however, they are required to justify their sentences.

As indicated in Table 5–1, almost all of the guideline States list aggravating

and mitigating factors deemed appropriate for judges to consider in departing

from presumed sentence recommendations. Even States such as Arkansas,

where the guidelines are not subject to appellate review, have such a list. It

should be noted that these lists are nonexclusive, leaving discretion to the

court for consideration of other factors warranting departure.

Incorporating a list of nonexclusive aggravating or mitigating factors helps

provide some direction to the court and is intended to provide more consistency across the State for sentences that depart from the guidelines. This

approach falls in line with the goal of providing fairer and more equitable

sentencing, which is one of the reasons for States to implement guidelines.

Furthermore, the lists are useful for assisting commissions if they revise the

guidelines later. For example, the reasons can help determine why some

. . . one of the advantages of a guideline

sentencing system is

that it provides recommendations for typical

cases and allows

judges to depart from

these recommendations when extenuating

circumstances exist.
 79

Monograph

offenses have high departure rates and how better recommendations can

be made.

The decision to include such a list, however, can become controversial for

commissions. Pennsylvania is one of the few States that does not provide

reasons for departure; this is particularly interesting in light of their enabling

legislation requiring the guidelines to provide aggravated and mitigated

sentence recommendations. The original set of proposed 1981 Pennsylvania

guidelines included such a list, although the commission eventually decided

to delete it. The decision to delay incorporation of aggravating and mitigating

factors into the guidelines was based on the need for data to be used to

develop such reasons.

The Pennsylvania commission has revisited the issue of whether to incorporate a list into its guidelines. Aside from providing for more consistency

among judges, a statewide survey had indicated that people who used the

guidelines would appreciate having a list. Furthermore, the reasons for

departure often received by the commission were considered inadequate.

However, the commission from judges eventually decided not to include a list

of reasons for departure because it would be a crutch for judges and unnecessary. There was also concern that it would result in more appellate litigation. Pennsylvania’s stance is interesting in view of recent studies of race and

gender, which find discrimination in departures from the guidelines. 12

States that provide reasons for departure have neither indicated problems

with such a decision nor advised against developing such a list. In the development of a list of appropriate departure reasons, caution should be exercised so that a balance is maintained between the number of aggravating and

mitigating reasons and the guidelines do not appear to favor defense or

prosecution.

The number of formal reasons for departure varies by State, with most

States having 10 or fewer reasons for both aggravation and mitigation. The

number of reasons ranges from 4 (aggravating reasons in Kansas; mitigating

reasons in Minnesota) to 31 (aggravating reasons in North Carolina). Washington reports more than 50 reasons cited by judges in mitigating guideline

sentences.

The type of factors allowed also varies by State. Minnesota has developed a

list of reasons considered inappropriate for departure, including race, gender,

and employment status of the defendant. However, other States allow reasons

of employment and other socioeconomic factors to be used to justify a departure sentence. For example, North Carolina allows the following factors to be

considered in making a departure:

12. Kramer, J.H., and D. Steffensmeier. “Race and Imprisonment Decisions.” The Sociological

Quarterly 34(2)(1993), pp. 357–376. See also Steffensmeier, D., J. Kramer, and C. Streifel.

“Gender and Imprisonment Decisions.” Criminology 31(3)(1993), pp. 411–446.

In the development of a

list of appropriate

departure reasons,

caution should be

exercised so that a

balance is maintained

between the number of

aggravating and mitigating reasons and the

guidelines do not

appear to favor defense or prosecution.
80

Bureau of Justice Assistance

■ Defendant supports her or his family.

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

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

■ Defendant has a support system in the community.

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

■ Defendant’s rehabilitation or treatment.

■ Defendant’s remorse.

■ Defendant is employed or in school, or has had a commendable

employment record or military service.

■ Defendant’s age.

■ Defendant’s assistance to law enforcement or in prosecution of

codefendant.

Clearly, how extensively these subjective factors are used to depart from the

guidelines will have much to do with meeting the goal of reducing unwarranted disparity.

Summary

The drafting of sentencing guidelines is a complex and lengthy process. How

the guidelines are written bears directly on sentencing disparity, the use of

incarceration for various offenders, and prison crowding. The complexity

results from balancing diverse and conflicting values with the knowledge

obtained through social science research concerning sentencing decisions

and their effectiveness in deterring, incapacitating, punishing, and treating

offenders. Combined with limited correctional resources, this complex process of drafting sentencing guidelines creates a tremendous challenge for

sentencing commissions.

Combined with limited

correctional resources,

the complex process of

drafting sentencing

guidelines creates a

tremendous challenge

for sentencing

commissions.
 81

Monograph

tructured sentencing reforms are designed to change how the criminal justice system operates. For example, sentencing guidelines are

expected to reduce unwarranted disparity at the sentencing phase. Specifically, both the disposition decision (prison versus probation or other community sanctions) and duration (length of sentence or time to be served in

prison or in the community) will become more predictable and equitable.

Furthermore, some States have implemented guidelines to minimize the

potential for prison crowding by requiring the imposition of imprisonment

sanctions that can be managed in a more diligent manner.

States that have adopted presumptive sentencing guideline schemes might

look different on a number of key outcome measures, such as sentencing

disparity, use of incarceration, and prison crowding, compared with States

that have not adopted such reforms. This chapter reviews published studies

and data that examine how extensively sentencing guidelines have affected

these and other key issues.

Methodological Issues in Assessing Impact

Determining the impact of sentencing guidelines is complicated by a number

of methodological issues. For example, measuring disparity and its sources

can be very complex. Prison crowding and incarceration rates are the result

not only of sentencing decisions but also of law enforcement, prosecutorial,

and budget policies that are not controlled by the courts or sentencing guidelines. This section attempts to isolate the major factors that confound assessment of the impact of sentencing guidelines.

The criminal justice community lacks consensus on the purpose and goals

of structured sentencing. Consequently, it is not clear whether all States with

guidelines should show effects in all of the dimensions listed above. Minnesota, Washington, North Carolina, and Oregon have stated that guidelines are

to be used to regulate the use of prison space and to help avoid prison

crowding.

Because the structure of guidelines varies among the States, all sentencing

guideline States cannot be held equally accountable for affecting a particular

S

Chapter 6

The Impact of Sentencing Guidelines
82

Bureau of Justice Assistance

outcome measure. In assessing disparity in departure rates, a State with a

rather broad range can succeed more easily than a State with a rather narrow

guideline range.

There is also a lack of stability in the structure and content of sentencing

guidelines over time. Each year, many States modify their guidelines. These

modifications may diminish or enhance a State’s ability to achieve success in a

particular area. For example, there have been several substantial modifications

to the original Minnesota, Washington, and Pennsylvania sentencing guidelines. Such modifications in sentencing policy make it difficult to conduct

meaningful time series analyses.

The objective of establishing control States, or States that have not adopted

structured sentencing, whose results can be compared with those of the

structured sentencing States is not a clear-cut task. Many States not defined as

true guideline States include varying degrees of structured sentencing, such as

determinate and mandatory minimum sentencing provisions. Some

nonguideline jurisdictions have eliminated the use of discretionary parole

release, instituting many mandatory minimum sentencing provisions.

In assessing the impact of guidelines on sentencing disparity, researchers

relied exclusively on a review of the major studies published by independent

researchers or sentencing commission staffs. To examine trends in the use of

incarceration, prison crowding, and public safety, historical trend analyses

were conducted for the Federal guideline system and the four States (Pennsylvania, Minnesota, Florida, and Washington) that have had guidelines in place

for the longest time. These statistical trends were compared with nonguideline

States over the past two decades.

In selecting States for comparison with the four guideline States, the following

methodology was used. For any outcome measure, trend data on the four

guideline States and all the nonguideline States were analyzed for the years

preceding the adoption of guidelines. Nonguideline States with similar historical trends on these outcome measures were selected as comparison States.

For example, in assessing incarceration rate trends for Minnesota, Minnesota’s

incarceration rate from 1971 to 1980 was analyzed. States having similar

incarceration rates over that time were used as comparison States. This selection process minimized the error of lumping all nonguideline States into a

single group.

Impact on Sentencing Disparity

Although jurisdictions may vary in their reasons for initiating a sentencing

guideline system, almost all might argue that a primary goal of sentencing

guidelines is to reduce unwarranted disparity in sentencing practices. Every

sentencing commission has claimed that its guidelines have achieved some

reduction in sentencing disparities.

Every sentencing

commission

has claimed that

its guidelines have

achieved some

reduction in

sentencing

disparities.
 83

Monograph

In evaluating disparity reduction, the preferred research design would consist

of a simple pre- and posttest comparison of two samples of offenders. The

first sample represents offenders who were sentenced under the preguideline

sentencing structure, with the second sample being similarly situated offenders who were sentenced under the newly instituted guidelines. Statistical

comparisons between the two samples are made on comparable offense

categories (as well as other relevant factors such as prior criminal record

and victim attributes) to ensure that both samples are statistically equivalent.

Analyses can then be made to determine whether the imposition of sentences

has become more standardized for the guideline cases than was the case for

preguideline samples (i.e., less variance in case disposition and sentence

length).

Although this design appears straightforward, several problems arise in its

execution. A review of a number of the limited studies on sentencing disparity has pointed out three major methodological problems. 1

 Sentencing practices may have changed so drastically since the dissemination of guidelines

that similarly labeled offenses may not mirror each other before and after the

use of guidelines. For example, to circumvent the guidelines through plea

bargaining, less serious second-degree aggravated assaults could result in less

serious charges and residual convictions for these crimes, resulting in a more

homogenous pool than existed before guidelines were enacted. This increase

in homogeneity will give the appearance of increased uniformity in sentencing practices. However, the guideline assault cases will not truly represent

the preguideline assault cases.

In addition, because it is not possible to use an experimental design in which

a pool of offenders is randomly assigned to either a guideline or a nonguideline system, reductions in disparity that would have occurred independently

of the passage of guidelines cannot be controlled for. This is especially likely

with the growing popularity of numerous legislative actions such as mandatory terms that require offenders convicted of specific crimes to be imprisoned and spend a specific amount of time incarcerated. A great deal of

determinacy may already have been achieved before the guidelines were

adopted.

The studies also tend to rely on simplistic comparisons of crime and prior

criminal history categories now used by the guidelines for both samples

(before guidelines and under guidelines), rather than a more sophisticated

analysis of sentencing factors that were relevant before the preguideline

cohort. For example, an offender’s employment status and age may have

been relevant under an indeterminant/rehabilitative sentencing model, but

now are excluded under guidelines. Excluding these factors from the comparative analyses almost ensures that the preguideline sample will appear

more disparate than the guideline sample.

1. Tonry, M. “Sentencing Commissions and Their Guidelines.” In Crime and Justice: A Review

of the Research, vol. 17, ed. M. Tonry, pp. 137–196. Chicago: University of Chicago Press.

1993.
84

Bureau of Justice Assistance

Finally, few sophisticated and independent evaluations have been completed,

with the exception of the Minnesota and the U.S. guidelines. Independent

evaluations on disparity reduction have not yet been published for Florida,

Oregon, Pennsylvania, Washington, and Delaware. These States have relied

instead on their own analyses to conclude that disparity has been reduced. In

some instances, the claim is based on a simple analysis of whether the court

is complying with the current guidelines rather than on changes in sentencing

practices based on a preguideline cohort.

United States Sentencing Guidelines

One of the most detailed and sophisticated studies on disparity was released

by USSC in 1991. It examines the short-term impacts of the Federal guidelines

system on unwarranted disparity in sentencing, use of incarceration, and

prosecutorial discretion and plea bargaining. 2

 Using a variety of analytic

techniques, the Commission concluded that Federal guidelines have reduced

disparity and were generally well accepted by a majority of the judges,

prosecutors, and probation officers. Only Federal public defenders and

private attorneys believed otherwise. Nonetheless, the study has been the

object of controversy, with the soundness of the Commission’s methodology

and its conclusions being questioned.

