National Assessment of Structured Sentencing. MENU TITLE: Structured Sentencing Monograph Series: BJA Published: February 1996 136 pages 288,437 bytes National Assessment of Structured Sentencing February 1996 NCJ 153853 This document was prepared by the National Council on Crime and Delinquency, supported by grant number 92-SA-CX-0003 awarded by the Bureau of Justice Assistance, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. Bureau of Justice Assistance 633 Indiana Avenue NW., Washington, DC 20531 U.S. Department of Justice Response Center 800-421-6770 Bureau of Justice Assistance Clearinghouse 800-688-4252 Bureau of Justice Assistance Internet Address http://www.ojp.usdoj.gov/BJA The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. ------------------------------ Foreword With the incidence of violent crime continuing to rise and public demands for harsher and more certain punishment increasing, many States are examining sentencing of offenders with an eye to instituting reforms. Indeed, considerable reform of criminal justice sentencing has already taken place over the past two decades. Although these reforms have come primarily as a response to criticism of rehabilitation attempts, they have sought to accomplish widely differing goals, including reducing disparity that results from discretionary sentencing, increasing sentencing fairness, establishing truth in sentencing, and balancing sentencing policy with limited correctional resources. To meet these goals, sentencing reforms have taken a variety of forms, and many States have adopted a combination of sentencing schemes that can include determinate or indeterminate sentencing, mandatory minimum sentences for certain offenses, presumptive sentencing guidelines, and voluntary or advisory sentencing guidelines. The result is a patchwork of structured sentencing models. This monograph presents the findings of the first national assessment of sentencing reforms, which was funded by the Bureau of Justice Assistance and conducted by the National Council on Crime and Delinquency, the Pennsylvania Commission on Crime and Delinquency, and the Pennsylvania Commission on Sentencing. The publication offers lessons learned in the diverse efforts to structure sentencing over the past two decades. These lessons are offered in the context of a historical perspective of sentencing practices used in the United States, with a discussion of the issues that led to the structured sentencing movement. They are based on a national survey of existing sentencing practices in the 50 States and the District of Columbia. The Federal Government and 16 States have implemented presumptive or voluntary/advisory sentencing guidelines. Each of these States has established guidelines for different purposes, and most of them were asked to meet multiple goals, including punishment, deterrence, incapacitation, and rehabilitation. These purposes and goals influence nearly every aspect of the guideline development process. While sentencing guideline systems should be evaluated against their established goals, several factors affect their successful implementation: the political environment, legislative mandates, adequate funding, and the development of coherent sentencing policy. However, despite the lengthy and complex process of writing guidelines and the challenges of implementation, the existing sentencing commissions and their guidelines have succeeded in changing historic sentencing patterns. Structured sentencing also can deter potential offenders, incapacitate dangerous offenders, and ensure that offenders who are not dangerous receive fair and appropriate punishment. As prison populations continue to grow, interest in structured sentencing reforms also will increase. It is our hope that this assessment of structured sentencing reforms will be a valuable resource to those States considering the formation of sentencing commissions and the development of sentencing guidelines. ------------------------------ Acknowledgments The Bureau of Justice Assistance wishes to thank James Austin, Ph.D.; Charles Jones, J.D.; John Kramer, Ph.D.; and Phil Renninger of the National Council on Crime and Delinquency for their efforts in conducting this evaluation and compiling this report. In addition, BJA acknowledges the Advisory Board members: the Honorable Helen Corrothers, formerly of the U.S. Sentencing Commission; Donna Hunzeker of the National Conference of State Legislatures; Phyllis Newton of the U.S. Sentencing Commission; Judge Thomas W. Ross of the North Carolina Sentencing and Policy Advisory Commission; and Sandra Shane-DuBow of the Wisconsin Sentencing Commission. ------------------------------ Table of Contents Executive Summary Chapter 1. Introduction Structured Sentencing Definitions Focus of This Report Chapter 2. Historical Trends and Issues in Structured Sentencing Historical Developments Leading to Structured Sentencing The History and Nature of Structured Sentencing Reforms Chapter 3. An Overview of Current Sentencing Practices in the United States Mandatory Minimum Incarceration Sentences in the United States Currency of State Criminal Codes Use of Parole and Good Time Sentencing Commissions in the United States Chapter 4. Sentencing Commission Structures and Their Mandates Purposes of Reform Sentencing Commission Structure, Mandates, and Organization Political and Legal Context Summary Chapter 5. Writing Sentencing Guidelines Offense Seriousness Criminal History Other Factors Developing Sentencing Recommendations Summary Chapter 6. The Impact of Sentencing Guidelines Methodological Issues in Assessing Impact Impact on Sentencing Disparity Impact on Plea Bargaining Impact on Incarceration Rates Impact on Prison Crowding Projected Prison Populations for Guidelines States Impact on Public Safety and Crime Rates Summary Chapter 7. Summary Major Findings Policy Implications Recommendations Sources for Further Information Bibliography Appendix A: Information on States Used for Impact Analysis ------------------------------ Executive Summary Criminal justice sentencing has undergone considerable reform during the past two decades. Because of excessive sentencing disparity and criticisms of the rehabilitative ideal, many States have replaced indeterminate sentencing with structured sentencing schemes such as determinate sentencing, mandatory minimum penalties, and sentencing guidelines. Nevertheless, most States retain indeterminate sentencing structures while indicating interest in adopting such reforms. The criminal justice community has yet to develop a clear consensus on the goals of structured sentencing. The following lists the most frequently cited goals: o Increase sentencing fairness. o Reduce unwarranted disparity, either in the decision to imprison (dispositional disparity) and/or sentence length (durational disparity). o Establish truth in sentencing. o Establish a balance of sentencing policy with limited correctional resources. Structured sentencing reforms can be used to deter potential offenders and incapacitate dangerous offenders. Sentencing reforms can also be used to reduce the likelihood and length of imprisonment for the so-called non-dangerous offender. This study is a review of lessons learned over the past two decades in the diverse attempts to structure sentencing. It was funded by the Bureau of Justice Assistance (BJA) and jointly conducted by the National Council on Crime and Delinquency (NCCD), the Pennsylvania Commission on Crime and Delinquency (PCCD), and the Pennsylvania Commission on Sentencing (PCS). Structured Sentencing Definitions This examination of structured sentencing revealed at the outset that consensus is lacking regarding the meaning of sentencing guidelines, voluntary sentencing guidelines, presumptive guidelines, and advisory guidelines. Therefore, the first task in preparing this report was to establish the following definitions: o Determinate: Sentences of incarceration in which an offender is given a fixed term that may be reduced by good time or earned time. o Indeterminate: Sentences in which an administrative agency, generally a parole board, has the authority to release an offender and determine whether an offender's parole will be revoked for violations of the conditions of release. o Mandatory minimum: A minimum sentence that is specified by statute and that may be applied for all convictions of a particular crime or a crime with special circumstances (e.g., robbery with a firearm or selling drugs to a minor within 1,000 feet of a school). o Presumptive sentencing guidelines: Sentencing that meets the following conditions: (1) the appropriate sentence for an offender in a specific case is presumed to fall within a range of sentences authorized by sentencing guidelines that are adopted by a legislatively created sentencing body, usually a sentencing commission; (2) sentencing judges are expected to sentence within the range or provide written justification for departure; (3) the guidelines provide for some review, usually appellate, of the departure. Presumptive guidelines may employ determinate or indeterminate sentencing structures. o Voluntary/advisory sentencing guidelines: Recommended sentencing policies that are not required by law. Usually based on past sentencing practices, they serve as a guide to judges. The legislature has not mandated their use. Voluntary/advisory guidelines may employ determinate or indeterminate sentencing structures. Major Findings One major objective of this study was to conduct a national survey of sentencing practices to classify each State's primary sentencing systems. The results of this survey are summarized below. Current Sentencing Practices o An unprecedented number of structured sentencing reforms have taken place over the past two decades. To date, 16 States and the Federal Government have implemented, or are about to implement, presumptive or voluntary/advisory sentencing guidelines. Another five States have adopted determinate sentencing systems. o All States employ some version of mandatory minimum sentencing laws, which target habitual offenders and the crimes of possessing a deadly weapon, driving under the influence of alcohol, and possessing and distributing drugs. o Most States continue to allow inmates to earn good-time credits either to reduce a sentence or to advance a parole eligibility date. o Most States, including those that have adopted determinate and sentencing guideline models, have retained some form of discretionary release and postrelease supervision. o Most States do not employ sentencing guidelines. Furthermore, five States have tried and failed to adopt sentencing guidelines. Sentencing Guideline Models: Purposes and Goals o Virtually all guideline commissions were asked to meet the multiple goals of punishment (just deserts), deterrence, incapacitation, and rehabilitation. o Few jurisdictions explicitly state the goal of eliminating disparity with respect to race, gender, or social or economic status. o Only a few guideline commissions were required to consider the impact of guidelines on the need for future correctional resources (i.e., number of new prison beds). Structure of Sentencing Guidelines and Sentencing Commissions o The structure of sentencing guidelines varies dramatically for both assessing sentencing disposition criteria and determining sentence length. o The most common format for guidelines is the two-variable matrix, which relies on offense severity and prior criminal history. o Sentencing commission membership varies considerably in number and type of members selected. o In general, membership includes judges, prosecutors, defense attorneys, and private citizens. Corrections officials, legislators, and law enforcement officials are often included on these commissions. Implementation Issues o The process for implementing guidelines is neither quick nor inexpensive. Implementation often requires 2 years. o The annual budgets for guideline commissions and support staff range from $250,000 to $500,000. Considerable support is required to monitor and analyze compliance with guidelines and to project the impact of modifying guidelines. o Before guideline implementation, detailed data on current sentencing patterns should be collected and analyzed. A jurisdiction will also need to develop a simulation model for estimating the impact of the proposed guidelines on prison, parole, probation, and jail populations. Impact of Sentencing Guidelines o States that have implemented presumptive guidelines have reported high compliance rates and have changed historical sentencing trends. o Repeat offenders and offenders convicted of violent crimes are much more likely to be imprisoned and serve longer prison terms under sentencing guidelines. Conversely, first-time offenders charged with property crimes are less likely to be imprisoned and generally serve shorter prison terms. o Partly because of guidelines, persons