The USSC study attempted to answer the following question:

Does the range of sentences meted out for defendants with similar

criminal records convicted of similar criminal conduct narrow as a

result of guideline implementation? 3

To answer this question, eight categories of offenses representing a crosssection of Federal crimes were selected for quantitative analyses of disparity

reduction: four categories of robbery (with or without weapon, combined

with no criminal history or moderate criminal history); two categories of

embezzlement ($10,000–$20,000 loss and $20,000–$40,000 loss); heroin

trafficking; and cocaine trafficking. Two samples representing pre- and

postguideline cases were drawn.

In assessing disparity, two measures of sentence lengths were examined:

actual sentences imposed by the court and time served (or to be served).

Actual time served was not always attainable because some offenders had

not served their entire sentences. In those cases, length of stay was estimated

by using the presumptive parole date for preguidelines cases and the sentence duration minus the maximum amount of credit for good behavior for

2. U.S. Sentencing Commission. The Federal Sentencing Guidelines: A Report on the Operation

of the Guidelines System and Short-Term Impacts on Disparity in Sentencing, Use of Incarceration, and Prosecutorial Discretion and Plea Bargaining. Washington, DC, 1991.

3. Note 2, p. 279.
 85

Monograph

guidelines cases. Researchers found that the range of sentences, as indicated

by the middle 80 percent of cases, had narrowed for all eight crime categories, although only three were statistically significant.

These results generally demonstrated that under the Federal guidelines,

disparity had been reduced and that for some crimes, the reduction was

substantial. However, a number of methodological issues limit the strength of

these findings. Because USSC was attempting to ensure that pre- and postguideline offender groups were properly matched on all relevant dimensions,

the sample sizes for the disparity analyses were quite small. Although the

total number of sample cases was approximately 6,000, the sample sizes for

offense categories ranged from 13 to 44 cases (preguidelines) and 24 to

81 cases (postguidelines).

Cases in which the judges departed from the guidelines because the offender

provided substantial assistance to the Government were excluded from the

analysis. In 1991 approximately 12 percent of all disposed cases resulted in

“downward departures for substantial assistance;” the same type of departures

reached 21 percent for drug offense cases, while the overall departure rate

was 19 percent.4

 Excluding these cases from the analysis understates the level

of disparity, although the sentences are no longer considered guidelines.

The fact that only three of the offense categories showed statistically significant reductions in disparity suggests that preguideline cases were already

exhibiting a relatively high degree of uniformity in court disposition. Further

declines in sentencing discrepancy might have occurred independently of

the introduction of guidelines and may be the product of chance.

The USSC survey of court officials found that while Federal prosecutors

and probation officers believed disparity had decreased (51 and 52 percent,

respectively), a majority of judges (56 percent), Federal defenders (68 percent), and private attorneys (50 percent) reported that disparity either increased or remained about the same.5

As noted by Senior Circuit Judge Gerald Heaney, assessing disparity reduction

becomes more complicated because the decision as to whether a case is

handled by either a State or Federal court was not part of the study. 6

 Heaney

notes that local law enforcement agencies can file cases in Federal court for

certain crimes (especially drug crimes) because convicted offenders are likely

to receive longer sentences in the Federal courts. This discretionary local

jurisdictional filing decision has not been analyzed by any of the studies of

the Federal guidelines, yet it can represent a major form of disparity in

criminal justice decisionmaking.

4. U.S. Sentencing Commission. Annual Report—1991. Washington, DC, 1992 (see Table 55).

5. Note 4, Table 29.

6. Heaney, G.W. “The Reality of Guidelines Sentencing: No End to Disparity.” American

Criminal Law Review 28(2)(1991), pp. 161–232.

The results [of

the USSC survey] . . .

demonstrated that

under the Federal

guidelines, disparity

had been reduced and

that for some crimes,

the reduction was

substantial.
86

Bureau of Justice Assistance

USSC recognized that its study was preliminary. At the time of the study,

guidelines had been in effect for only 2 1/2 years. Consequently, when the

postguideline implementation cases were selected, only 43–75 percent of

Federal offenders were sentenced according to the guidelines. 7

The second major study of the Federal guidelines was conducted by the

U.S. General Accounting Office (GAO), whose research consisted of reanalyzing the USSC data. Although employing different statistical methods, GAO

agreed with USSC that preliminary evidence indicated a reduction in disparity.

However, data limitations prevented a determination of whether overall

sentencing disparity had been reduced. GAO was especially interested in

whether the influence of demographic factors such as race, gender, and

education had been diminished. Data limitations prevented this issue from

being fully assessed:

Congress was particularly interested in reducing or eliminating

disparity caused by demographic factors such as an offender’s race,

gender, and education. However, limitations and inconsistencies in

the data available for preguidelines and guidelines offenders made

it impossible to determine how effective the sentencing guidelines

have been in reducing overall sentencing disparity. 8

The GAO analysis attempted to group the sentence differences into parts on

the basis of discrimination and legitimate factors. To do this, GAO devised

two regression models: a constrained model, reflecting sentences under the

guidelines; and an unconstrained model, using only statistically significant

variables available to sentencing judges and omitted from the guideline

scoring system. Under the constrained model, 25 percent of the racial gap in

sentences among bank robbers was caused by discrimination, whereas under

the unconstrained model, 48 percent of the racial gap was caused by discrimination. The GAO findings suggest that although the Federal guidelines are

responsible for reducing some racial disparity in sentencing, the problem of

discrimination persists within the guideline range.

Samuel Myers was especially concerned with the racial disparity issue. 9

 His

review of the analyses of USSC and GAO led him to conclude that racial

inequities persist, although not always in a consistent manner:

GAO computed odds ratios for the chances that a black versus a

white offender received a sentence which fell below the guideline

minimum for the convicted crime, or at the top, bottom or middle

7. Note 2.

8. U.S. General Accounting Office. Sentencing Guidelines—Central Questions Remain

Unanswered. Washington, DC, 1992.

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

The GAO findings

suggest that the

problem of

discrimination

persists within the

[Federal] guideline

range.
 87

Monograph

of the guideline range.... [The] report suggests wide variations

across crimes, with blacks more often than whites receiving top of

the range and above the range sentences for robbery, but at the

same time within range and bottom of the range sentences for

cocaine distribution.... The GAO also performed a residual

difference analysis of Federal sentences for black and white bank

robbers sentenced in the fiscal year of 1990. On average, blacks

served about ten percent longer sentences than whites. In jury

trials, the reverse was true; whites received longer sentences. 10

Two studies have shed further light on the issue of racial disparity under the

USSC guidelines, casting doubt on the quantity ratio established by Congress

in the mandatory minimum penalties.11 Both studies center on USSC penalties

imposed for possession or sale of crack cocaine. Under the Anti-Drug Abuse

Act of 1986 and before guidelines were implemented, Congress modified the

penal code to allow for much more severe sentences for drug crimes involving crack cocaine than for crimes involving powdered cocaine. In general,

persons convicted of possessing or trafficking in 50 grams or more of crack

cocaine would receive a prison term of not less than 10 years. If the offender

had a prior drug conviction, the sentence would be not less than 20 years. If

the amount of crack cocaine was at least 5 grams but less than 50 grams, the

sentence would be at least 5 years, or 10 years with prior drug crime convictions. These same penalties would apply to offenders if they had 100 times

these amounts of powdered cocaine.

Berk and Campbell analyzed Federal charging practices in the Los Angeles

area for crack cocaine. 12 In California the Federal crack cocaine penalties

are much more severe than those under the State’s determinate sentencing

laws. Consequently, the prosecutor’s discretion to try a case in Federal court

represents a major source of unwarranted disparity. The researchers found

that in Los Angeles, while African-Americans represent 58 percent (n=1,801)

of all arrests and 53 percent (n=4,410) of State prosecutions for crack cocaine,

they account for 83 percent (n=36) of Federal prosecutions. In contrast,

Caucasians represented 3 percent (n=56) of arrests and 3 percent (n=222) of

State prosecutions, but zero Federal prosecutions.

McDonald and Carlson conducted a pre- and postguideline analysis of

sentencing in the Federal courts by race. They found that prior to guideline

implementation, there were no differences between race/ethnicity and

sentences imposed:

10. Note 9, pp. 793–794.

11. Berk, R., and A. Campbell. “Preliminary Data on Race and Crack Charging Practices in

Los Angeles.” Federal Sentencing Reporter 6(1)(1993), pp. 36–38. See also McDonald, D.C.,

and K.E. Carlson. “Why Did Racial/Ethnic Sentencing Differences In Federal District Courts

Grow Larger Under the Guidelines?” Federal Sentencing Reporter 6(4)(1994), pp. 223–226.

12. Note 11.
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Bureau of Justice Assistance

Fifty-four percent of all white as well as black offenders in these

cases were given prison sentences that were comparable in length;

a maximum of 50 months, on average, for whites, and 53 months

for blacks. Hispanics were more likely to be imprisoned (69 percent), but their sentence lengths averaged approximately the same

length: 52 months.13

Since guidelines were adopted, however, the proportion of African-Americans

and Hispanics sentenced to prison by 1990 had grown to 78 and 85 percent,

respectively, compared with a 72-percent increase for Caucasians. AfricanAmericans sentenced to prison received an average sentence length of

71 months, compared with 50 months for Caucasians and 48 months for

Hispanics.

The researchers attribute most of these differences to the 1986 drug sentencing laws and the USSC guidelines. Between 1986 and 1990, the proportion

of African-Americans sentenced for drug trafficking grew from 19 percent

to 46 percent, compared with 26 percent to 35 percent for Caucasians.

In evaluating the source of this disparity among African-Americans and

Caucasians, the authors identified the source of disparity as the crack cocaine

drug laws:

Among cocaine traffickers, however, there were substantial differences. Blacks were imprisoned somewhat more frequently than

Caucasians (96.7 percent versus 94.1 percent), and their sentences

were significantly longer, on average: 102 months versus

74 months—a 37 percent difference. 14

Because African-Americans constituted 83 percent of the crack cocaine trafficking cases, they were disproportionately sentenced to prison and received

far longer prison terms than Caucasians:

These and other analyses not reported here lead us to conclude

that the source of the differences in sentencing of blacks and whites

under the guidelines was not invidious discrimination by judges at

the point of sentencing. Instead, the primary reasons were the

predominance of blacks in Federal crack trafficking cases, and

Congress’s decision to punish crack cocaine severely. 15

The widespread use of mandatory minimum penalties illustrates how sentencing reforms external to the guidelines themselves can negate gains in reducing disparity. The USSC conducted a study of the effects of these mandatory

13. McDonald, D.C., and K.E. Carlson. “Why Did Racial/Ethnic Sentencing Differences in

Federal District Courts Grow Larger Under the Guidelines?” Federal Sentencing Reporter

6(4)(1994), pp. 223–226.

14. Note 13, p. 224.

15. Note 13, pp. 225–226.

The widespread use

of mandatory minimum

penalties illustrates

how sentencing

reforms external to the

guidelines themselves

can negate gains in

reducing disparity.
 89

Monograph

minimum penalties on sentencing disparity and found that they were not

applied in a uniform manner. On the basis of its analysis, USSC reached the

following conclusion:

Despite the expectation that mandatory minimum sentences would

be applied to all cases that meet statutory criteria of eligibility, the

available data suggest that this is not the case. The lack of uniform

application creates unwarranted disparity in sentencing, and compromises the potential for the guidelines sentencing system to

reduce disparity. 16

The use of departures within the Federal system is another issue for consideration. After 5 years of nationwide guideline implementation, one of the more

disturbing trends in the Federal system has been an increase in the annual

rate of downward departures based on substantial assistance provided to

authorities by offenders (also known as cooperation). Before substantial

assistance departures can be made, a motion must be filed by the Government in court, outlining the defendant’s assistance. In 1989 the substantial

assistance departure rate was 5.8 percent, rising to 7.5 percent in 1990,

11.9 percent in 1991, 15.1 percent in 1992, and 16.9 percent in 1993.17 Depending on which defendants the government decides should receive motions for downward departure, considerable disparity could be brought back

into the system. The U.S. Sentencing Commission is conducting a major study

of these departures, with a report expected in January 1996.

Collectively, results of all the studies described in this chapter suggest that the

USSC guidelines have reduced disparity but that more research is needed to

better understand the overall impact on sentencing disparity reduction. The

extent of racial disparity in the use of incarceration has worsened under the

mandatory minimum-driven drug guidelines, with dramatically increased

penalties for which African-Americans are disproportionately arrested and

convicted.

Minnesota Sentencing Guidelines

Much research has been conducted on the effects of Minnesota’s guidelines,

with the most thorough study having been completed by the Minnesota

Sentencing Guidelines Commission (MSGC) in 1984. The MSGC evaluation

used a preguidelines sample (1978) and several postimplementation samples

(1981–1983) to assess impact on sentencing practices. Using a measure of

grid variance, MSGC found that greater uniformity was achieved by the

guidelines than by the previous indeterminate system (Table 6–1). Part of this

achievement could be attributed to the low level of departures from the

prescribed guideline-based dispositions. Initially, only 6.2 percent of the cases

16. U.S. Sentencing Commission. Special Report to the Congress: Mandatory Minimum Penalties

in the Federal Criminal Justice System. Washington, DC, 1991.

17. Personal communication with Phyllis Newton, U.S. Sentencing Commission.
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Bureau of Justice Assistance

Before Guideline Years

Guidelines

Element 1978 1981 1982 1983

(n=4,369) (n=5,500) (n=6,066) (n=5,562)

Prison Dispositional Uniformity*

Total 0.1041 0.0499 0.0586 0.0647

Caucasians 0.1000 0.0408 0.0586 0.0646

African-Americans 0.0779 0.0674 0.0512 0.0573

Native Americans 0.1040 0.0847 0.0783 0.0799

Other Minorities 0.0315 0.0463 0.0855 0.0475

Departure Rates (%)**

Total N/A 6.2 7.0 8.9

Upward N/A 3.1 3.4 4.5

Downward N/A 3.1 3.4 4.5

* Note: The formula for the variance of a dichotomous variable is:

Variance = p (1–p),

where p = the probability of one of the dichotomous outcomes. When p = 1 (for example, when all offenders get either prison or

probation), the variance equals zero:

Variance = 1(1–1) = 0.

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

Butterworth. 1988.

** N/A, Not applicable.

18. Stolzenberg, L., and S.J. D’Alessio. “Sentencing and Unwarranted Disparity: An Empirical

Assessment of the Long-Term Impact of Sentencing Guidelines in Minnesota.” Criminology

32(2)(1994), pp. 301–310.

Table 6–1 Minnesota Sentencing Patterns

departed from the guidelines and did so in no singular direction. However,

departure rates increased slightly during the succeeding 2 years, from 6.2 to

8.9 percent.

An article published by Stolzenberg and D’Alessio provides further evidence

that the early gains in reducing disparity have slowly eroded. In their analysis

of sentencing practices between 1977 and 1989, the authors found that disparity in the length of sentence decision has been reduced by 60 percent. 18
 91

Monograph

However, for the prison disposition decision, substantial gains realized

immediately after guideline implementation have not been maintained. The

estimated reduction for the in/out decision is only 18 percent and is approaching preguidelines levels (see Figures 6–1 and 6–2).

Figure 6–2 Unwarranted Disparity for the Prison Length Outcome

Source: Stolzenberg and D'Alessio (1994),p.305.

Figure 6–1 Unwarranted Disparity for the No Prison/Prison Outcome

Source: Stolzenberg and D'Alessio (1994),p.305.
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Bureau of Justice Assistance

Regarding sentencing neutrality, “there were only marginal gains.” 19 While

dispositions for African-Americans and Native Americans were more uniform

than they were before the guidelines, reductions in sentencing variations

for these minorities were less than reductions for Caucasians (Table 6–1).

Minority offenders continued to receive somewhat harsher sanctions than

Caucasian offenders, even when offense severity and criminal history are

controlled for. Employment status continued to be associated with sentence

length. Sentences for imprisoned women averaged 7 months less than those

for similarly situated male prisoners. Nonetheless, it is generally agreed that

racial and gender disparity have declined modestly under the guidelines. 20

Washington Sentencing Guidelines

The Washington State Sentencing guidelines were intended to ensure longterm imprisonment for violent offenders, community sanctions for property

offenders, and greater equity in the sentencing process. Neutrality in sentencing was a major goal stated in the Sentencing Reform Act (SRA), which

required application of the guidelines to all offenders equally, without regard

to any offender characteristics except for offense severity and criminal record.

Reviewing the State’s first 10 years’ experience with sentencing guidelines,

the Washington Sentencing Guidelines Commission (WSGC) concluded:

The high degree of compliance with sentencing guidelines has

reduced variability in sentencing among counties and among

judges. Moreover, the great majority of sentences fall within the

standard ranges, and they tend to be gender and ethnicity neutral. 21

This conclusion was supported by earlier findings that little disparity was

found in the lengths of sentences imposed for nondeparture sentences

19. Parent, D.G. Structuring Criminal Sentences: The Evolution of Minnesota’s Sentencing

Guidelines. Stoneham, MA: Butterworth. 1988.

20. Miethe, T.D., and C.A. Moore. “Socioeconomic Disparities Under Determinate Sentencing

Systems: A Comparison of Pre- and Post Guideline Practices in Minnesota.” Criminology

23(1985), pp. 337–363. See also Miethe, T.D., and C.A. Moore. “Racial Differences in

Criminal Processing: The Consequences of Model Selection on Conclusions About Differential Treatment.” Sociology Quarterly 27(1986), pp. 217–237. See also Miethe, T.D., and

C.A. Moore. “Can Sentencing Reform Work? A Four-Year Evaluation of Determinate

Sentencing in Minnesota.” Paper presented at the annual meeting of the American Society

of Criminology, November 1988. See also Moore, C.A., and T.D. Miethe. “Regulated and

Non-Regulated Sentencing Decisions: An Analysis of First-Year Practices Under Minnesota’s

Felony Sentencing Guidelines.” Law and Society Review 20(2)(1986), pp. 253–277. See also

Miethe, T.D. “Charging and Plea Bargaining Practices Under Determinate Sentencing: An

Investigation of the Hydraulic Displacement of Discretion.” Journal of Criminal Law and

Criminology 78(1)(1987), pp. 155–176. See also Frase, R.S. “Implementing CommissionBased Sentencing Guidelines: The Lessons of the First Ten Years in Minnesota.” Wake

Forest Law Review. 1993.

21. Washington State Sentencing Guidelines Commission. A Decade of Sentencing Reform:

Washington and Its Guidelines 1981–1991. Olympia, 1992.
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(87 percent of all sentences fell within the standard sentencing range). 22 In

general, the guidelines have produced the desired results: higher probabilities

and longer sentences for persons convicted of violent crimes, less imprisonment for property crimes, and high compliance with the guidelines.

African-American offenders received longer sentences than Caucasians, but

these differences were attributed to ethnic differences in the offense seriousness level and overall offender score patterns (Table 6–2). Results were

confirmed by imposing the average sentence lengths received by Caucasians

in various crime and criminal history categories on similarly situated AfricanAmerican offenders.

Although evidence failed to show systematic ethnic disparity among

nondeparture cases, substantial disparity according to ethnicity and race was

revealed in the use of the First-Time Offender Waiver (FTOW) and the

Special Sexual Offender Sentencing Alternative (SSOSA) 23 (Table 6–3). Both of

these sentencing dispositions can be used by the judge to depart from the

guideline-based sentences. Although these are not viewed as departures, they

are frequently invoked. For example, in FY 1992, 13 percent of all sentences

were FTOW, with another 2 percent being SSOSA. 24 In 1987, only 8 percent

of all cases received such a sentence.

Caucasians were three times as likely as African-Americans and half as likely

as other minorities to receive a FTOW sentence below the standard sentencing range. Caucasians were also four times as likely as African-Americans and

twice as likely as other minorities to receive a suspended sentence under

SSOSA. The disparity in FTOW and SSOSA departures could be partly explained by the lack of treatment programs and other resources provided for

minority defendants, but nontreatment alone cannot account for most of the

disparity in the frequency of these departures.

The Washington report also examined gender disparity in sentencing and

found that females systematically received shorter sentences, even when

studies controlled for crime severity and criminal history. Females were more

than twice as likely as males to receive a downward departure through the

FTOW (Table 6–4).

22. Fallen, D.L. Sentencing Practices Under the Sentencing Reform Act. Olympia: Washington

State Sentencing Guidelines Commission. 1987.

23. First-time offenders not convicted of a sex offense or a violent offense can be sentenced

under a broader range of sentence conditions permitted by the First-Time Offender Waiver.

The Special Sexual Offender Sentencing Alternative allows a determinate sentence to be

suspended so that treatment programs can be imposed. If an offender fails to comply with

the sentence conditions, the suspension will be revoked and the original sentence imposed.

24. Note 21, p. 21.
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Bureau of Justice Assistance

Ethnic Group Avg. Sentence

 (in months) No.

Caucasians 7.5 6,720

African-Americans 9.0 1,370

Other minorities 6.8 765

Table 6–2 State of Washington Average Sentence Length, by Ethnic Group

(Nondeparture Sentences Only)

Caucasian African-American Other

Category (n=8,144) (n=1,584) (n=874)

Exceptional (above) 1.5 1.5 1.0

Exceptional (below) 2.4 2.0 1.4

Exceptional (within) 0.2 0.1 0.2

First-time offender (below) 5.0 1.6 3.4

SSOSA* (below) 3.4 0.9 1.7

TOTAL (below) 10.9 4.5 6.5

Female Male

Category (n=1,465) (n=9,162)

Exceptional (above) 1.2 1.5

Exceptional (below) 1.9 2.3

Exceptional (within) 0.2 0.2

First-time offender (below) 8.9 3.7

SSOSA* (below) 0.5 3.3

TOTAL (below) 11.3 9.2

* SSOSA, Special Sexual Offender Sentencing Alternative.

Source: Fallen, D.L. Preliminary Evaluations of Washington's Sentencing Guidelines. Olympia:

Washington State Sentencing Guidelines Commission. 1986, pp. 63, 64, and 72.

Table 6–3 State of Washington Departure Rates (%), by Ethnic Group: All Convictions

Table 6–4 State of Washington Departure Rates (%), by Gender: All Convictions
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Monograph

Oregon Sentencing Guidelines

Oregon’s Criminal Justice Council (OCJC) has also compared cases sentenced

prior to and after guidelines went into effect in 1986. The first-year report on

Oregon’s sentencing guidelines compared the two samples and reached the

following conclusion:

. . . [G]uidelines have increased uniformity in sentencing substantially. Dispositional variability for offenders with identical crime

seriousness and criminal history scores has been reduced by

45 percent over the variability under the pre-guidelines system. 25

This statement was based on a computation of the same grid variance used

by Minnesota and Washington in their evaluations. As was done in Minnesota, researchers applied the guideline grid criteria to both the pre- and

postguideline implementation samples. For the 1986 sample, the grid variance

equalled 0.100, while the guideline cases had a grid variance of 0.045. On the

basis of these two statistics, the OCJC concluded that “... since the guidelines went into effect, the degree of dispositional uniformity has increased by

55 percent.” 26 According to the OCJC, this level of improvement in dispositional uniformity was similar to levels reported by Minnesota and Washington

(54 percent and 73 percent, respectively). 27 No pre- and posttests were conducted on variance reductions in sentence length or estimated time served.

The first report found that sentencing disparity by race and gender had been

reduced. However, “significant racial and gender disparity continues” for

those cases that are based on the two sentencing options for which judges

have discretion: optional probation and sentencing departures (approximately

9 percent of all cases sentenced were one of these two options).