convicted of drug crimes (possession and sale) are now much more likely to be imprisoned and serve lengthy prison terms. This trend has directly increased the rate of imprisonment for African-American and Hispanic-Latino/Latina offenders. o Guidelines have helped reduce sentencing disparity; however, disparity reductions have eroded somewhat over time. o There is limited evidence that guideline sentencing structures designed to account for correctional resources have had slower rates of growth in incarceration and helped to control prison crowding. However, prison crowding remains a problem for most States. o Guideline States, like nonguideline States, are likely to suffer from overcrowding over the next decade unless they embark on a substantial prison construction program or reduce prison terms for violent and drug offenders. Policy Implications Reducing Disparity While Maintaining Discretion The decisions that a jurisdiction must make about its criminal justice laws will have a major impact on the quality of justice and cost to its citizens. If laws or commissions do not make these decisions, then they are left to individual judges who must (1) determine what they perceive as just sentences and (2) determine the best use of State and local correctional resources. The major question remains: Can the development of structured sentencing, and presumptive sentencing guidelines in particular, overcome well-established organizational values that may facilitate and protect inequitable sentencing practices? One continuing concern is the ability to individualize sentencing and consider a wide range of sentencing purposes while maintaining an equitable sentencing system. Most States have attempted to control the individualization of judicial practices while maintaining that sentences should consider the full range of traditional sentencing purposes. For example, Pennsylvania requires judges to consider offenders' rehabilitative potential and community protection as well as the guidelines. In Washington, the enabling legislation mandates that sentencing guidelines incorporate the goals of retribution, incapacitation, rehabilitation, and frugal use of correctional resources. Both of these States may be the most explicit examples of the effort to structure sentencing while maintaining adequate court discretion to fashion sentences to individual offenders. Recent innovations in Oregon and Louisiana have expanded the range of sentencing options and provided for the reduction of disparity. This new approach illustrates that sentences can be very different yet equal; this approach is an important move forward in the evolution of sentencing guidelines. Future commissions may develop guidelines that will increase fairness, equity, and proportionality while still providing for a full range of sentencing options. Displacement of Discretion One of the key issues facing those attempting to control sentencing discretion is displacement of discretion from the courts to the prosecutors. The concern is that guidelines have merely shifted discretion from parole boards, prison officials, and judges to prosecutors. Little evidence exists to document how much this has occurred. Clearly, more research is needed in this area of sentencing reform. Prison Crowding To date, structured sentencing reforms have not had any appreciable effect on the problem of prison crowding. Until the legislative process and sentencing commissions can tune out pressures to get tough on crime, there is little reason to believe that structured sentencing models will solve the prison-crowding problem. Furthermore, as State prisons remain crowded, they will continue to employ discretionary early release programs. Depending on how such programs are structured, attempts to reduce disparity may be lost in the determination of how much time similarly situated offenders will serve. Recommendations (The recommendations in this section are those of the Advisory Board.) The purpose of this project was not to advocate one form of sentencing policy, whether it be presumptive guidelines, voluntary/advisory guidelines, determinate sentencing, or indeterminate sentencing. Disparity, incarceration rates, and prison crowding can be reduced by several sentencing reform measures. The question is how best to achieve these goals. The most promising model is sentencing guidelines developed by sentencing commissions. Such systems have enhanced the State's ability to set sentencing goals and, in some instances, limits on what a State is willing to invest in prisons. In view of both the strong trend toward sentencing commissions and the continued growth of prison populations, it is likely interest in sentencing guidelines developed by commissions will continue. However, it should be noted that this report also provides examples of guidelines failing to improve the quality of justice. Guidelines work depending on how they are designed and implemented (and for what purposes). Guidelines should not be expected to solve all the problems surrounding the dispensing of justice and reducing crime. What follows are the Advisory Board's recommendations that States might consider in developing structured sentencing policies. o Commission representation participation. Broad participation in the guideline development process cultivates commitment to the final guidelines and improves their quality. o Resources. Adequate financial support is necessary for a commission to study a State's past sentencing practices; study what other States have accomplished; prepare reports and proposals; meet regularly and hire consultants when necessary; provide ongoing feedback to the court and other governmental agencies; and monitor and evaluate the impact of the sentencing guidelines. o Ongoing monitoring and support. Commissions that have successfully implemented guidelines have received increases in their budgets and staffs in the postimplementation years, probably because of continually increasing responsibilities imposed on the commissions by the legislature and the cost of maintaining and evaluating guidelines. o Appellate review. Without an enforcement mechanism, guidelines are merely voluntary/advisory and so may have little impact on sentencing practices. The common procedure is to provide for an appellate review initiated by either the defense or the prosecution. o Mandatory minimum sentences. The increased use of mandatory minimum penalties is preventing the achievement of the dual goals of reducing disparity and controlling population growth in institutions. States should resist such provisions if they affect large proportions of its sentenced population. o Controlling the use of departures. To help reduce unwarranted disparity, States should specify as much as possible the type of departures from guidelines that are acceptable. Moreover, sentencing commissions should carefully monitor the frequency and direction of departures, at least according to crime category, race, and gender. o Role of the Federal Government. States adopting guidelines need assistance. The Federal Government can play an important role by providing a modest amount of assistance in the following areas: o Establishing and maintaining a national clearinghouse on structured sentencing. o Convening annual meetings for State sentencing commissions to share information and research findings. o Establishing a funding program to help States develop technologies necessary to support the development or modification of existing sentencing structures. Assistance is required, especially in the following areas: o Conducting comprehensive studies of existing sentencing practices that can be used to guide States in the formulation of new sentencing structures. o Developing new methods or providing training to States in existing analytic methods for measuring disparity. o Designing information systems that can be used to monitor compliance with sentencing criteria. o Developing and improving criminal court and correctional population simulation technology (jails, prisons, probation, and parole). o Developing and improving methods of designing and pilot-testing sentencing guideline methods. Finally, more research is needed to assess whether guidelines and other forms of structured sentencing are reducing sentencing disparity. As indicated above, a number of States have implemented, or are about to implement, sentencing guidelines. Independent process evaluations and impact evaluations of these new structured sentencing reforms would be valuable to the field. A better understanding is also needed concerning the effect of reforms external to the guidelines on sentencing disparity, especially along racial lines. Topics to be addressed include the impact of mandatory minimum provisions for certain drug crimes on disparity and the effect of guidelines on shifting discretion from the courts to the front end of the system (arrest, charging, and plea bargaining). Such studies will help clarify how best to correct undesirable and unequal sentencing practices. ------------------------------ Chapter 1 Introduction The past two decades have brought considerable reforms in criminal justice sentencing. Criticisms of excessive disparity and of the rehabilitative ideal have prompted many States to replace indeterminate sentencing with structured sentencing schemes such as determinate sentencing, mandatory minimum penalties, and sentencing guidelines. Nevertheless, most States retain indeterminate sentencing structures while indicating interest in adopting these reforms. The criminal justice community has yet to develop a clear consensus on the basic definitions of structured sentencing and its goals. Indeed, States that have adopted various forms of structured sentencing have done so with multiple goals and expectations. The most frequently cited goals are the following: increasing sentencing fairness; reducing unwarranted disparity, either in the decision to imprison (dispositional disparity) and/or in sentence length (durational disparity); establishing truth in sentencing; and establishing a balance of sentencing policy with limited correctional resources. Structured sentencing reforms can be used to increase the certainty of punishment and mandate the period of imprisonment so that potential offenders are deterred and dangerous offenders are incapacitated. At the same time, sentencing reforms can be used to reduce the likelihood and length of imprisonment for the so-called nondangerous offender. Some State officials hope that these reforms can help them avoid a severe prison-crowding situation by regulating prison population growth according to available correctional resources. However, these purposes are not universally accepted, and the means used to implement them vary considerably among jurisdictions. This study, which was funded by the Bureau of Justice Assistance (BJA) and jointly conducted by the National Council on Crime and Delinquency (NCCD), the Pennsylvania Commission on Crime and Delinquency (PCCD), and the Pennsylvania Commission on Sentencing (PCS), is a review of lessons learned over the past two decades in the diverse attempts to structure sentencing. Structured Sentencing Definitions This examination of the various forms of structured sentencing revealed at the outset the lack of consensus regarding the meaning of basic, commonly used terms such as determinate sentencing, sentencing guidelines, voluntary sentencing guidelines, presumptive guidelines, and advisory guidelines. Therefore, the first task in preparing this report was to develop a series of definitions of terms used throughout the document in the hope of bringing some consistency to the field as well as helping the reader follow this discussion. The following definitions apply throughout the report: o Determinate: Sentences of incarceration in which an offender is given a fixed term that may be reduced by good time or earned time. There are usually explicit standards specifying the amount of punishment and a set release date with no review by an administrative agency (parole board). Postincarceration supervision (parole) may be a part of the sentence. o Indeterminate: Sentences in which an administrative agency, generally a parole board, has the authority to release an offender and determine whether an offender's parole will be revoked for violations of the conditions of release. In one form of indeterminate sentencing, the judge specifies only the maximum sentence length; the associated minimum duration is automatically implied but is not within the judge's discretion. In the more traditional form of indeterminate sentencing, the judge specifies a maximum and minimum duration that is set by statute. The sentencing judge has discretion on the minimum and maximum sentence. o Mandatory minimum: A minimum sentence that is specified by statute and that may be applied for all convictions of a particular crime or a particular crime with special