The third-year report was based on 1992 cases sentenced under the guidelines and notes that the departure rate steadily increased (from 6 percent

in 1990 to 10 percent in 1992). The report also makes a more definitive

statement that racial and gender disparity persists under the guidelines:

Generally, men were convicted of more serious offenses and had

more serious criminal histories than women. Minorities were convicted of more serious offenses and had more serious criminal

histories than whites. Under guidelines, the presumptive sentence is

based on an offender’s crime seriousness and criminal history

classification. Thus, male and minority offenders were more likely

to have a presumptive sentence of prison. And, actual imprisonment rates were higher for men and minorities. 28 (See Table 6–5.)

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

26. Note 25, p. 17.

27. Note 25, p. 72.

28. Mosbaek, C. Third-Year Report on Implementation of Sentencing Guidelines: 1992.

Portland: Oregon Criminal Justice Council. 1993.
96

Bureau of Justice Assistance

29. Note 28.

The report also found that:

Sentencing disparity is not entirely due to differences in current and

prior conviction offenses. More details are needed on the crimes of

conviction to determine if the specifics of the offender’s criminal

acts are the source of the disparity in sentencing. 29

While differences in sentencing severity have been reduced among regions of

the State, they persist.

% with

Category No. Sentenced % to Prison Presumptive

Prison Sentence

Race

Caucasian 8,674 16.7 19.3

Hispanic 1,621 22.1 19.7

African-American 1,183 27.2 25.4

Native American 185 20.0 22.7

Asian American 72 25.0 27.8

Other 28 17.9 32.1

p <.0001 p <.0001

Gender

Male 10,343 20.7 22.0

Female 1,997 6.0 9.1

p <.0001 p <.0001

Source: Mosbaek, C. Third Year Report on Implementation of Sentencing Guidelines: 1992.

Portland: Oregon Criminal Justice Council. 1993, pp. 39, 42.

Table 6–5 State of Oregon Imprisonment Rate and Presumptive Prison Rate, by Race

and Gender: 1992
 97

Monograph

Pennsylvania and Delaware Sentencing Guidelines

Neither Pennsylvania nor Delaware have conducted a pre- and postguidelines

implementation study; they have focused instead on consistency within the

State and/or compliance to guideline criteria. In Delaware, three studies have

found that the guidelines have succeeded in sentencing more violent offenders to prison and increasing the number of nonviolent offenders sentenced to

intermediate sanctions. 30

In Pennsylvania, the Commission staff found high levels of compliance

and disparity among the counties having declined since the guidelines

were implemented.31 The results of several analyses of sentencing under

Pennsylvania’s guidelines have shown a pattern similar to that in Washington

and Oregon.32 Although the factors prescribed by guidelines (offense severity,

prior record) were overwhelmingly the strongest predictors of sentencing

outcomes, significant differences exist by race, gender, region of the State

(e.g., rural versus urban), and sentencing differences between those who

plead guilty and those convicted by jury trial are especially great. Dispositional departures below guidelines were a substantial contributor to differences in gender and race.

Summary of Disparity Findings

There is substantial evidence to show that sentencing disparity has been

reduced by presumptive guidelines in several jurisdictions. However, there

is also evidence to show that some of the early progress achieved in these

States may be slowly eroding. Tonry concludes that although sentencing

disparity has “most likely” been reduced, “... the evaluation research evidence on this question is less definitive than it appears or than its celebrants

claim.”33

One common theme among researchers’ findings is that guideline departures—especially departures below guidelines—significantly contribute to

30. Gebelein, R.S. “Sentencing Reform in Delaware.” Overcrowded Times 2(2)(1991), pp. 5, 12–

13. See also Quinn, T.J. “Delaware Sentencing Guidelines Achieving Their Goals.” Overcrowded Times 3(1)(1990), pp. 1–2. See also Quinn, T.J. “Voluntary Guidelines Effective in

Delaware.” Overcrowded Times 3(1)(1992), pp. 1, 9, 11.

31. Pennsylvania Commission on Sentencing. Sentencing in Pennsylvania: Annual Report.

University Park, 1991. See also Kramer, J.H., and R.L. Lubitz. “Pennsylvania’s Sentencing

Reform: The Impact of Sentencing Commission-Established Guidelines.” Crime and

Delinquency 31(1985), pp. 481–500.

32. Kramer, J.H., and D. Steffensmeier. “Race and Imprisonment Decisions.” The Sociological

Quarterly 34(2)(1993), pp. 357–376. See also Steffensmeier, D., J. Kramer, and C. Streifel.

“Gender and Imprisonment Decisions.” Criminology 31(3)(1993), pp. 411–446. See also

Ulmer, J. Trial Court Communities Under Sentencing Guidelines: Sentencing, Case Processing, and Organizational Relations. Ph.D. dissertation, The Pennsylvania State University.

Ann Arbor, MI: University Microfilms International. 1993. See also Kramer, J.H., and

J. Ulmer. “Sentencing Disparity and Guideline Departures.” Criminology, in review.

33. Note 1.

There is substantial

evidence to show that

sentencing disparity

has been reduced by

presumptive guidelines

in several jurisdictions.
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Bureau of Justice Assistance

disparity and especially race and/or gender sentencing disparities. 34 That is,

Caucasians and females are more likely to receive departures below guidelines and less likely to receive departures above guidelines. Similarly, Caucasians are more likely to receive options that are not officially labeled as

departures but serve the same function.

Table 6–6 summarizes the departure rates for five States and the Federal

guidelines as assembled by Tonry. 35 Standard sentences are shown applied to

75–80 percent of all cases, and the vast majority of departures are below the

guidelines. As long as departure rates remain at this level and in a downward

direction, the question of disparity reduction remains somewhat clouded.

Impact on Plea Bargaining

Some feared that guidelines would give prosecutors a disproportionate level

of discretion over sentencing and result in more charge bargaining. 36 However, limited research as well as anecdotal evidence indicates that this fear is

unfounded.

For example, Miethe reports that, after guidelines were instituted in Minnesota, prosecutors did not engage in greater charge bargaining and sentence

bargaining cases did not show greater race or class disparity than those prior

to guidelines.37 Cirillo, 38 Ulmer and Kramer,39 and Ulmer40 found that

34. Note 1. See also Kramer, J.H., and D. Steffensmeier. “Race and Imprisonment Decisions.”

The Sociological Quarterly 34(2)(1993), pp. 357–376. See also Steffensmeier, D., J. Kramer,

and C. Streifel. “Gender and Imprisonment Decisions.” Criminology 31(3)(1993), pp. 411–

446. See also Kramer, J.H., and J. Ulmer. “Sentencing Disparity and Guideline Departures.”

Criminology, in review. See also Griswold, D. “Deviation From Sentencing Guidelines: The

Issue of Unwarranted Disparity.” Journal of Criminal Justice 15(1987), pp. 317–329.

35. Tonry, M. “Malign Neglect—Race, Crime and Punishment in America.” Unpublished

manuscript.

36. Alschuler, A.W. “Sentencing Reform and Prosecutional Power: A Critique of Recent Proposals for ‘Fixed’ and Presumptive Sentencing.” University of Pennsylvania Law Review

126(1978), pp. 550–577. See also Alschuler, A.W. “Departures and Plea Agreements Under

the Sentencing Guidelines.” Federal Rules Decision 117(1988), pp. 459–476. See also

Tonry, M. “Sentencing Guidelines and Their Effects.” In The Sentencing Commission and Its

Guidelines, ed. A. von Hirsch, K. Knapp, and M. Tonry. Boston: Northeastern University

Press. 1987. See also Savelsberg, J. “Law That Does Not Fit Society: Sentencing Guidelines as

a Neoclassical Reaction to the Dilemmas of Substantivized Law.” American Journal of

Sociology 97(s)(1992), pp. 1346–1381.

37. Miethe, T.D. “Charging and Plea Bargaining Practices Under Determinate Sentencing: An

Investigation of the Hydraulic Displacement of Discretion.” Journal of Criminal Law and

Criminology 78(1)(1987), pp. 155–176.

38. Cirillo, V. “Windows of Discretion in the Pennsylvania Sentencing Guidelines.” Villanova

Law Review 31(1986), pp. 1309–1349.

39. Ulmer, J., and J.H. Kramer. “Sentencing Guidelines and Case Processing in Two Court

Communities.” Paper presented at the annual meeting of the Midwest Sociological Society,

Kansas City, MO. 1992.

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

Ann Arbor, MI: University Microfilms International. 1993.
 99

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Pennsylvania’s “looser” guidelines allowed many “windows of discretion”

beyond the charging stage, such as mitigated- and aggravated-range sentences and relatively easy departures, that allowed judges ample sentencing

discretion and power in the courtroom. In Washington, there has been no

noticeable increase in trial rates. 41

Evidence exists, however, that mandatory minimum penalties produce

greater charge bargaining, disproportionate prosecutorial power, and hidden

disparities. The USSC concluded that mandatory minimums are not being

41. Tonry, M. “Structured Sentencing.” In Crime and Justice: A Review of the Research, vol. 10,

ed. M. Tonry and N. Morris. Chicago: University of Chicago Press. 1988.

Ad hoc Type of Sentence

State/Year Aggravated

Established Departure Approved Standard Approved Ad hoc

Aggravated Mitigated Mitigated

Federal 1.7 — 80.6 11.9 5.8

1991

Minnesota 6.4 — 80.9 — 12.7

1989*

Minnesota 6.8 — 75.3 — 17.9

1989**

Oregon 3.0 — 94.0 — 3.0

1991

Pennsylvania 2.0 2.0 74.0 8.0 13.0

1991

Washington 1.6 — 80.7 15.4 1.7

1991

 * Dispositional departures only (State incarceration or not).

** Durational departures (length of sentence).

Sources: Ashford, K., and C. Mosbaek. First Year Report on Implementation of Sentencing Guidelines: November 1989 to January 1991.

Portland: Oregon Criminal Justice Council. 1991, pp. 31, 37. See also Minnesota Sentencing Guidelines Commission, 1991, Figures 10 and

13. See also Pennsylvania Commission on Sentencing. Sentencing in Pennsylvania: Annual Report. University Park, 1991, Table 4. See also

U.S. Sentencing Commission. Annual Report–1991. Washington, DC, 1992, Table 56. See also Washington State Sentencing Guidelines

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

Table 6–6 Departure Rates (%): American Guidelines Systems (Recent Years)
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Bureau of Justice Assistance

applied uniformly and have granted more discretion to prosecutors. 42 Austin

found that Florida’s habitual sentencing law was applied in only 20 percent

of the cases that met the criteria for being “habitualized” and that AfricanAmericans were nearly twice as likely as Caucasians to receive such a

sentence.43

There is a trade-off between allowing courts to alter sentences to reflect

unusual circumstances and reducing disparities in sentencing. By radically

constricting judicial discretion, mandatory minimum penalties severely constrain the sentencing process and move the locus of disparity to the charging

stage, where it is less visible.

Impact on Incarceration Rates

The States with presumptive guidelines and the USSC have shown higher

incarceration rates since guidelines were implemented. However, all States,

regardless of their sentencing structure, have experienced increases in their

incarceration rates. Contributing to this growth is an increase in the certainty

and length of incarceration for persons convicted of violent crimes and drug

violations. At the same time, some States’ guidelines reduce the length of

imprisonment for nonviolent offenders to offset the effects of more punitive

sentences for violent, drug, and repeat offenders on prison population

growth. The following pages contain a comparison of trends in incarceration

rates in four States that have sentencing guidelines with trends in States

without guidelines.

It should be noted that prison population growth is driven by two basic

forces—admissions and length of stay (LOS). Sentencing guidelines affect

admissions and LOS, but they are not the only factors. Prison admissions are

also influenced by demographic trends, crime rates, arrest practices, and

prosecutorial policies. In some guideline States, the offender’s LOS is regulated by good-time (both statutory and discretionary) and parole boards that

remain outside the domain of sentencing commissions. Also, there may be

considerable legislative activity, such as mandatory prison terms and/or

adoption of “truth in sentencing” provisions, that affect admissions and LOS.