circumstances (e.g., robbery with a firearm or selling drugs to a minor within 1,000 feet of a school). o Presumptive sentencing guidelines: Sentencing that meets the following conditions: (1) the appropriate sentence for an offender in a specific case is presumed to fall within a range of sentences authorized by sentencing guidelines that are adopted by a legislatively created sentencing body, usually a sentencing commission; (2) sentencing judges are expected to sentence within the range or provide written justification for departure; (3) the guidelines provide for some review, usually appellate, of the departure. Presumptive guidelines may employ determinate or indeterminate sentencing structures. o Voluntary/advisory sentencing guidelines: Recommended sentencing policies that are not required by law. Usually based on past sentencing practices, they serve as a guide to judges. The legislature has not mandated their use. Voluntary/advisory guidelines may employ determinate or indeterminate sentencing structures. Focus of This Report In the course of completing the study, researchers visited a number of States to collect various types of information regarding the structure of a State's sentencing system and to document the process of implementation. The researchers also reviewed and synthesized major studies of current structured sentencing systems that assess their impact on disparity, the use of incarceration, and prison crowding. The remainder of this publication provides a broad overview of sentencing reforms and a detailed examination of sentencing guidelines. Chapter 2 provides the reader with a summary of the historical trends in sentencing reforms since 1970. The chapter begins with a discussion of those factors or issues underpinning the structured sentencing movement, such as the disillusionment with indeterminate sentencing and rehabilitation. The chapter then reviews three major forms of sentencing reforms (voluntary/advisory guidelines, determinate sentencing, and presumptive guidelines), providing examples of States that have attempted each type of reform. Chapter 3 describes the results of a national survey of the 50 States and the District of Columbia. This survey represents the first major national assessment of the various sentencing schemes that now exist throughout the Nation. Included in the presentation is a detailed matrix that lists the key sentencing law attributes for each State, including the use of parole and mandatory sentencing provisions. In Chapter 4, the focus shifts to sentencing guidelines and the use of sentencing commissions. The chapter describes the foundation on which a sentencing commission and its guidelines are built: the political and legal context, the State's purposes or goals for reform, the specific legislative structure of the commission, and the legislative mandates included in the enabling legislation. Chapter 5 describes the complex decisionmaking and technical aspects of writing sentencing guidelines. The chapter also provides detailed information about how various States have made decisions in writing sentencing guidelines. Chapter 6 is an analysis of the relative effects of sentencing reforms on a number of key areas, including sentencing disparity, incarceration rates, prison crowding, and future prison population growth. The chapter summarizes the findings of studies on disparity, using an analysis of national criminal justice data to compare trends in incarceration, prison crowding, and crime rates among some of the early guideline States and comparable nonguideline States. The last chapter summarizes the major findings of this study and its policy implications. Specific recommendations are offered for further advancement of sentencing reforms with help from the Federal Government, which can provide additional technical assistance to the States in improving criminal justice sentencing. ------------------------------ Chapter 2 Historical Trends and Issues in Structured Sentencing Controlling discretion has presented a quandary for the criminal justice system throughout this century and particularly during the past 20 years. In his comprehensive review of discretion within the criminal justice system, Samuel Walker makes the following statements: . . . [T]he criminal justice "system" is nothing more than the sum total of a series of discretionary decisions by innumerable officials . . . [the real problem] . . . is not discretion, but its misuse.1 Police misuse of discretion received much attention during the 1960's. During the 1970's, concern over discretion exercised by the courts, parole, and corrections grew as crime rates increased. The past 20 years have produced many accusations but few studies documenting the misuse of discretion by judges, parole boards, and corrections officials, resulting in unwarranted sentencing disparity. Such unwarranted disparity results in undue leniency, excessive harshness, and uncertainty of sanctions.2 The solution to the problem of unwarranted sentencing disparity has been to structure sentencing discretion. However, a variety of mechanisms has been used to structure discretion, resulting in a patchwork of structured sentencing models that includes determinate sentencing, voluntary/advisory guidelines, and presumptive guidelines. What follows is a historical overview of these various reform efforts, which were intended to remove disparity in sentencing as well as improve the credibility of the criminal justice system. Historical Developments Leading to Structured Sentencing The Indeterminate Period At the end of the 19th century, sentencing reform in the United States involved replacing the flat sentence with indeterminate sentences. The criminal justice system was coping with a rapidly increasing number of individuals imprisoned as a result of an expanding population of immigrants and transients, increased efficiency of the police and courts, the fixed sentence, and other factors. Overcrowded prisons and the mere warehousing of inmates resulted.3 At first, piecemeal reforms such as the use of pardons, good time, and probation provided needed flexibility for grappling with an expanding and diversifying prison population. These reforms gradually led to an increase in indeterminate sentences given by 19th-century judges. The movement toward indeterminate sentences was spurred by the Declaration of Principles of the First Congress of the National Prison Association, which met in Cincinnati in 1870. The declaration urged that "preemptory sentences ought to be replaced by those of indeterminate length. Sentences limited only by satisfactory proof of reformation should be substituted for those measured by the mere lapse of time."4 Under indeterminate sentences, offenders received a minimum and maximum sentence, and the parole board determined the time of actual release. Alan Dershowitz later characterized this shift as one from a judicial to an administrative model of sentencing.5 The parole board's determination of when the sentence was served, in turn, depended on its judgment of whether the prisoner had been reformed or cured or had simply served enough time. With indeterminate sentencing, discretion was distributed not only among the prosecutor, defense counsel, and judge but also, for those imprisoned, among prison officials and the parole board. The latter two agencies had considerable influence over an offender's length of stay. Prison officials had discretion over the amount of good time an inmate could earn, which would dictate the prisoner's parole eligibility and/or discharge date. Parole boards controlled the actual release decision for most inmates. The result was a system of sentencing in which there was little understanding or predictability as to who would be imprisoned and for how long. Attacks on Indeterminacy Under indeterminate sentencing, the sentence was individualized so that the punishment fit the criminal rather than the crime. However, this approach prompted numerous accusations of disparity in sentencing and, over time, protests from inmate groups, penologists, and other critics of the penal system. One of the most influential reports critical of indeterminate sentences was the 1971 American Friends Service Committee's work entitled Struggle for Justice: A Report on Crime and Punishment in America, written by "scholars working in the field of criminal justice" and "those who have been on the receiving end of the justice system."6 The report used anecdotal evidence, results of prison riot studies, and personal testimony from inmates to critique the function of punishment and reject the rehabilitation model. Specifically, the report questioned the assumption that crime is a product of individual pathology and that rehabilitation can be achieved within a prison system designed to punish and not treat inmates. It also criticized the assumption that penologists have the knowledge to impose treatment or to accurately predict recidivism to justify discretion in determining when an inmate should be released. Drawing on Struggle for Justice: A Report on Crime and Punishment in America were two other important works also critical of indeterminate sentencing: the report of the Twentieth Century Fund's Task Force on Criminal Sentencing entitled Fair and Certain Punishment (particularly the background paper by Alan Dershowitz)7 and the report of the Committee for the Study of Incarceration, which was published as Andrew von Hirsch's Doing Justice: The Choice of Punishments.8 Both Dershowitz and von Hirsch argued for a shift from indeterminate to more determinate sentencing and for what has been termed the "presumptive sentence." They asserted that these concepts, if implemented, would lead to greater predictability in determining proper sentence disposition (prison versus probation) and length of imprisonment. However, there were important differences in the scope of each author's suggested reforms. Dershowitz's presumptive sentence would require legislatures to set specific penalties for crimes on the basis of the comparative seriousness of the offense, with more serious crimes appropriately receiving a harsher presumptive sentence. The judge would be obliged to impose the statutorily set penalty, which could be raised or lowered through the application of aggravating or mitigating factors by the court. Dershowitz's proposals called for the retention of parole, but with limitations. While Dershowitz called for a shift in emphasis from administrative sentencing to a greater legislative and judicial role, von Hirsch argued for a more radical departure by rejecting the value of general deterrence, rehabilitation, and incapacitation as punishment justifications. He concluded that States should base their sentencing schemes on a "just deserts" or "commensurate deserts" paradigm. Sentencing would be narrowly based on only the seriousness of the offense and the culpability of an offender rather than on an offender's need for "treatment" or on the naive hope that sentencing would somehow affect crime rates. Such a sentencing system would focus not on individualization of punishment but on structuring the system of punishment. The approach would sharply reduce judicial sentencing discretion by establishing punishment categories within which penalties for comparable serious offenses could be grouped on a scale. By using only two factors-- offense severity and, to a limited degree, prior criminal history--a presumptive sentence would be determined. Judicial discretion would thus be limited to setting a presumptive term within a specified sentencing range or justifying departures by applying allowable aggravating or mitigating factors. Departures would be monitored and somewhat circumscribed by allowing judicial review of sentencing, a process that was previously almost nonexistent. Von Hirsch initially insisted that discretionary release by parole boards be abolished. Another influential voice in the early discussions of structured sentencing was that of Judge Marvin Frankel in his book Criminal Sentences: Law Without Order. In 1972, when Frankel's book was published, no models for sentencing guidelines existed. Although he was a judge, Frankel made such a strong case for controlling discretion that the concept of judicial discretion was shattered. Moreover, Frankel foresaw the need to develop a regulatory approach, articulating the principle on which his proposal rested as follows: We boast that ours is a "government of laws, not men." We do not mean by the quoted principle that men make no difference in the administration of law. Among the basic things that we do mean is that all of us, governors and governed alike, are or ought to be bound by laws of general and equal application. We mean, too, that in a just legal order, the laws should be knowable and intelligible so that, to the fullest extent possible, a person meaning to obey the law may know his obligations and predict within decent limits the legal consequences of his conduct.9 The problem according to Frankel was that " . . . the sweeping power of a single judge to determine the sentence, as a matter of largely unreviewable `discretion' is a--perhaps `the'--central evil in the system."10 One part of the solution was the development of appellate review of sentencing. At the time of Frankel's writing, there was "in practical effect no appeal from the trial judge's sentence."11 Like the other authors previously cited, Frankel attacked the indeterminate sentence, primarily on the grounds of cruelty and injustice. However, he suggested that indeterminate sentences may be appropriate for dangerous offenders, drug users, some sex offenders, and juvenile offenders. Frankel recommended that the legislature provide direction as to the purposes and justifications of criminal sanctions. He proposed the establishment of a Commission on Sentencing, which would be a permanent agency formed to study sentencing, corrections, and parole; formulate rules and laws based on its studies; and enact rules subject to checks by Congress, State legislatures, and the courts. However, Frankel did not expect the proposed sentencing commission to escalate the use of imprisonment, which he regarded as already too severe. He hoped that a sentencing commission could act as a buffer, shielding the legislature from political pressures to respond to ever increasing demands for more punitive sanctions and to help control prison population growth. Early Guideline Developments During the same period, researchers who were developing parole release guidelines for the U.S. Board of Parole began to experiment with applying this methodology to sentencing decisions.12 In the 1960's, parole guidelines had been developed by using a two-dimensional matrix relating the seriousness of the instant offense and the probability of recidivism (or the salient factor score) to an expected time served before release on parole. A small range was provided, within which parole hearing examiners had to set the length of incarceration. Departures were permitted, but written reasons for such departures were required. Because the judiciary supported and strongly commended parole guidelines, the concept of guidelines was believed to have value and to be adaptable to sentencing. A model for parole guidelines was applied experimentally to sentencing for the first time between 1974 and 1976 in four jurisdictions. Two sites (Denver and the State of Vermont) were active participants, and two sites (Essex County, New Jersey, and Polk County, Iowa) were observers. This feasibility study was described as an action research project in which researchers studied existing sentencing processes. The judiciary was involved in all phases of the project, from the gathering of all information relevant to sentencing discretion, to the analysis of factors that accounted for the greatest variation in the judges' sentencing decisions. The researchers did not attempt to develop prescriptive notions of what would be a "right" sentence. Instead, they were trying to understand what underlying factors influenced the sentencing decision. The analysis indicated that although there was considerable disparity among judges' sentencing decisions, two factors explained the largest variations: seriousness of the current offense and the extent of the offender's prior record. More importantly, judges who participated in the research expressed support for the concept of guidelines to better help them reach sentencing decisions. The History and Nature of Structured Sentencing Reforms Since the late 1970's, nearly all State sentencing practices have fallen into four broad categories: (1) voluntary/advisory sentencing guidelines, (2) determinate sentencing, (3) presumptive sentencing guidelines, and (4) traditional indeterminate sentencing. Along with mandatory sentencing, the first three models represent the most common forms of structured sentencing, although there are many variations of each. The remainder of this chapter presents a historical overview of structured sentencing efforts to date. The overview identifies the significant issues in sentencing reform that are addressed by this project and describes the key attributes of structured sentencing systems that some jurisdictions have considered or incorporated in developing their own structured sentencing systems. These examples show that structured sentencing is not a single or unified concept. Instead, it embodies a variety of approaches to identifying the particular goals of sentencing in a specific jurisdiction and to achieving those goals by structuring the discretion of sentencers (judges, parole boards, prosecutors, and prison officials) at various points in the criminal justice system. Voluntary/Advisory Sentencing Guidelines Among the earliest sentencing innovations in the United States was the experiment with voluntary/advisory guidelines, called "voluntary" because judges were not required to comply with them. They emerged in part to counter determinate sentencing reforms as adopted in California, Illinois, and Indiana in 1977. The earliest voluntary/advisory guidelines projects originated as a result of a multiyear project beginning in 1974 and funded by the National Institute of Justice. The purpose of the project was to study the feasibility of empirically based guidelines for sentencing.13 The project provided support to researchers who had been instrumental in developing parole guidelines so that the guidelines could be field tested in Denver; Newark, New Jersey; Chicago; Phoenix; and Philadelphia between 1975 and 1980. In addition, experiments with voluntary/advisory guidelines in Florida and Maryland later became institutionalized. In Florida, statewide voluntary/advisory guidelines were revised by a sentencing commission and converted into presumptive guidelines in 1983. In the same year, Maryland formally adopted statewide voluntary/advisory guidelines. The States of Massachusetts, Michigan, Rhode Island, Utah, and Wisconsin also experimented with voluntary/advisory guideline systems at varying levels.14 Several evaluations of these early efforts yielded discouraging results.15 Sparks et al. found that the early Massachusetts guidelines were poorly conceived, poorly developed, and not effectively implemented.16 In its comprehensive assessment of the development and impact of voluntary/advisory guidelines, the National Center for State Courts found difficulties in their implementation in Denver, Chicago, Newark, and Phoenix.17 Specifically, the researchers found major methodological and analytical defects in the development of the Denver guidelines. Furthermore, the Denver guidelines were found to have exerted little influence on judicial decisions on whether to incarcerate, and compliance rates for lengths of prison terms were disappointingly low. The researchers drew the following conclusions: The various measures employed . . . converge on a single conclusion: sentencing guidelines have had no detectable, objectively manifested impact on the exercise of judicial sentencing discretion.18 These disappointing results were often linked to implementation difficulties and the lack of enforcement. In some instances, insufficient time was allowed for the guidelines to take hold. More important, the guidelines were voluntary; judges could simply ignore them. Nonetheless, they were an important step in the sentencing reform process because they helped change sentencing patterns from indeterminate to determinate. By 1994 six States (Arkansas, Louisiana, Maryland, Michigan, Virginia, and Wisconsin) had adopted voluntary/advisory guidelines. Several of these States were the early experimenters with voluntary/advisory guidelines. However, a review of all the major studies conducted on voluntary/advisory guidelines reveals low compliance by judges and, hence, little impact on reducing disparity.19 Although all voluntary/advisory guideline systems are not alike, an example of voluntary/advisory guidelines can be found in Virginia. The Virginia guidelines were not legally mandated as presumptive sentencing guidelines are. Likewise, there was no enabling legislation that set up a sentencing commission to develop the guidelines. Rather, they were based on historical sentencing practices (descriptive versus prescriptive). The process of guidelines development in Virginia exemplifies descriptive guideline development. In 1982, then Governor Charles Robb appointed a task force to examine statewide sentencing practices and to recommend any necessary changes. Between 1983 and 1988, the task force, or Judicial Sentencing Guidelines Committee (JSGC), which is accountable to the Judicial Conference of Virginia (JCV), developed a set of voluntary/advisory guidelines. The guidelines were descriptive: that is, they were developed through statistical analyses of past sentencing practices and then tested in six pilot districts for 1 year, 1988- 1989. The JSGC determined the guidelines to be effective and favorably received by judges in the six pilot districts and, thus, voted to expand their use throughout the State. In 1990, the State legislature commended the JCV for its work and urged adoption of the guidelines. A permanent JSGC (composed of seven circuit court judges) was formed in 1990. The committee decided to base the statewide guidelines on sentencing practices between 1985 and 1989, agreeing that the guidelines should be revised at 1-year intervals in accord with analyses of the previous year's sentencing practices. The primary purpose of the guidelines was the establishment of rational and consistent sentencing standards that reduce unwarranted sentencing disparity. However, Virginia's guidelines were not intended to affect prison populations, change the severity of sentences, change the philosophy of sentencing, or restrict judicial discretion. Instead, they were intended to provide a historical picture, descriptive of past sentencing practices for a variety of offenses, to assist judges in decisionmaking. Virginia's guidelines do not rank offenses according to a severity scale and do not base recommendations on a matrix of offense severity and criminal history scores. The guidelines consist of separate scoring schemes, factors to be considered, and sentence recommendations for eight categories of offenses: homicide, assault, robbery, sexual assault, burglary, larceny, drugs, and fraud. The guidelines are bifurcated in structure to reflect two sets of decisions: (1) whether to imprison an individual and for how long and (2) whether those not imprisoned should go to a local jail for a certain period of time or receive probation. In developing the guidelines, the Virginia committee did not consider any factors influencing sentences that were deemed inappropriate (e.g., race, gender, or age). Therefore, Virginia's model is not purely descriptive because it specifically eliminates from the guidelines certain factors that historically influenced sentencing in Virginia. The Virginia court has significant power to decide who should be incarcerated because that option is always available. In all categories of the Virginia matrices, the court is given a range of sentences based on the past 5 years of sentencing practices. The guideline ranges are updated every year to reflect the most recent sentencing patterns by discarding the oldest data and replacing them with current data. Because Virginia's guidelines were implemented as recently as 1991, there has been no major research on the degree to which they have reduced disparity or how they are used in court decisionmaking. However, the 1989 report on the test guidelines in the six pilot districts indicated that the guidelines foster greater uniformity and less unwarranted disparity and that judges comply with guideline recommendations at a rate of 78 percent. It should be noted that acceptance of the overall policy was not the same as compliance with a guideline recommendation. Because departures (i.e., exceptions) may be permitted or encouraged by the general policy, a 78-percent rate of compliance with the suggested decision outcome may indicate a 100-percent acceptance of policy. Virginia's new Governor, George Allen, established a commission in 1994 to study the abolition of parole and the development of a presumptive sentencing system. The State legislature established a committee to make recommendations on the appropriate role of parole and presumptive sentencing guidelines. In addition, legislation that radically alters the voluntary guideline structure has been adopted. Parole was abolished and the existing sentencing policy modified to greatly lengthen the period of imprisonment. Virginia's recent reforms highlight the volatile nature of sentencing policy. Determinate Sentencing The term "determinate sentencing" is generally used to refer to the sentencing reforms of the late 1970's. In those