For these reasons, sentencing guidelines or sentencing structures are not the

sole cause of incarceration rates.

Figure 6–3 summarizes rates of incarceration (the number of persons in prison

on any given day per 100,000 U.S. population) for the Nation and the four

guideline States. On a national level, incarceration rates have increased

dramatically over the past two decades. The four guideline States have also

increased their incarceration rates, but not always in line with the national

trends.

42. U.S. Sentencing Commission. Special Report to the Congress: Mandatory Minimum

Penalties in the Federal Criminal Justice System. Washington, DC, 1991.

43. Austin, J. Reforming Florida’s Unjust, Costly and Ineffective Sentencing Laws. San Francisco:

National Council on Crime and Delinquency. 1993.

. . . all States,

regardless of their

sentencing structure,

have experienced

increases in their

incarceration rates.
 101

Monograph

The guideline States vary substantially in their preguideline incarceration

rates. Florida has traditionally had very high rates, Pennsylvania and Washington reported moderate rates, and Minnesota has historically had a low incarceration rate. After each State adopted its guidelines, these trends persisted,

with some variations.

Washington has experienced a very modest increase since its guidelines were

introduced in 1983. This low-growth pattern, however, masks a long-term

trend that has not yet materialized. Washington’s guidelines, along with

several State supreme court rulings, were intended to reduce the rate and

length of imprisonment for persons convicted of property and drug possession crimes. Counteracting that trend was the policy of substantially increasing prison terms for inmates convicted of violent and sex crimes. The overall

effect was an immediate decline in prison population followed by a substantial increase that is projected to continue well into the future as the violent

offenders sentenced for longer terms begin to “stack up” in the prisons.

Florida has substantially increased its incarceration rate since adopting

guidelines. The Florida trends would have been even higher were it not

for a consent decree and subsequent legislation that required the State to

maintain its inmate population at 98.5 percent of its prison-bed capacity.

Note: Rates are calculated per 100,000 total population. Vertical lines indicate year in which each State enacted sentencing guidelines. 


Sources: Bureau of Justice Statistics. Sourcebook of Criminal Justice Statistics–1992. NCJ 143496. Washington, DC: U.S. Department of Justice, 

Office of Justice Programs. 1993, Table 6.59. See also Bureau of Justice Statistics. Prisoners. Washington, DC: U.S. Department of Justice, Office of 

Justice Programs. 1992, Table 2; 1993, Table 1. 

B B B B B B B B B B B B B B B B B B

B B B B B

E E E E E E E E E E E E E E E E E E E E E E E

H H H H

H

H H

H

H H H

H

H H H

H H H

H

H H H

H

A A A A A A A A A A

A

A A A A A A A

A

A

A A A

2 2 2 2 2 2 2 2 2 2

2

2 2 2

2

2

2

2

2

2

2

2

2

71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93

0

50

100

150

200

250

300

350

400

Number

Year

B Pennsylvania E Minnesota H Florida A Washington 2 National

MN PA FL WA 

Figure 6–3 Annual Changes in Incarceration Rates: Pennsylvania/Minnesota/Florida/

Washington/National
102

Bureau of Justice Assistance

This restriction resulted in Florida’s well-publicized early release program

(referred to as Controlled Release) to keep the prison population within its

rated capacity.44

Pennsylvania, while maintaining relatively moderate incarceration rates compared to Florida, also experienced an increased rate after adopting guidelines.

This growth pattern is not surprising since Pennsylvania’s guidelines were not

designed to address prison crowding.

Minnesota, which did link its guidelines to correctional resources, has shown

the lowest rate of growth. In fact there was virtually no growth until 1985.

Since then, the State’s incarceration rate has increased. This may be explained

in part by major revisions to the guidelines that were adopted in 1988—

revisions that were intended to make the guidelines more punitive for offenders convicted of violent crimes. 45

The impact of guidelines on incarceration rates can be seen by contrasting

two States that linked their guidelines to correctional resources (Minnesota

and Washington) with States that have comparable preguideline incarceration

rate trends (Figures 6–4 and 6–5). Both Minnesota and Washington fared far

better than the nonguideline States. These data prove that guidelines can have

a moderating effect on the use of imprisonment if they are designed to

accomplish that goal.

Impact on Prison Crowding

As incarceration rates have increased, what has been the effect on prison

crowding? Do sentencing guidelines have any effect on prison overcrowding?

Do they exacerbate or relieve the problem?

To answer these questions, the rates of crowding were examined, using data

provided by the U.S. Department of Justice’s Bureau of Justice Statistics (BJS).

Unfortunately, national and individual State prison capacity data were not

reported in a standardized format until 1983. Consequently, it is not possible

to compare the magnitude of overcrowding before and after the implementation of guidelines, as was done for incarceration rates.

The BJS data use two measures of prison capacity. One is based on the State’s

highest bed capacity figure, which may include a State’s temporary, operating,

or emergency bed capacity. The lowest capacity figure often reflects the

44. Note 43.

45. Dailey, D. “Minnesota: Sentencing Guidelines in a Politically Volatile Environment.” Federal

Sentencing Reporter 6(3)(1993), pp. 144–146.

Do sentencing

guidelines have any

effect on prison

overcrowding?

Do they exacerbate

or relieve the problem?
 103

Monograph

Figure 6-4 Annual Changes in Incarceration Rates: Washington and Comparison States

Figure 6-5 Annual Changes in Incarceration Rates: Minnesota and Comparison States

Note: Vertical line indicates year in which Washington enacted sentencing guidelines. 


Sources: Bureau of Justice Statistics. Sourcebook of Criminal Justice Statistics–1992. NCJ 143496. Washington, DC: U.S. Department of Justice, 

Office of Justice Programs. 1993. See also Bureau of Justice Statistics. Prisoners. Washington, DC: U.S. Department of Justice, Office of Justice 

Programs. 1992, Table 2; 1993, Table 1. 

B B B B B B B B B B

B

B B B B B B B

B

B B

B B

I I I I I I I I I I

I

I I

I I

I

I

I

I I I

I I

71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93

0

50

100

150

200

250

300

350

Number

Year

B Washington I Comparison States

WA 

Note: Vertical line indicates year in which Minnesota enacted sentencing guidelines. 


Sources: Bureau of Justice Statistics. Sourcebook of Criminal Justice Statistics–1992. NCJ 143496. Washington, DC: U.S. Department of Justice, 

Office of Justice Programs. 1993. See also Bureau of Justice Statistics. Prisoners. Washington, DC: U.S. Department of Justice, Office of Justice 

Programs. 1992, Table 2; 1993, Table 1. 

B B B B

B B B B B B B B B B B B B B

B B B

B B

I I I I I I I I I I

I

I

I I

I

I I I

I

I

I

I I

71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93

0

20

40

60

80

100

120

140

160

Number

Year

B Minnesota I Comparison States

MN 
104

Bureau of Justice Assistance

design capacity of the system. However, in some instances, States have

reported the same figure for both lowest and highest bed capacity. 46

Figure 6–6 reports the crowding ratios (prison population divided by prison

capacity) for the four guideline States since 1983 (ratios above 100 reflect a

crowding situation). Here again there are important differences among the

four States. Pennsylvania, which did not require the guidelines to take capacity into account, has had the worst overcrowding problem; its prison population has always exceeded its prison capacity, starting at 122 percent and

climbing to approximately 150 percent.

Prison crowding in Washington has fluctuated along with its prison population due to its guidelines, two State supreme court decisions, and numerous

amendments to the SRA that increased penalties. As indicated earlier, there

was a considerable drop in the inmate population during the first few years

of the SRA up through 1988. Supreme court decisions and the guidelines

allowed many inmates to serve shorter prison terms or no terms at all. Consequently, Washington had excess capacity and became well known throughout the Nation as a State with excessive capacity that would rent cells to other

States to keep its prisons full and make money. However, since 1988, as the

long-term effects of its sentencing guidelines have taken hold, and its prison

population has grown, Washington’s crowding situation has worsened. This

trend is expected to continue to deteriorate over the next decade. Furthermore, the Washington State Guidelines Commission noted that jail crowding

has worsened under the guidelines and has concluded that the objective of

making “frugal use of the State’s resources” has not been met. 47

Florida has succeeded in keeping its prison system from overcrowding,

despite its sentencing guidelines. As noted earlier, a court order that later

became law required that the prison population not exceed bed capacity. As

a result, the system remained uncrowded because pressures created by the

guidelines and mandatory minimum sentencing laws were offset by a massive

early release program. 48

Only Minnesota has been able to provide adequate capacity for its prison

inmates over a sustained period of time. However, as the prison population

began to exceed its rated capacity beginning in 1991, its early success seemed

46. From a prison management perspective, relying on the highest capacity figure may

understate the State’s crowding problem because prisons generally require reserve capacity

(5 percent) to operate efficiently and safely. For instance, prison dormitories and cells need

periodic maintenance and extra cells are needed for protective custody, disciplinary cases,

and other emergencies. Therefore, operating a prison at its highest capacity may already

indicate a crowding situation.

47. Washington State Sentencing Guidelines Commission. A Decade of Sentencing Reform:

Washington and Its Guidelines 1981–1991. Olympia, 1992.

48. Austin, J. Reforming Florida’s Unjust, Costly and Ineffective Sentencing Laws. San Francisco:

National Council on Crime and Delinquency. 1993.
 105

Monograph

Figure 6–6 Prison Population as a Percentage of Prison Capacity, 1983–1992:

Pennsylvania/Minnesota/Florida/Washington

Highest Capacity

B Pennsylvania E Minnesota H Florida A Washington

1983 1984 1985 1986 1987 1988 1989 1990 1991 1992

180

160

140

120

100

80

60

40

B

B B B

B

B

B B

B B

A A

A

A A

A

A

A

A

A

H H

H E E H H HH H H H E E E E E E E E

Source: Bureau of Justice Statistics, Prisoners 1983–1992. Percent

Year

Lowest Capacity

B Pennsylvania E Minnesota H Florida A Washington

1983 1984 1985 1986 1987 1988 1989 1990 1991 1992

180

160

140

120

100

80

60

40

Source: Bureau of Justice Statistics, Prisoners 1983–1992. Percent

B

B B BB

B

B B

B B

E E

E E E E

E E E E

H H

H

H H H H H H H

A A

A

A

A A

A

A

A

A

Year
106

Bureau of Justice Assistance

to wane. Moreover, Minnesota never had a prison crowding problem to be

solved. An earlier review by Austin pointed out that before guidelines were

enacted, Minnesota was not experiencing overcrowding:

Prior to the implementation of the guidelines, Minnesota’s prison

population had never exceeded its bed capacity and has traditionally reported one of the nation’s lowest state incarceration rates.

Due to a surplus of beds, the state has been housing several hundred inmates from Wisconsin and the Federal Bureau of Prisons

in their facilities since 1980. A new maximum security facility

(Oak Park Heights) was brought on line in 1983 which further

added capacity to the State prison system. Thus, in many ways, the

inclusion of prison capacity as a basis for setting guideline criteria

may have reflected a long standing Minnesota tradition to not

overcrowd its prisons regardless of sentencing structure. 49

Minnesota’s success in avoiding prison overcrowding, then, is not linked

solely to guidelines for two reasons. First, before guidelines were enacted, no

prison crowding problem existed. Second, since the guidelines were modified

significantly in 1989 to increase prison terms for certain offenses, incarceration rates have increased and the prison system has become more crowded.

These same modifications were made to appease a strong movement to

abolish the guidelines and institute mandatory minimum penalties—a movement that was barely defeated. The reform also created two discretionary

release programs under the control of the Department of Corrections that

threaten the new-found goal of “truth in sentencing.” 50

Figure 6–7 pools the results of Minnesota and Washington with the rest of the

Nation’s prison systems and shows little difference between guideline and

nonguideline States. The finding that guidelines by themselves are not a

sufficient condition for controlling prison crowding is clearly shown in

Table 6–7, which presents States that have prison populations below their

rated capacity. Of the 15 States listed, 5 are guideline States. Of the five

guideline States, two (Louisiana and Utah) have had voluntary/advisory

guidelines since 1992. Clearly, prison crowding can be controlled with or

without guidelines.