reforms, the legislatures of California, Illinois, Indiana, and Maine abolished the parole release decision and replaced the indeterminate penalty structure with a fixed (flat) sentence that could be reduced by a significant good-time provision. The only State that has adopted a true determinate sentencing system since 1980 is Arizona, which enacted a "truth in sentencing law" on January 1, 1994. These five States have retained their determinate sentencing models, although no other States have adopted such a structured sentencing scheme. Determinate sentencing was spurred initially by two opposing political forces. Some people attacked the disparities of unfettered judicial discretion that resulted in sentencing biases against the socially disadvantaged.20 On the other hand, the advocates of "law and order" and "get tough" crime policies viewed unfettered judicial discretion as too lenient. Nelson argues "that this twofold drive helps determine what type of determinate sentencing system, if any, will develop in a given jurisdiction since the resultant sentencing will largely be a product of both drives."21 In three of the States (California, Illinois, and Indiana), the legislators provided presumptive ranges of confinement. But those in Illinois and Indiana were so wide that they provided the court with extensive discretion on sentence length. For many offenses, there was no presumptive lead as to whether the sentence should be for, or against, incarceration. Thus, courts were left with extensive discretion in deciding both whether to incarcerate and the length of incarceration. It is arguable that the discretion attacked in these reforms was mainly that of parole boards, and that the discretion lost by parole boards was largely shifted to the courts or to the prosecutors who control the charging function.22 The Illinois law provides a clear example of these points. The legislation, which was passed on July 1, 1977, created six major classes of offenses for which convicted felons could be sentenced to prison: Class M (murder); Class X (robbery, assault, rape, and kidnaping); Class 1 (attempted robbery, rape, and drug sale); Classes 2, 3, and 4, which represent property crimes (burglary, theft, and fraud); drug offenses (possession and sale); and simple robbery. Class X was the most significant sentencing category because it mandated judges to sentence offenders convicted of these crimes to prison for anywhere from 6 to 30 years, with possible enhancements of 30 to 60 years. Offenders sentenced for these offenses began serving longer terms under the new law, despite the fact that inmates also were being awarded increased amounts of statutory good-time credit (day-for-day statutory good time, as opposed to the previous one-third statutory good-time system). The parole board's authority to grant release was abolished, while postrelease supervision was retained. A determinate sentencing system may be based on a "just deserts" concept, a utilitarian or crime control model, or some combination of sentencing goals. A purely utilitarian (or crime control) model of punishment (e.g., concerned with recidivism, incapacitation, and deterrence) focuses little on the crime the offender committed but demands longer sentences for crimes in which consequences associated with incarceration are of most concern.23 On the other hand, a pure "just deserts" model emphasizes the criminal act itself to the exclusion of crime control goals.24 California provides a well-known example of the evolution of a determinate sentencing model. Although numerous subsequent amendments have changed the statute considerably, California initially adopted a "just deserts" sentencing model. The enabling legislation clearly stated that the "purpose of imprisonment is punishment."25 The legislature determined that offenses should be placed into four categories of crimes on the basis of general severity; then presumptive lengths of incarceration were established for each category. In addition, for each presumptive incarceration length, the legislature provided a range for aggravating and mitigating circumstances. Data show the initial ranges provided for the four classifications and the ranges for aggravation and mitigation under California's determinate sentencing law. These ranges apply only if the court selects incarceration. The California model and the State's experience in the first few years of its administration helped to reverse the direction of the development of structured sentencing reform models. The initial determinate sentencing law was projected to have no impact on prison population growth. However, Messinger and Johnson report that during the first year, there were 43 amendments to the legislation, all of which increased the severity of sentences and, thus, the demand for prison space.26 The large number of amendments to the original law, they interpreted, was the result of the legislature's attempts to control sentencing. In Messinger and Johnson's view, California set an example of how not to develop structured sentencing in which the results are strongly influenced by the politics of crime. In a 1983 evaluation of the reform's impact, Casper and Brereton concluded that the amended legislation, as intended, increased the likelihood of incarceration and resulted in a phenomenal growth in prison populations.27 Sentencing Commissions and Presumptive Sentencing Guidelines By the early 1980's, States began to experiment with approaches using sentencing guidelines developed by sentencing commissions. These models differed from determinate and voluntary/advisory guidelines experiments in three respects. First, the guidelines were not developed by the legislature but by a sentencing commission that often represented a diverse array of criminal justice and sometimes private citizen interests. Second, the guidelines were explicit and highly structured, relying on a quantitative scoring instrument. Third, the guidelines were not voluntary/advisory. Judges had to adhere to the sentencing system or provide a written rationale for departures. As in the move to determinate sentencing and voluntary/advisory guidelines, the driving forces stimulating presumptive sentencing guidelines were issues of fairness (including disparity, certainty, and proportionality) and prison crowding. These concerns provided the impetus for States to adopt guidelines, replace indeterminate sentencing with determinate sentencing, and abolish or curtail discretionary parole release. The first four States to adopt presumptive sentencing guideline systems were Minnesota (1980), Pennsylvania (1982), Washington (1983), and Florida (1983). The Minnesota model in particular, with its focus on controlling prison population growth, has often been cited as a successful example of controlling disparity and rising corrections costs through sentencing guidelines. The American Bar Association has endorsed sentencing commission-based guidelines through its Criminal Justice Standards Committee's Sentencing Alternatives and Procedures (adopted by the ABA House of Delegates). In making such an endorsement, the Standards Committee relied "heavily upon the system of presumptive/ordinary offender sentencing pioneered in a guidelines system in Minnesota."28 The Federal Government and 16 States have established commission-based sentencing guidelines. According to the definitions presented in Chapter 1, 10 of the 16 States can be classified as using presumptive sentencing guidelines. The remaining six have voluntary/advisory guideline models. With the exception of mandatory minimum sentencing provisions, sentencing guidelines authored by legislatively created sentencing commissions are now the most popular form of structured sentencing. The next chapter provides a current listing of those States that have adopted guidelines, as well as other State sentencing structures such as determinate sentencing or indeterminate sentencing. Chapters 4 and 5 present detailed descriptions of presumptive sentencing guidelines and the commissions that have written them. ------------------------------ Notes 1. Walker, S. Taming the System: The Control of Discretion in Criminal Justice, 1950-1990. Oxford: Oxford University Press. 1993, p. 4. 2. Sentencing involves the totality of the sentences imposed and the sentences served as carried out by administrative agencies, parole boards, and prison officials. 3. Shane-DuBow, S.A., A.P. Brown, and E. Olsen. Sentencing Reform in the U.S.: History, Content and Effect. Washington, DC: U.S. Department of Justice. 1985. 4. Note 3, p. 5. 5. Dershowitz, A. "Criminal Sentencing in the United States: A Historical and Conceptual Overview." Annals of the American Academy of Political and Social Science 423(1976), pp. 117- 132. 6. American Friends Service Committee. Struggle for Justice: A Report on Crime and Punishment in America. New York: Wang. 1971. 7. Twentieth Century Fund Task Force on Criminal Sentencing. Fair and Certain Punishment. New York: McGraw-Hill. 1976. 8. von Hirsch, A. Doing Justice: The Choice of Punishments. New York: Hill & Wang. 1976. 9. Frankel, M.E. Criminal Sentences: Law Without Order. New York: Hill & Wang. 1972, p. 1. 10. Ibid., p. 69. 11. Ibid., p. 76. 12. Wilkins, L.T., J.M. Kress, D.M. Gottfredson, J Calpin, and A.M. Gelman. Sentencing Guidelines: Structuring Judicial Discretion--Report on Feasibility Study. Washington, DC: U.S. Department of Justice. 1978. 13. Tonry, M. "Structured Sentencing." In Crime and Justice: A Review of the Research, vol. 10, ed. M. Tonry and N. Morris. Chicago: University of Chicago Press. 1988. See also Note 12 and Kress, M. Prescription for Justice: The Theory and Practice of Sentencing Guidelines. Cambridge: Ballinger. 1980. 14. Ibid. See also Note 3. 15. Cohen, J., and J. Helland. "Methodology for Evaluating the Impact of Sentencing Guidelines." Unpublished paper. Pittsburgh: Urban Systems Institute, School of Urban and Public Affairs, Carnegie-Mellon University. 1982. See also Carrow, D.M., J. Feins, B.N.W. Lee, and L. Olinger. Guidelines Without Force: An Evaluation of the Multi-jurisdictional Sentencing Guidelines Field Test. Cambridge: Abt. 1985. See also Sparks, R.F., B.A. Stecher, J. Albanese, and P.L. Shelly. Stumbling Toward Justice: Some Overlooked Research and Policy Questions About Statewide Sentencing Guidelines. Report to the National Institute of Justice, U.S. Department of Justice. Washington, DC: U.S. Government Printing Office. 1982. See also Rich, W.D., L.P. Sutton, T.R. Clear, and M.J. Saks. Sentencing by Mathematics: An Evaluation of the Early Attempts to Develop Sentencing Guidelines. Williamsburg, VA: National Center for State Courts. 1982. 16. Sparks, R.F., B.A. Stecher, J. Albanese, and P.L. Shelly. Stumbling Toward Justice: Some Overlooked Research and Policy Questions About Statewide Sentencing Guidelines. Report to the National Institute of Justice, U.S. Department of Justice. Washington, DC: U.S. Government Printing Office. 1982. 17. Rich, W.D., L.P. Sutton, T.R. Clear, and M.J. Saks. Sentencing by Mathematics: An Evaluation of the Early Attempts to Develop Sentencing Guidelines. Williamsburg, VA: National Center for State Courts. 1982. 18. Ibid., p. xxiv. 19. Cohen, J., and M.H. Tonry. "Sentencing Reforms and Their Impacts." In Research on Sentencing: The Search for Reform, ed. A. Blumstein, J. Cohen, S.E. Martin, and M.H. Tonry, pp. 305-459. Washington, DC: National Academy Press. 1983. 20. Nelson, B. "The Minnesota Sentencing Guidelines: The Effects of Determinate Sentencing on Disparities in Sentencing Decisions." Law and Inequality 10(3)(1992), p. 217. See also Frankel, M.E. Struggle for Justice. New York: Hill & Wang. 1971. See also Messinger, S.L., and P.D. Johnson. California's Determinate Sentence Statute: History and Issues in Determinate Sentencing: Reform or Regression? Washington, DC: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. 1978. 21. Ibid. 22. Alschuler, A.W. "Departures and Plea Agreements Under the Sentencing Guidelines." Federal Rules Decision 117(1988), pp. 459-476. 23. Note 19. 24. Note 23. See also von Hirsch, A. "The Politics of Just Deserts." Canada Journal of Criminology 32(1990), p. 397. 25. California Penal Code, Section 1170(a)(1). 26. Messinger, S.L., and P.D. Johnson. California's Determinate Sentence Statute. History and Issues in Determinate Sentencing: Reform or Regression? Washington, DC: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. 1978. 27. Casper, J., and D. Brereton. "Evaluating Criminal Justice Reforms." Law and Society 18(1984), pp. 121-144. 28. American Bar Association. Standards for Criminal Justice--Sentencing Alternatives and Procedures. 3d ed. Boston: Little, Brown & Company. 1993. ------------------------------ Chapter 3 An Overview of Current Sentencing Practices in the United States This chapter describes the results of a national survey of sentencing practices in the United States conducted in late 1993 and early 1994. The survey represents the first major national assessment of existing sentencing practices. Information for this chapter was also culled from several other data sources besides the national survey. The Pennsylvania Commission on Sentencing maintains an extensive library containing documents on sentencing practices in a number of the States. The United States Sentencing Commission (USSC) recently conducted a national survey on mandatory sentencing for drug offenses. Followup telephone calls were made to some individuals who have the most detailed knowledge of their States' sentencing practices. Finally, information was supplemented by site visits to some States. It should be noted that this chapter summarizes some very complex State sentencing statutes. A primary objective of the national survey was to classify States according to sentencing structure. This classification required two steps: establishing operational definitions of sentencing practices (see Chapter 1) and surveying State respondents to determine how many of these sentencing practice types applied to their States. Data show how the responding States classified themselves according to the definitions outlined in Chapter 1 for determinate, indeterminate, and/or sentencing guideline structures. Including the District of Columbia, 29 States reported having indeterminate sentencing. Some form of determinate sentencing was indicated by 20 States, and 16 States have sentencing guidelines. All States reported having a variety of mandatory minimum incarceration sentencing. Data reflect the fact that State respondents could check all the sentencing practices that applied to their States. (Fourteen respondents checked multiple sentencing practices, excluding mandatory sentencing.) For example, some States have determinate sentencing for one class of offenses and indeterminate sentencing for another class. A respondent also may have checked both indeterminate sentencing and presumptive sentencing guidelines, indicating that the State uses guidelines within an indeterminate sentencing structure. Followup contacts with several respondents revealed (1) that they checked off presumptive sentencing guidelines but meant to check presumptive sentencing (guidance or presumptions that must be considered by the court in sentencing) or (2) that only some judicial districts within the State used informal guidelines. Data summarize the primary forms of sentencing practices in the United States on the basis of definitions presented in Chapter 1. States were classified according to their primary sentencing structure on the basis of all of the information received from the survey and followup contacts. For example, a State with sentencing guidelines and indeterminate sentencing was placed in the sentencing guidelines category; States with both indeterminate and determinate features--such as Alabama, Alaska, and Ohio--were classified as indeterminate if most inmates are sentenced under the indeterminate structure. Including the District of Columbia, 30 States were therefore classified as indeterminate sentencing types; 5 States were classified as determinate sentencing types; and 16 States (including North Carolina, whose guidelines became effective in October 1994) were classified as sentencing guidelines types. Mandatory Minimum Incarceration Sentences in the United States The national survey asked questions regarding mandatory minimum sentences: for example, if mandatory sentences existed, and if so, for which offenses. States were also asked to provide more detailed information on any mandatory minimum incarceration sentences for cases that involve controlled substances: drug type, amount of drug, and penalty for which the mandatory sentence applies. States also were asked to submit copies of statutes concerning all mandatory minimum sentences. Collecting data on mandatory minimum sentences was difficult. Originally, data were to be collected from States with mandatory minimum periods of incarceration for selected crimes; however, several States initially reported no mandatory sentences because (1) the sentences exist in statute but are not used, (2) an offender may receive the mandatory sentence but is still eligible for early release via good time and parole, or (3) the sentence is mandatory only because incarceration cannot be suspended. It was decided to include all these possibilities in the presentation of data. Data summarize the results of the survey on mandatory minimum sentencing. All States have some form of mandatory sentencing provisions; the most popular application of mandatory sentencing is for repeat or habitual offenders (41 States) and for crimes accompanied by the possession of a deadly weapon (41 States). Survey responses indicate that Hawaii, Kansas, Kentucky, Louisiana, Maine, Nebraska, New Hampshire, New Mexico, New York, Ohio, Oklahoma, Oregon, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wyoming lack any drug mandatory minimums. Data indicate that mandatory minimum sentences are imposed for many offenses in Colorado, Illinois, Pennsylvania, Rhode Island, and Wisconsin. Summarizing all the information collected on mandatory minimum sentences for drug offenses is impossible because the types of drugs, amounts required for the mandatory sentences to apply, and penalties vary widely. Approximately 20 States have implemented mandatory minimum sentences for drug sales to minors and sales within a specified distance (usually 1,000 feet) of a school. One survey respondent stated that the mandatory minimum does not apply if the offender is shown to be a "drug-dependent person." Currency of State Criminal Codes States were asked to report when their criminal codes were most recently revised or rewritten to change the elements of offenses. Most States have not significantly revised their codes since the 1970's. This question proved difficult to answer for States in which revision of the criminal code is an ongoing process, with yearly changes taking place. Several large States reported that their codes had not been revised for some time: since 1872 for California, 1935 for Michigan, and 1967 for New York. Only nine States reported major revisions in the 1990's, and six States reported major revisions in the 1980's. States were also asked to indicate whether any commissions, task forces, or committees had recently been formed to study and/or make recommendations to change State sentencing practices. The following States are in the midst of studying changes: o Alaska established a sentencing commission in 1990, charging it with addressing sentencing reform and prison overcrowding. The commission released a report in December 1992 recommending changes in areas such as the use of alternative punishments, parole, and inmate classification. o Hawaii formed a committee to review any needed changes to the penal code and to report to the legislature. o Iowa established the Intermediate Crime Sanctions Task Force to recommend sentencing reforms. o The Kentucky Governor's Commission on Quality and Efficiency has recommended the implementation of sentencing guidelines. o Massachusetts is considering a proposal to adopt a determinate sentencing structure, has recently created a sentencing commission, and is considering sentencing guidelines. o Michigan established a sentencing commission to study the feasibility of developing sentencing guidelines. A specific goal of the commission is to further the concept of "truth in sentencing." o Missouri established a sentencing commission to study the State's sentencing practices and identify sentencing disparity. o Ohio established a sentencing commission in 1991 to study sentencing laws and correctional resources. A legislative bill was introduced to eliminate parole and good time and to create flat sentences (with a series of presumptions). o Oklahoma is considering a determinate "truth in sentencing" guideline structure. A commission has been established to develop recommendations for the legislature by 1995. Use of Parole and Good Time The survey asked questions about discretionary release from correctional facilities and the use of good time in these facilities. In all, 48 States reported having parole or some other form of postrelease supervision, and 48 States reported having good time for inmates at the local and/or State levels. Hawaii, Pennsylvania, and Utah reported not having good-time provisions for inmates. Only Arizona, Florida, and Maine lack parole supervision (except for inmates who still fall under the old sentencing structures, or for a small number of offenders sentenced to life with the possibility of parole). However, only Maine and the Federal system have apparently abolished parole boards and all forms of postrelease supervision for all offenders. In some States, such as California, Delaware, Illinois, and Oregon, parole in its purest sense has been eliminated, replaced by some form of postrelease supervision that is not called parole. Sentencing Commissions in the United States Information on States that have adopted sentencing guidelines and have sentencing commissions is summarized in data. It should be noted that use of the term "commission" is a generalization; entities in some States may have other names, such as "committee." In 10 of the 16 States having sentencing commissions and sentencing guidelines, the guidelines are presumptive; the other 6 States (Arkansas, Louisiana, Maryland, Michigan, Virginia, and Wisconsin) have voluntary/advisory guidelines. In addition to the 16 States listed, at least 5 other States (Kentucky, Massachusetts, Missouri, Ohio, and Oklahoma) have guidelines and/or a sentencing commission under study. Although it has voluntary/advisory guidelines, Michigan has established a sentencing commission to further study its sentencing practices and to propose a more structured sentencing scheme. In South Carolina, the status of guidelines remains in flux. Initial data indicated that the guideline commission would cease to exist in June 1994 and that guidelines would not be implemented. Although sentencing guidelines have been the dominant form of sentencing reform during the past two decades, it is also true that most States have not adopted that sentencing structure, and several others have tried but failed to implement guidelines. Some of the factors that impede or facilitate a State's ability to adopt sentencing guidelines are addressed in the following two chapters. ------------------------------ Chapter 4 Sentencing Commission Structures and Their Mandates The sentencing commission's sociopolitical environment and legislative mandate strongly influence its role, the quality of its guidelines, and its ability to implement--and obtain conformance to--its sentencing guidelines. For purposes of discussion in this chapter, a sentencing commission is a State agency that issues guidelines for the sentencing court. The purposes of the reform, the specific legislative structure of the commission and the mandates included in the enabling legislation, and the political and legal context are examined in the following pages. The collection of information for this report included the study of documents provided by all the State guideline systems and the United States Sentencing Commission (USSC). Visits were made to Delaware, Kansas, Louisiana, Maryland, North Carolina, South Carolina, Tennessee, Virginia, and Washington. In these States, key individuals involved in the development of the sentencing guidelines were interviewed. Finally, where guidelines have been implemented, available data on the impact of the guidelines were reviewed. However, because of the dynamic quality of sentencing--sentencing commissions and sentencing guidelines in particular--important changes occurred constantly and material had to be updated regularly. The classification of State sentencing systems was simplified in areas such as the degree of determinateness and the degree of presumptiveness for purposes of presentation. Therefore, some will disagree or argue that their State system is more complex. However, to communicate general trends to legislators and others who may know little about sentencing, it was necessary to simplify the discussion. Purposes of Reform States create sentencing commissions for many reasons. Researchers found that the most frequently cited reasons are to increase sentencing fairness, to reduce unwarranted disparity, to establish truth in sentencing, to reduce or control prison crowding, and to establish standards for appellate review of sentences. These purposes are not all or universally accepted, and the means used to implement them vary among jurisdictions. The purposes outlined by commissions influence nearly every aspect of the guideline development process. Therefore, each guideline system should be evaluated against its stated goals. This section describes the issues and the various approaches