49. Austin, J. “The Use of Early Release and Sentencing Guidelines to Ease Prison Crowding:

The Shifting Sands of Reform.” Paper presented at the National Academy of Sciences

meeting on prison overcrowding, Chicago. 1986, pp. 45–46.

50. Dailey, D. “Minnesota: Sentencing Guidelines in a Politically Volatile Environment.” Federal

Sentencing Reporter 6(3)(1993), pp. 144–146.

. . . guidelines by

themselves are not a

sufficient condition for

controlling prison

crowding . . .
 107

Monograph

Highest Capacity

Lowest Capacity

Figure 6–7 Prison Population as a Percentage of Prison Capacity, 1983–1992

E Minnesota A Washington H National

1983 1984 1985 1986 1987 1988 1989 1990 1991 1992

140

120

100

80

60

Source: Bureau of Justice Statistics, Prisoners 1983–1992. Percent

E E

E E

E

E

E E

E

E H H H H H H H

H H

H

A A

A

A

A

A

A

A

A

A

Year

1983 1984 1985 1986 1987 1988 1989 1990 1991 1992

180

160

140

120

100

80

60

Source: Bureau of Justice Statistics, Prisoners 1983–1992. Percent

E E E E E E

E E E E

H H H H H H

H H H H

A A

A A

A

A

A

A

A

A

Year

E Minnesota A Washington H National
108

Bureau of Justice Assistance

Projected Prison Populations for Guidelines

States

To what extent will guideline States experience future prison population

growth and crowding? To answer this question, researchers examined prison

population projections that were available for seven different sentencing

guideline States and the Federal Bureau of Prisons. These population projections are the latest official forecasts of prison growth for each system (see

Figures 6–8 through 6–14).

Source: Bureau of Justice Statistics. Sourcebook of Criminal Justice Statistics—1992. NCJ–143496. Washington, DC: U.S. Department of

Justice, Office of Justice Programs. 1993.

State Sentencing Highest Lowest

Structure Capacity Capacity

Delaware Guidelines 99 136

District of

Columbia Indeterminate 95 121

Florida Guidelines 88 127

Georgia Indeterminate 100 100

Indiana Determinate 95 110

Kansas Indeterminate 91 91

Louisiana Guidelines 95 95

Mississippi Indeterminate 89 95

Missouri Indeterminate 100 104

Partial

New Mexico Determinate 95 99

North Carolina Indeterminate 98 114

North Dakota Indeterminate 81 81

Rhode Island Indeterminate 84 84

Tennessee Guidelines 94 99

Utah Guidelines 81 89

Table 6–7 States At or Below Rated Capacity: 1992
 109

Monograph

Figure 6-8 Bureau of Prisons Projected Prison Populations and Capacities

Source: Florida Department of Corrections 

B

B B B B

I

I I I I

1994 1995 1996 1997 1998

0

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

90,000

Number

Year

B Population I Capacity

Figure 6–9 State of Florida Projected Prison Population Versus Capacity

Source: Federal Bureau of Prisons 

B

B

B

B

B

B B B

B

I

I

I

I

I

I

I

I I

94 95 96 97 98 99 2000 2001 2002

50,000

60,000

70,000

80,000

90,000

100,000

110,000

120,000

130,000

140,000

Number

Year

B Population I Capacity
110

Bureau of Justice Assistance

Figure 6–10 State of Minnesota Projected Prison Population Versus Capacity

Figure 6–11 State of Oregon Projected Prison Population Versus Capacity

Source: Oregon Department of Corrections 

B B B B B B B B B B B B B B B

B B B B B B B B B B B B B B B B

IIIIII IIIIIIIIIIIIIIIIIIIII

IIII

Jan 93 Apr 93 Jul 93 Oct 93 Jan 94 Apr 94 Jul 94 Oct 94 Jan 95 Apr 95 Jul 95

6,000

6,500

7,000

7,500

8,000

Number

Month/Year

B Projected Population I Capacity

Source: Minnesota Department of Corrections 

B

B B B B B B B B

I

IIIIIIII

94 95 96 97 98 99 2000 2001 2002

0

1,000

2,000

3,000

4,000

5,000

6,000

Number

Year

B Population I Capacity
 111

Monograph

Figure 6–12 State of Pennsylvania Projected Prison Population Versus Capacity

Source: Pennsylvania Department of Corrections 

B

B

B

B B B B B B

I

I I

IIIIII

92 93 94 95 96 97 98 99 2000

0

5,000

10,000

15,000

20,000

25,000

30,000

35,000

Number

Year

B Population I Capacity

Figure 6–13 State of Tennessee Projected Prison Population Versus Capacity

Source: Tennessee Department of Corrections 

B

B

B B B B

I

I I III

94 95 96 97 98 99

10,000

11,000

12,000

13,000

14,000

15,000

16,000

17,000

18,000

19,000

20,000

Number

Year

B Population I Capacity
112

Bureau of Justice Assistance

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

each jurisdiction are as follows:

■ The population of the Federal Bureau of Prisons is projected to increase

by 22,546 inmates from 1995 to 1999 and by 33,635 inmates by the year

2002. The Federal system is projected to decrease the level of overcrowding by increasing its bed capacity by 37,714 beds from 1995 to 1999 and

by 52,500 beds for the year 2002. Nonetheless, the Federal system will

have 4,657 fewer beds than required by the year 2002.

■ Florida is projected to have 83,802 inmates by 1998 from its projected 1995

population of 74,669. However, its bed capacity is projected to reach only

59,556 in 1998, resulting in a shortfall of 24,246 beds.

■ Minnesota’s prison population will grow to 5,848 inmates in the year 2002,

but the State will have a capacity of only 4,105 beds. Unless substantial

increases are made to the State’s bed capacity, Minnesota will soon break

its long tradition of being uncrowded.

■ North Carolina’s prison population is projected to increase from 24,968 inmates in 1995 to 32,084 inmates by the year 2003. The 1995 capacity of

Figure 6–14 State of Washington Projected Prison Population Versus Capacity

Source: Washington State Office of Financial Management, Washington State Department of Corrections 

B

B

B

B

B

B

B

IIIIIII

94 95 96 97 98 99 2000

0

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

Number

Year

B Population I Capacity
 113

Monograph

24,136 beds is projected to increase to 28,247 beds by 1997 and remain

constant, resulting in a bed shortage of 3,837 in the year 2003.

■ The prison population in Oregon is projected to grow from 6,555 in

October 1993 to 7,333 inmates in July 1995.

■ Pennsylvania is anticipating prison population growth from 29,667 in 1995

to 33,154 by the year 2000. The projected bed capacity for the same year

is 24,910, resulting in a shortfall of 8,244 beds.

■ The prison population for Tennessee will grow from 14,571 inmates in

1993 to 17,328 in 1996. The projected capacity will be 15,979 in 1996,

creating a shortfall of 1,349 beds.

■ Washington’s prison population is projected to grow from 10,683 in 1994

to 14,121 inmates by the year 2000. Unless more bed capacity is planned

and constructed, there will be a shortfall of 2,528 beds.

At least two of these guideline States have been forced to use early release

programs in the past to relieve overcrowding. As indicated earlier, Florida

has a program called Controlled Release. Although a number of legislative

restrictions keep many inmates from being released early, the program

awards credits to some inmates on a discretionary basis to accelerate release

dates and thereby reduce lengths of stay. Tennessee reduces time served by

using a Safety Valve program that reduces lengths of stay until first parole

eligibility. 51

In summary, unless prison capacity is increased significantly or current

sentencing laws are modified, guideline States will be forced either to live

with overcrowded facilities or implement early release programs that invariably preclude achieving the objective of reducing disparity (Figure 6–15).

However, it can be argued that these trends would have been far worse had

guidelines not been in place. Although there are no published studies to

verify this claim, data provided by the North Carolina sentencing commission

(Figure 6–16) show that, without guidelines, the State’s future crowding

problem would be far greater.

Impact on Public Safety and Crime Rates

The issue of whether sentencing guidelines (or other forms of structured

sentencing) should result in reduced crime rates remains somewhat controversial. Certainly, a number of State guideline systems promote public safety

as one of the purposes of sentencing. How sentencing commissions define

public safety and incorporate it into their guideline systems, however, may be

quite different from how public safety is understood by legislative bodies and

the general public. For example, some argue that removing violent offenders

51. Only inmates granted parole will benefit from the Safety Valve Program because the

sentence discharge date is not affected.

At least two of the

guideline States have

been forced to use

early release programs

in the past to relieve

overcrowding.
114

Bureau of Justice Assistance

Figure 6–15 Total Projected Prison Population Versus Capacity of Selected Sites

Note: Selected sites include Bureau of Prisons, Florida, Minnesota, North Carolina, Pennsylvania, Tennessee, and Washington. 

B

B

B

B

B

I

I

I I

I

95 96 97 98 99

200,000

220,000

240,000

260,000

280,000

300,000

320,000

Number

Year

B Population I Capacity

Figure 6–16 North Carolina Projected Prison Population

0

10,000

20,000

30,000

40,000

50,000

60,000

Structured Sentencing Current Practice 1980's Practice

 '95 '96 '97 '98 '99 '00 '01 '02

✱❙

✱

❙

✱

❙

✱

❙

✱

❙

✱

❙

✱

❙

✱

❙

❙ ✱

By June 30: By June 30
 115

Monograph

from the community increases public safety; others argue that targeting

violent offenders or those likely to commit multiple offenses for long prison

terms reduces the crime rate and therefore increases public safety.

Sentencing commissions argue that although guidelines can identify offenders

who pose the greatest threat to society and provide sufficient penalties to

remove them from society for long periods of time, sentencing is one of the

final stages in a complex criminal justice system and should not shoulder the

burden for reducing crime rates. Decisions at the reporting, arrest, charging,

and plea bargaining stages play equally important roles in determining

whether crime rates will change.

Despite politicians’ hopes that sentencing reform, and in particular the increased use of incarceration through sentencing, will reduce crime, 52 States

should not be lulled into the belief that this reform can solve the crime

problem or even necessarily reduce State crime rates. By selectively incapacitating those offenders who pose the greatest threat to society, some crimes

may be averted and public protection enhanced. Generally, States with

guidelines strive to ensure public safety by targeting violent and career offenders for lengthy prison stays. However, no State has formally claimed that

guidelines will measurably reduce crime rates or set as one of its guideline

goals the reduction of crime rates.

The attempt to link crime reduction to sentencing structure is further weakened by the realization that guidelines tend to discriminate among offenders

for sentencing dispositions based on two factors unrelated to criminal careers.

The first-time youthful offender is likely to receive a very brief period of

incarceration even though that person poses a far greater risk to public safety

because of age, sex, employment, marital status, education, drug use, and

residence, factors unrelated to criminal careers but not incorporated in the

guidelines. At the same time, an older offender with a long history of arrests

and convictions is more likely to receive a far longer prison term even though

that person is now “burning out” of his/her criminal career. Such a sentencing

policy will fill a State’s prison system with less risky and older inmates, thus

diminishing possible incapacitation and subsequent crime effects.

In his recent study of Federal prisoner recidivism rates, Harer points out that a

significant portion of drug offenders, who are now receiving far longer prison

terms under the mandatory minimum sentencing guidelines for drug offenses,

are very low risks to public safety. He questions these lengthy mandatory

prison terms as an effective crime control strategy.

. . . [I]t does seem clear that by imposing longer sentences on

low-risk drug traffickers, there has been a substantial increase in

retribution with little, if any, reduced sentencing disparity, or

52. Harer, M.D. Recidivism Among Federal Prison Releases in 1987: A Preliminary Report.

Washington, DC: Federal Bureau of Prisons. 1994. See also Irwin, J., and J. Austin. It’s

About Time: America’s Imprisonment Binge. Belmont, CA: Wadsworth Publishing. 1993.