that many States and the Federal Government have taken in addressing their specific purposes. Fairness and Sentencing Disparity Fairness covers a number of issues that sentencing reforms have addressed over the past 20 years. Fairness refers to reducing unwarranted sentencing disparity, making sentences commensurate with the seriousness of offenses, and increasing certainty and predictability.1 For purposes of this discussion, certainty and predictability are considered issues related to what is commonly referred to as truth in sentencing, described in the next subsection. Although sentencing disparity is the primary fairness concern, it is also difficult to define. Generally, disparity is defined as different sentencing of "similarly situated" offenders and the similar sentencing of dissimilar offenders. However, the meaning of "similarly situated" can vary. For some it means that sentences should be proportionate to the severity of the offense.2 For others, it means that sentencing should focus on "culpability" or the seriousness of the offense considered with any prior record.3 Guidelines have generally provided detailed measures of offense severity and criminal history, relying on courts to consider other relevant sentencing factors. Proportionality is one of the most important principles in establishing a fair and equitable sentencing system. In setting sentences that are proportional, two dimensions are considered: ordinal proportionality, which refers to the setting of punishments relative to the offenses, and cardinal proportionality, which refers to the "absolute severity levels . . . chosen to anchor the penalty scale."4 Sentencing commissions generally begin drafting guidelines by placing offenses into levels of severity and then assigning penalties (prison, intermediate punishment, or probation and sentence lengths) to these severity levels. Commissions therefore establish sentences proportionate to each other (what von Hirsch refers to as ordinal proportionality5). For example, if the sentencing commission establishes a 2-year term of incarceration for assault with serious bodily injury and a 1-year term for assault with bodily injury, the assault with serious bodily injury is considered twice as severe as the assault with bodily injury. Cardinal proportionality, however, determines the overall penalty structure. For example, the USSC used the mandatory penalties established by Congress as its benchmark. Consequently, the overall scale of sentencing guidelines for Federal drug sentences are the drug mandatory sentences set by Congress. Similarly, the State of Washington's Sentencing Guidelines Commission (WSGC) chose its mandatory sentences for violent offenses to establish their most severe sentence recommendations. When establishing other penalties, WSGC worked down from these recommendations. Truth in Sentencing A recent theme of the structured sentencing reform movement is truth in sentencing. Truth in sentencing attacks sentencing models that allow offenders to serve only a portion of their imposed sentence. According to the U.S. Department of Justice, the average sentence imposed in 1990 was 65 months, while the average time served in prison was 22 months, or 34 percent of the sentence.6 Truth in sentencing is a legislative means of restoring public confidence in their criminal justice system by requiring offenders to serve their full (or almost full) sentences. Such legislation brings certainty and predictability to sentencing. Most truth in sentencing systems adopt several essential ingredients. First, they generally eliminate the indeterminate sentence, replacing it with a determinate sentencing format. Second, the sentence reflects the actual amount of time an offender will serve, with very limited amounts of good or earned time deducted from the sentence. Third, the parole release decision is eliminated, but postrelease supervision is usually retained. Such a sentencing system increases certainty and predictability for the duration of confinement. However, in most such systems, the decision about who will be incarcerated is less structured and less predictable. The discussion of the California and Illinois determinate sentencing systems in Chapter 2 exemplifies the uncertainty of the confinement decision under these determinate sentencing systems. When combined with statutorily enacted truth in sentencing provisions, sentencing guideline systems can reduce disparity and increase certainty about the decision of incarceration. Because sentencing commissions often concern themselves with both correctional resources and unwarranted sentencing disparity, they generally address the length of incarceration and who is incarcerated. Moreover, as sentencing guideline systems evolve over time, they are focusing on the vast array of intermediate punishments that States are developing. Thus, incarceration is often being exchanged for intermediate punishments such as house arrest, intensive supervision, and drug treatment. Prison Crowding Severe prison crowding stimulated the growth of sentencing commissions and sentencing guidelines in many States. The crisis of prison crowding strains State budgets and requires States to reassess their correctional resources. Several States with guidelines indicated that the problem of crowding became so severe that it drove the creation of a sentencing commission and capacity-linked sentencing guidelines. Who is incarcerated and for how long was an issue not only of fairness but also of economics. Many State correctional systems are being pressured to relieve prison crowding. In response, some States have implemented emergency release measures, accelerated parole release, and instituted other methods to control inmate populations. Moreover, States that have built additional space and avoided court intervention are facing skyrocketing correctional budgets. State legislatures must deal with many demands on extremely tight budgets. With correctional growth taking an increasingly large share of State budgets, legislators are looking for ways to manage the growth of correctional populations and thus the growth of the correctional budget. Consequently, some States have turned to commission-authored sentencing guidelines and the reform of sentencing structures to control who should go to prison and for how long. The guideline systems offer the ability to project future prison populations. Within the guidelines, resource-sensitive policy choices can be made and, if necessary, adjusted to manage expensive correctional capacity. The experiences of Minnesota, Oregon, and Washington are instructive in that these States have developed guidelines to manage who goes to prison and for how long. These States can therefore anticipate future needs and can focus prison resources on specific offenders, thereby conserving prison resources and ensuring space for violent offenders. Overcrowding is not divorced from the issue of fairness. Overcrowded prison populations can create dangerous and unlawful environments for the management and treatment of offenders. The principles of fairness and humanity dictate that offenders are provided a reasonable living environment. Thus, both guideline and nonguideline States have established capacity limits to reflect fairness as well as economic concerns. Sentencing Commission Structure, Mandates, and Organization Well-conceived enabling legislation is crucial for the success of a sentencing commission and its guidelines. First, the legislation identifies participants in the development of the sentencing guidelines (commission members). Second, it sets forth the legal mandates for the commission such as factors that must be considered in writing guidelines. Third, it establishes the implementation process and enforcement mechanism of the guidelines. Finally, it communicates the political agenda to the commission. In the following section, these and other aspects of a sentencing commission's structure and organization are reviewed. Commission Membership Data identify States that have established sentencing commissions, along with the membership and size of each commission. These data illustrate the range in commission size (from 7 on the United States Sentencing Commission (USSC) to 28 in North Carolina) and commission diversity. It should also be noted that except for USSC, all of the State sentencing commission members serve as part-time members. Commission membership and size reflect the interests of a State in creating a commission and the groups that are defined as significant in writing sentencing guidelines. For example, on Pennsylvania's 11-member sentencing commission, which is not mandated to manage or consider prison population size, corrections is not represented. Judicial and legislative appointments represent more than three-fourths of the commission's membership. When Pennsylvania's commission was created, its prisons were not suffering from overcrowding: there was apparently no need for a strong corrections presence. Because judges and legislators were seen as the major sentencing constituents, they played significant roles on the commission. Susan Martin juxtaposed Pennsylvania's judicially and legislatively focused commission with Minnesota's representation, which included private citizens and correctional representation.7 According to Martin, this difference in membership is a significant reason for Minnesota's sensitivity to correctional resources, compared with Pennsylvania's greater sensitivity to a political agenda. Kramer et al. assessed the impact of this difference in their study of the policy choices.8 They applied the Minnesota, Pennsylvania, and Washington guidelines to more than 8,000 felony cases and found that Minnesota and Washington, with their focus on correctional capacity, established guidelines that preserved resources for violent offenders in the State system. Pennsylvania, with no capacity constraint, had a more punitive guideline system overall. The severity of Pennsylvania's sentencing was based primarily on its more severe sentences for nonviolent offenders. The most obvious reasons for these differences were the legislative mandates for the Minnesota and Washington sentencing commissions to consider prison capacity and the representation of correctional interests on their State commissions. Pennsylvania had neither and consequently wrote guidelines increasing certainty and length of incarceration.9 The type and breadth of representation on State sentencing commissions influence the quality of the guidelines that are written and the ability of a commission to ensure implementation of the guidelines. For example, an interview with Robin Lubitz of the North Carolina Sentencing and Policy Advisory Commission revealed that its 28-member commission was a tremendous asset in developing support for both the concept of sentencing guidelines and the guidelines themselves: . . . although that size made it very difficult in the beginning, when it coalesced it was a potent force. So in retrospect if I were to do it again, I would probably have a Commission about the same size even though if you had asked me that a couple of years ago I would have said it was much too big to be effective.10 Oregon's guideline development process is another example of how broad-based participation fostered commitment to the guidelines among different criminal justice factions. Kathleen Bogan, former Executive Director of the Commission, indicated that: The strength of Oregon's approach was that all three branches of government, including judges and legislators, participated in the development of the guidelines at the council level, while at the same time avoiding any unconstitutional mix of the three branches in a promulgating body, thus broadening support for and understanding of the guidelines.11 The Oregon sentencing commission consists of judges, defense attorneys, prosecutors, legislators, and criminal justice professionals (including corrections officials). The Oregon experience illustrates the principle that when various groups contribute to the development of a guideline system, members of those groups will more likely take a proprietary and supportive interest in the final product. Sentencing Commission's Mandate and Purposes There are several important themes adopted by legislatures as principles under which a commission is to operate that emerge, as do several principles to be fulfilled by commission guidelines. This section presents some of these themes for States considering the creation of a commission or for States with commissions that may be considering revisions of their commissions' mandates. Purpose of Sentence. Judges have historically been responsible for passing sentences for diverse and conflicting purposes, including to rehabilitate, deter, incapacitate, restore, and punish. Many commissions are mandated to accomplish these purposes, whereas others prioritize them. For