See also Note 35.

Sentencing commissions argue that . . .

sentencing is one of

the final stages in a

complex criminal

justice system and

should not shoulder the

burden for reducing

crime rates.
116

Bureau of Justice Assistance

53. Note 52, p. 117.

increased incapacitation, deterrent, or rehabilitation value and a

huge increase in taxpayer dollars spent. 53

Because sentencing policies deal with a small subset of those who enter the

criminal justice system, increases in incarceration are likely to affect crime

rates only marginally. Consequently, the influence of sentencing guidelines

on crime rates is extremely limited. It may be useful to demonstrate this

limited influence by examining the relationship between adoption of sentencing guidelines and changes in crime rates. Although such an examination

cannot attribute a causal relationship, it may illuminate the degree to which

any sentencing reform can reliably affect crime rates.

Figure 6–17 shows crime rates for four guideline States: Minnesota, Pennsylvania, Washington, and Florida. These States were selected based on the

same criteria as described in the previous section. The crime measures used

were extracted from the Uniform Crime Reports (UCR), which include eight

crime categories reported by the public to the police and tabulated by

the FBI. Violent crime, as defined in the UCR, is composed of four offenses:

murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault. The other major crime category, property crime, includes

burglary, larceny-theft, motor vehicle theft, and arson. The rates described in

this analysis are based on the number of crimes per 100,000 total population.

As shown in Figure 6–17, Minnesota and Pennsylvania had lower crime rates

than Washington and Florida. Between 1970 and 1980, crime rates increased.

Since then, crime rates have remained relatively constant or have declined

slightly. In general, these trends are similar to national trends. The dip in

crime rates from 1980 to 1983 was similar for all guideline States even though

they implemented guidelines in differing years. After years of steady increase

starting in 1983, Washington has experienced a moderate decline since 1987,

the year it implemented its guidelines.

Comparisons of total crime rates between guideline and nonguideline States

that had similar crime rates show few differences (Figure 6–18). As shown in

Figures 6–19 and 6–20, the slight increase after 1983 for the guideline States is

wholly attributable to Florida (total and violent crime rates) and Minnesota

(violent crime rates only).

As expected, this analysis suggests that the adoption of guidelines or other

sentencing models has had little measurable impact on overall crime rates.

This lack of impact, however, should not be viewed as a failure of sentencing

reforms or guidelines.

With improved reliability in State sentencing information during and following guideline implementation, States are better able to identify those violent

and career criminals who invoke the greatest fear and to focus scarce correctional resources on those offenders.

. . . this analysis

suggests that the

adoption of guidelines

or other sentencing

models has had little

measurable impact on

overall crime rates.
 117

Monograph

Figure 6–17 Annual Changes in Total Crime Rates: Pennsylvania/Minnesota/Florida/

Washington/National,1970–1992

Figure 6–18 Annual Changes in Total Crime Rates: Guideline Versus Comparison States

Note: Vertical lines indicate year in which each State enacted sentencing guidelines.


Source: Federal Bureau of Investigation. Uniform Crime Reports for the United States. Washington, DC: U.S. Department of Justice. 1970–1992. 

B B

B

B

B

B B B

B

B B

B

B B

B

B B B B B B B

I I

I

I

I I I I

I

I I

I

I I I I I I I I I I

71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

0

1,000

2,000

3,000

4,000

5,000

6,000

Number

Year

B Guideline States I Comparison States

MN PA FL WA 

Note: Per 100,000 total population. Vertical lines indicate year in which State enacted sentencing guidelines.


Source: Federal Bureau of Investigation. Uniform Crime Reports for the United States. Washington, DC: 1970–1992. 

B B B

B

B B B B B B B B B B B B B B B B B B B

E E E

E

E E E E E E

E E E

E E E E E E E E E E

H

H H

H

H H

H H H

H

H H

H

H H

H

H H

H H H H H

A A A

A

A A A A

A

A

A A

A A A

A A A A

A A A A

2 2

2 2

2

2 2 2 2

2

2 2 2

2 2 2 2 2 2 2 2 2 2

70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

0

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

9,000

Number

Year

B Pennsylvania E Minnesota H Florida A Washington 2 National

MN PA FL WA 
118

Bureau of Justice Assistance

Figure 6–19 Annual Changes in Total Crime Rates: Florida Versus Comparison States

Source: Federal Bureau of Investigation. Uniform Crime Reports for the United States. Washington, DC: U.S. Department of Justice. 1970–1992. 

B B

B

B B

B B B

B

B B

B

B B

B

B B

B B B B B

J J

J

J J J J J J J J

J

J J J J J J J J J J

71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

0

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

9,000

10,000

B Florida J Comparison States

FL 

Source: Federal Bureau of Investigation. Uniform Crime Reports for the United States. Washington, DC: U.S. Department of Justice. 1970–1992. 

B B B B

B B B B

B

B

B B

B

B B

B

B B

B B

B

B B

G G G G

G G G G G

G

G G

G

G G G

G G G G G G G

H H H H H H H H H H H H H H H H H H H H H H H

C C C C C C C C C C C C C C C C C C C C C C C

70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

0

200

400

600

800

1,000

1,200

1,400

Nunber

Year

B Florida G Comparison States H Minnesota C Comparison States

MN FL 

Figure 6–20 Annual Changes in Violent Crime Rates Number Number
 119

Monograph

Summary

This chapter has examined the available evidence regarding the impact of

guidelines on disparity, plea bargaining, incarceration rates, prison growth,

prison overcrowding, and crime rates. For those States that have conducted

evaluations, clear evidence exists that guidelines have succeeded in changing

historic sentencing patterns. The probability of prison and the length of

imprisonment have increased for persons convicted of violent crimes and/or

repeat offenders but have decreased for persons convicted of property

crimes. Following is a summary of the general findings contained in this

chapter.

Sentencing Disparity

While a number of methodological problems exist in evaluating the impact

of guidelines on disparity, those States that have examined disparity show

improvement under the guidelines. Compliance rates are high, and substantial

evidence suggests that sentencing disparity has been reduced in States with

guidelines. However, the growing frequency of departures and potential

increased reliance on mandatory minimum penalties may threaten those

gains in disparity reduction.

Plea Bargaining

Limited research and anecdotal evidence indicate that guidelines have not

increased charge bargaining and, contrary to some expectations, have not

shifted sentencing discretion to prosecutors. Evidence suggests, however, that

mandatory minimum penalties produce greater charge bargaining, increased

prosecutorial discretion, and hidden disparities, particularly among racial and

ethnic groups.

Imprisonment Rates

States with guidelines have significantly increased their incarceration rates

as have all other States. However, the growth in imprisonment rates was far

lower for the two States (Minnesota and Washington) that had established

guidelines with the goal of managing prison populations. Consequently,

evidence indicates that guidelines can have a moderating effect on the use

of imprisonment if they are designed to accomplish that end.

Prison Overcrowding

Guideline States, like most other States, have experienced significant prison

overcrowding. Only Minnesota and Florida have had some success in keeping prison crowding under control, possibly because of factors beyond

sentencing guidelines. By statute, Florida must provide sufficient bed capacity

in its prisons, and Minnesota had no overcrowding problem at the time its

For those States that

have conducted

evaluations, clear

evidence exists that

guidelines have

succeeded in

changing historic

sentencing patterns.
120

Bureau of Justice Assistance

guidelines were implemented. In general, guideline systems attempt to regulate prison population at the front end through determinate sentencing policies rather than at the back end through discretionary release. Each State must

decide on the purposes of sentencing; however, without some attention to

prison overcrowding, the elimination of parole and other discretionary release

mechanisms likely will result in serious prison overcrowding.

Prison Populations

As in the rest of the Nation, prison populations are projected to grow in

States with sentencing guidelines. To avoid overcrowding, these States will

have to add more prison capacity or adjust their guidelines to reduce prison

lengths and/or prison admissions. Without these changes, overcrowding

conditions probably will continue, and some States may be forced to

reintroduce discretionary release practices.

Crime Rates

Although no guideline State suggests that its sentencing structure reduces

crime rates, some proponents of structured sentencing hope for a beneficial

impact on crime. This limited analysis finds no evidence that guidelines or

other forms of structured sentencing have measurably reduced crime rates.

Few differences in crime rates exist between guideline and nonguideline

States. Under guidelines, however, States attempt to provide greater public

safety through sentencing policies tailored to ensure that violent and career

offenders are more likely to be incarcerated and incarcerated for longer

periods of time.

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

reform, concluded:

Some commissions have operated much as Judge Frankel hoped

they would; they have achieved and maintained specialized institutional competence, have to a degree insulated sentencing policy

from short-term “crime of the week” political pressures, and have

maintained a focus on comprehensive systemwide policy making.

Guidelines promulgated by commissions have altered sentencing

patterns and practices, and have shown that policies can be linked

to correctional and other resources, thereby enhancing governmental accountability and protecting the public purse. 54

Simply stated, the success of guidelines depends on their design, purpose,

and implementation. Guidelines will not solve all the problems of dispensing

justice and reducing crime. As this chapter shows, however, some guideline

54. Note 1.

. . . the success of

guidelines depends on

their design, purpose,

and implementation.
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Monograph

systems have been instrumental in altering sentencing policies, setting

resource priorities, reducing disparity, and helping to manage prison

populations.

It is important to note the relative absence of research on these important

topics. The lack of rigorous studies that employ pre- and postguideline

samples of disparity is striking. Only three States and the USSC have provided

the field with such studies. Given the high priority that States place on reducing unwarranted disparity and given the fact that many States are adopting

guideline systems, now is the time to launch a series of such studies.

A related need is to conduct more comprehensive studies on whether guidelines have altered plea bargaining practices and whether they enhance the

influence of prosecutors by shifting discretion from the courts to the prosecution. Such studies should consist of both quantitative and qualitative methods

(interviews and observations of the plea bargaining process) to determine

whether disparity has been reduced throughout the entire system or has

simply been displaced. The growing number of African-Americans and

Hispanics being incarcerated also needs to be addressed in terms of whether

guidelines and/or mandatory minimum penalties are contributing to racial

disparity at the points of charging and sentencing.

Finally, studies are required to document the extent to which the attributes of

the prison and nonprison populations have been altered and the consequences of such changes on prison management. If guidelines result in

nonviolent offenders’ receiving very short or no prison terms while violent

and repeat offenders are incarcerated more frequently and for longer periods

of time, prison populations will look very different in the future. How these

changes will affect the number and type of prison beds, along with the need

for special housing units and services (medical, administrative segregation,

and protective custody populations), needs to be understood.

It is important to note

the relative absence of

research on these

important topics.
122

Bureau of Justice Assistance
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Monograph

he past decade has brought significant activity in sentencing reform.

Most States have instituted reforms to increase the certainty of sentencing decisions by adopting mandatory sentencing provisions, more sweeping

determinate sentencing, or sentencing guideline systems (either voluntary/

advisory or presumptive).

The impetus for many of these reforms has been the need to control sentencing disparity, increase truth in sentencing, and control correctional population

growth. These reforms enable States to establish an overall policy on sentencing goals and to limit their investment in incarceration facilities. In view of

the trend toward sentencing commissions over the past 15 years and the

projected growth of prison populations, continued interest in structured

sentencing models is likely.

This report summarized the nature and results of this reform movement.

This closing chapter summarizes the major findings and policy implications

for how structured sentencing reforms may proceed in the future.

Major Findings

Current Sentencing Practices

■ An unprecedented flurry of structured sentencing reforms has occurred

over the past two decades. The Federal Government and 16 States have

implemented or are implementing either presumptive or voluntary/advisory sentencing guidelines. Another five States have adopted determinate

sentencing systems.

■ Another popular form of structured sentencing is mandatory minimum

sentencing laws. All States have some version of these laws, which target habitual offenders (“three strikes and you’re out”) and the crimes

of possession of a deadly weapon (“use a gun—go to prison”), drunk

driving, and possession and distribution of drugs.

■ Most States continue to allow inmates to earn good-time credits either to

reduce the inmate’s sentence or to advance the inmate’s parole eligibility

date.

T

Chapter 7

Summary

The impetus for many

of these reforms has

been the need to

control sentencing

disparity, increase truth

in sentencing, and

control correctional

population growth.
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Bureau of Justice Assistance

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

those that have adopted determinate and sentencing guideline models,

retain some form of discretionary release and postrelease supervision.

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

most States do not use sentencing guidelines. Furthermore, five States

have tried and failed to adopt sentencing guidelines.

Sentencing Guideline Models

The purposes, structures, requirements, and impacts of sentencing guidelines

are summarized in the following paragraphs:

Purposes and Goals.

■ Virtually all guideline commissions were asked to fulfill the multiple goals of

punishment (“just deserts”), deterrence, incapacitation, and rehabilitation.

■ Few jurisdictions explicitly stated the goal of establishing sentencing

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

■ Only a few guideline commissions were required to consider the impact

of the guidelines on the need for future correctional resources (i.e., prison

beds).

Structure of Sentencing Guidelines and Sentencing Commissions.

■ The structure of sentencing guidelines varies dramatically in the criteria

used to determine sentencing disposition and sentence length.

■ The most common format for guidelines is a matrix that relies on two

variables: offense severity and prior criminal history.

■ The number and type of members selected for the sentencing commission

vary considerably, with no apparent advantage to either a large or small

number of members.

■ In general, membership includes judges, prosecutors, defense attorneys,

and private citizens. Corrections officials, legislators, and law enforcement

officials are also often members of these commissions.

Implementation Issues.

■ The process for implementing guidelines is neither quick nor inexpensive,

often requiring 2 years to complete.

■ Before guidelines are implemented, detailed data on current sentencing

patterns need to be collected and analyzed. A jurisdiction will also need

a simulation model to estimate the impact of the proposed guidelines on

prison, parole, probation, and jail populations.

The structure of

sentencing guidelines

varies dramatically in

the criteria used to

determine sentencing

disposition and

sentence length.
 125

Monograph

■ The annual budget for guideline commissions and support staff ranges

from $250,000 to $500,000. Considerable support is required to monitor

and analyze compliance with the guidelines and to project the impact of

modifying them.

Impact of Sentencing Guidelines.

■ States that have implemented presumptive guidelines have reported high

compliance rates and have succeeded in changing historical sentencing

trends.

■ In general, offenders convicted of violent crimes or repeat offenders are

far more likely to be imprisoned and to serve longer prison terms under

sentencing guidelines. Conversely, first-time offenders charged with

property crimes are less likely to be imprisoned and generally serve

shorter prison terms.

■ Partly because of guidelines, persons convicted of drug crimes (both

possession and sale) are now far more likely to be imprisoned and to

serve lengthy prison terms. This trend has directly increased the rate

of imprisonment for African-American and Hispanic offenders.

■ Guidelines have helped reduce sentencing disparity, but disparity

reductions have eroded somewhat over time.

■ Limited evidence indicates that guidelines designed to take correctional

resources into account have lowered rates of growth in incarceration

and have helped to control prison crowding. However, prison crowding

remains a problem for most States.

■ Guideline States, like nonguideline States, will probably have overcrowded prisons over the next decade unless they embark on substantial prison

construction programs or reduce prison terms for violent and drug

offenders.

Policy Implications

Reducing Disparity While Maintaining Discretion

A jurisdiction’s decisions about its criminal justice laws will have a major

impact on the quality of justice and the costs to its citizens. Unless structured

by law or a commission, these decisions are left to individual judges who

must determine not only what they perceive as just sentences, but also the

best use of State and local correctional resources. The major question is

whether the technology of structured sentencing, and presumptive sentencing

guidelines in particular, can overcome well-established organizational values

that may facilitate and protect inequitable sentencing practices.

One area of concern is the ability to individualize sentencing and consider a

wide range of sentencing purposes while maintaining an equitable sentencing

A jurisdiction’s

decisions about its

criminal justice laws will

have a major impact on

the quality of justice

and the costs to its

citizens.
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Bureau of Justice Assistance

system. Most States have attempted to control the individualization of judicial

practices while also maintaining that sentences should consider the full range

of traditional sentencing purposes.

Pennsylvania and Washington provide the most explicit examples of this

effort to structure sentencing while maintaining adequate court discretion to

fashion sentences to individual offenders. Pennsylvania requires judges to

consider offenders’ rehabilitative potential and community protection as well

as the guidelines. In Washington, the enabling legislation mandates that the

guidelines incorporate multiple goals of retribution, incapacitation, rehabilitation, and frugal use of correctional resources.

Recent innovations in Louisiana and Oregon have expanded the range of

sentencing options and allowed more commensurate punishments. This new

approach, which illustrates that sentences can be very different yet equal, is

an important move in the evolution of sentencing guidelines. Building on

these innovations, other commissions may develop guidelines that will increase fairness, equity, and proportionality and still provide for a full range

of sentencing options.

Displacement of Discretion

As noted earlier, one of the key issues involved in the attempts to control

sentencing discretion is the displacement of discretion from the court to the

prosecutor. One must be concerned that guidelines have merely shifted

discretion from parole boards, prison officials, and judges to prosecutors.

Unfortunately, little systematic evidence exists to document the extent to

which this has occurred. Clearly, research is needed in this area of sentencing reform.

Prison Crowding

To date structured sentencing reforms have not demonstrated any appreciable

effects on prison crowding. This is not to say that they could not have such

an impact in the future. However, until the legislators and sentencing commissions become immune to “get tough on crime” pressures there is little

reason to believe that structured sentencing models will solve the prison

crowding problem.

Moreover, as State prisons remain crowded, they will continue to use discretionary early release programs. Depending upon how such programs are

structured, they may interfere with the goal of reducing disparity in time to

be served by similarly situated offenders.

Recommendations1

The purpose of this project was not to advocate one particular form of sentencing policy, whether it be presumptive guidelines, voluntary/advisory

guidelines, determinate sentencing, or indeterminate sentencing. Any number

1. The recommendations in this section are those of the Advisory Board.

To date structured

sentencing reforms

have not demonstrated

any appreciable effects

on prison crowding.
 127

Monograph

of sentencing reform measures can reduce disparity, incarceration rates,

and prison crowding. The question is how best to achieve these goals.

The most promising structured sentencing model to address these issues is

sentencing guidelines developed by sentencing commissions. Sentencing

guidelines have helped States set overall policies as to the goals of sentencing

and, in some instances, to set limits on what they are willing to invest in

prisons. In view of the strong move toward sentencing commissions and the

continued growth of prison populations, it is likely that there will be continued interest in the use of sentencing guidelines. Despite this endorsement

of the guideline approach, a note of caution is warranted. This report has

provided examples where guidelines did not improve the quality of justice.

Simply stated, guidelines may or may not work depending on how they are

designed and implemented, and for what purposes. Importantly, one should

not expect guidelines to solve all of the problems regarding the dispensation

of justice and the reduction of crime.

The following policy recommendations from the Advisory Board are offered

for States to consider in developing structured sentencing policies:

■ Commission representation participation. Broad participation in the

guideline process is desired as it cultivates commitment to the promulgated guidelines and improves their quality.

■ Resources. Adequate financial support is necessary if a commission is to

study past sentencing practices in the State, study what other States have

done, prepare reports and proposals for the commission to consider, pay

for the commission to meet regularly, hire consultants when necessary,

provide ongoing feedback to the court and other governmental agencies,

and monitor and evaluate the impact of guidelines.

■ Ongoing monitoring and support. Commissions that have successfully

implemented guidelines have realized increases in budget and in staff

size in the postimplementation years. This is due to continually increasing

responsibilities imposed on the commissions by the legislature and the

cost of maintaining and evaluating guidelines.

■ Appellate review. Without an enforcement mechanism, guidelines are

merely voluntary/advisory and as such may have little impact on changing

sentencing practices. The common procedure is to provide for appellate

review and for the appellate review to be initiated by either the defense

or prosecution.

■ Mandatory minimum sentences. It is clear from the experiences of

many States that the increased use of mandatory minimum penalties is

interfering with achievement of the dual goals of reducing disparity and

controlling correctional population growth. A State should resist such

provisions if they affect large proportions of its sentenced population.

. . . guidelines may

or may not work

depending on how they

are designed and

implemented, and for

what purposes.
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Bureau of Justice Assistance

■ Controlling the use of departures. The extent to which subjective

factors are used to depart from the guidelines will have much to do with

meeting the goal of reducing unwarranted disparity. States should specify

as much as possible the type of departures that are acceptable. Moreover,

commissions should carefully monitor the frequency and direction of

departures by, among other things, crime category, race, and gender.

■ Role of the Federal Government. States that have recently adopted or

are interested in adopting guidelines require assistance and guidance.

In particular, the Federal Government can play an important role by providing a modest amount of assistance to States by the following actions:

❏ Establish and maintain a national clearinghouse on structured

sentencing.

❏ Convene annual meetings of State sentencing commissions to share

information and research findings.

❏ Establish a funding program to assist States in technologies necessary

to support the development or modification of existing sentencing

structures. Assistance is especially required in the following areas:

— Conducting comprehensive studies of existing sentencing

practices that can be used to guide States in the formulation

of new sentencing structures.

— Developing new methods or providing training to States in existing

analytic methods for measuring disparity.

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

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

— Developing and improving methods of designing and pilot-testing

sentencing guideline methods.

Finally, more research is needed to assess whether guidelines and other

forms of structured sentencing are reducing sentencing disparity. As indicated

above, a number of States have implemented, or are about to implement,

sentencing guidelines. Independent process evaluations and impact evaluations of these new structured sentencing reforms would be valuable to the

field.

A better understanding is also needed concerning the effect of reforms external to the guidelines on sentencing disparity, especially along racial lines.

Topics to be addressed include the impact of mandatory minimum provisions

for certain drug crimes on disparity and the effect of guidelines on shifting

discretion from the courts to the front end of the system (arrest, charging, and

plea bargaining). Such studies will help clarify how best to correct undesirable and unequal sentencing practices.

The extent to which

subjective factors are

used to depart from

the guidelines will have

much to do with

meeting the goal of

reducing unwarranted

disparity.
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Monograph

Sources for Further Information

For more information on Structured Sentencing, contact:

Bureau of Justice Assistance

633 Indiana Avenue NW.

Washington, DC 20531

202-514-5947

Bureau of Justice Asistance Clearinghouse

Box 6000

Rockville, MD 20849-6000

800-688-4252

National Council on Crime and Delinquency

1325 G Street, Suite 1020

Washington, DC 20005

202-638-3080
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Monograph

Sentencing guideline States selected for analysis and the years of

pre- and postcomparison were as follows:

Minnesota, 1980; Pennsylvania, 1982; Florida, 1983; Washington

State, 1984. Although Washington’s law was adopted in 1983, it was

not fully implemented until 1984.

The nonguideline States selected as comparison for each of the four guideline

States (for each of three categories) were as follows:

Violent Crime Rates

Minnesota: Maine, Montana, Nebraska, Idaho

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

Rhode Island

Florida: Nevada, California, Maryland

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

Alabama

Total Crime Rates

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

Louisiana, Kansas

Pennsylvania: Arkansas, Nebraska, New Hampshire, Kentucky

Florida: California, Arizona, Nevada, Colorado

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

Incarceration Rates

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

Louisiana, Kansas

Appendix A

Information on States Used for Impact

Analysis
138

Bureau of Justice Assistance

Pennsylvania: Utah, Vermont, Maine, Rhode Island, West Virginia, Iowa,

Connecticut, South Dakota

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

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

Alaska
U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Assistance

Washington, D.C. 20531

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