example, Arkansas, a State that recently implemented its guidelines, endorses all of these purposes of sentencing in its legislation, but leaves how to accomplish them to the guidelines and to the discretion of the judge implementing the guidelines. Clearly, many of these purposes of sentencing contradict each other: if one takes priority, the ability to accomplish another one is diminished. For example, when a sentence is intended to "punish an offender commensurate with the nature and extent of the harm caused by the offense, taking into account factors that may diminish or increase an offender's culpability,"12 how can this punishment be consistent with policies attempting to rehabilitate the offender? Commensurate punishments may sometimes be consistent with rehabilitative sentences; however, more often than not, the sentence imposed to meet a punishment goal will be inconsistent with a sentence passed to rehabilitate an offender. Minnesota's enabling legislation seems to recognize the potential dissonance among the goals of sentencing and sets forth a mandate stating that "[D]evelopment of a rational and consistent sentencing policy requires that the severity of sanctions increase in direct proportion to increases in the severity of criminal offenses and the severity of criminal histories of convicted felons."13 Although the reference to criminal history might have spurred the commission to develop an ineffective model, the commission used this mandate to adopt a modified just-desert model of sentencing. Pennsylvania adopted guideline modifications whose purposes vary depending on the severity of the offense and the severity of a defendant's prior record. Although Pennsylvania emphasizes punishment overall, the commission prioritizes other purposes that it has created in the guidelines. About offenders receiving sentences that call for relatively short terms of incarceration or that allow for nonconfinement options, the Pennsylvania commission states, "Many [of them] . . . suffer from drug and/or alcohol problems and the court should consider a treatment component to address the rehabilitative needs of such offenders."14 It should be noted that legislatures have failed in most circumstances to prioritize the purposes of sentencing; this failure has left the commission with the difficult responsibility of drafting sentencing guidelines that must address conflicting purposes. In most cases (except in Minnesota), commissions have therefore developed guidelines using measures of offense severity and criminal history, leaving to the courts the discretion to aggravate and mitigate the sentence as a means of considering rehabilitation and other sentencing purposes. Fairness and Certainty. According to data, many States direct their sentencing commissions to make sentences fair and certain. The concept of fairness and certainty is inherent in the reform of sentencing models such as the replacement of indeterminate sentencing with determinate sentencing. This reform usually involves the elimination of parole release, or the allowance of good time that varies from a 33-percent reduction in Minnesota to a 15-percent reduction in the Federal determinate sentencing guideline system. The guideline system constructed by the commission includes the ranges within the guidelines, the standard on appeal when the court departs from the guidelines, and the consideration of factors that may allow the court to consider what social scientists call extralegal factors, including education level and employment status. Minnesota's enabling legislation directed that "[S]entencing should be neutral with respect to race, gender, social, or economic status of convicted felons."15 The Federal system and Tennessee's enabling legislation contained similar mandates. Other States generally do not address these issues; the consideration of factors such as education and employment status, which may be indirectly racially linked, are therefore allowed unless the commission sets forth such a policy in the guidelines. Correctional Capacity Mandate Many State legislatures direct their sentencing commissions to consider prison capacity as they develop guidelines. This fact suggests the importance of prison crowding in the creation of sentencing commissions. In many instances, the enabling legislation requires the commission to estimate the fiscal impact of the guidelines on correctional resources. Minnesota, Oregon, and Washington have enabling legislation that requires guidelines to consider correctional resources. Minnesota's legislation set a precedent in 1978 by specifying that " . . . the commission shall take into substantial consideration correctional resources . . . " and Oregon's legislation states that "factors relevant to appropriate sentencing include . . . effective capacity of State and local corrections facilities. . . . "16 Washington was specifically mandated to make "frugal use of the state's resources." Its enabling legislation requires (1) the sentencing commission to study State correctional capacity, projecting the impact of guidelines on that capacity; and (2) the commission to prepare alternative sentence recommendations that do not exceed capacity (if guidelines are projected to exceed prison capacity). Furthermore, the legislation enables Washington's governor to declare a state of emergency regarding State prison crowding and to call the sentencing commission into emergency meetings to deal with the crowding situation. The issue of capacity restraint is important for limiting the severity of sanctions (number incarcerated and length). Susan Martin's research on the guideline process in Minnesota and Pennsylvania concludes that Minnesota's adoption of a capacity agenda imposed reasonable restrictions on the ability of the sentencing commission to rely on imprisonment as a sentencing option and a foil to critics who pushed for greater severity. Martin argued that the Minnesota Commission created a rationale for reasonable restraint on the capacity to punish.17 On the other hand, Pennsylvania, acting without a prison capacity limit on its guidelines, struggled to counter arguments for harsher penalties.18 Method of Adoption The method of adopting guidelines is important because it defines the final author of the guidelines and how strictly the guidelines are to be applied. There are three basic approaches to adopting guidelines. The first approach entails creating a commission mandated to draft guidelines that must be submitted in bill form to the legislature. For example, in Washington the legislature may adopt the guidelines as submitted, reject them, or amend them. The second approach is to delegate the commission to write the guidelines that become law even without further action on the part of the legislature. For example, in Pennsylvania 90 days after guidelines are submitted to the legislature, they become law unless a concurrent resolution to reject is passed. A third approach is the use of administrative rules or administrative order. Wisconsin's guidelines, enabled in bill form and legislated, are adopted through administrative rules, promulgated by the commission, and approved by the legislature. Delaware's guidelines, however, are issued by an administrative order from the Supreme Court. Each approach has advantages and disadvantages. Guidelines legislatively passed in bill form become law and obtain the standing of law. The major concern with such a process is that the legislature will either fail to act on the bill or will amend it during its passage. For example, New York's sentencing commission's guidelines were submitted in bill form but were never passed by the legislature; the commission's funding was eventually discontinued, causing its dissolution.19 Some blame such failures primarily on the commission's inability to obtain commitment to its guidelines.20 More recently, Tonry has recognized the political problems facing commissions.21 The political advantages of legislatively enacted guidelines result from the explicit support of the legislature and the governor as an outgrowth of direct legislative action. Legislative enactment dissolves any constitutional concerns such as those involving judicial participation in a legislative body (as in Pennsylvania) or delegation of authority by the Congress to a commission whose members are all appointed by the President (as in USSC).22 Furthermore, appellate courts reviewing sentencing under legislatively adopted guidelines may be more likely to review sentences on substantive (and not just procedural) issues, although this is not yet established.23 By contrast, under the "adopted unless rejected" approach such as exists in Pennsylvania, guidelines are enacted by the legislature's failure to reject them. Although such commissions are delegated much more power, the guidelines may have less standing under appellate review, and there may be constitutional concerns with legislative delegation to a commission whose members come from the judiciary and are appointed by the governor. Implementation through administrative rules or orders also has advantages and disadvantages. Delaware, a State whose guidelines are issued through administrative order by its Supreme Court, finds that this process allows substantial flexibility. Implementation of and amendments to any recommendations are possible within a relatively short time, and amendments are not as likely to be rejected or altered by the Supreme Court. However, sentences imposed under guidelines issued by administrative order generally are not appealable; the guidelines are therefore merely voluntary. The choice as to which model to follow may reflect the willingness of legislatures to delegate authority and/or to become more significantly involved in establishing sentences. North Carolina, whose guidelines are submitted in bill form, has a tradition of strong legislative control. Its legislature was averse to delegating broad-based power to the sentencing commission.24 However, legislative enactment risks the passage of amendments to the guidelines or failure to implement them. In New York, the legislature thwarted the guideline movement by failing to pass proposed guidelines.25 Such occurrences are rare but demonstrate the risks involved in requiring legislative enactment. The most common approach is to require the adoption of guidelines in bill form. It should be noted that Florida moved from a "failure to reject" approach to legislatively adopting its guidelines. The State of Washington, on the other hand, has researched changing its approach from legislative adoption to the failure to reject approach. Financial Support Strong legal and broad-based political support are important aspects of the ability of a sentencing commission to write guidelines. However, it is essential that adequate financial support be obtained for a commission to study past sentencing practices in the State; study what other States have accomplished; prepare reports and proposals for the commission to consider; pay for the commission to meet regularly and hire consultants when necessary; provide ongoing feedback to the court and other governmental agencies; monitor and evaluate the impact of guidelines; and conduct other basic and applied research on a large variety of sentencing issues. Cost varies considerably among States, depending on commission needs. The annual costs for States range between $250,000 and $650,000. If insufficient resources are provided for a commission's work, the risk of failure increases. The commission needs independence to hire adequate staff, to pay for travel, and to support other basic functions and activities. It is crucial that the commission's ongoing functions of monitoring guidelines, revising guidelines, and assessing the impact of legislation and other functions taken on as part of its sentencing function be fully considered and that adequate funding be provided. As a side note, a number of commissions that have successfully implemented guidelines have realized increases in budget and in staff size in the post-implementation years. These increases are the result of continually increasing responsibilities placed on the commissions by the legislature and the cost of monitoring and evaluating guidelines. Commission Support Staff Organization The size and composition of staffs supporting the work of sentencing commissions is relatively similar among States. USSC is the one exception to this rule. In 1991 USSC had 100 full-time staff and an appropriation close to $8.5 million. State sentencing commissions have implemented guidelines systems with 3 to 22 full-time staff members. Most States have had between five and seven full-time staff members during guideline development and implementation stages. Washington and Pennsylvania initially had five full-time and one half-time staff members, and Minnesota had seven. More recently, North Carolina has been operating with a staff of seven. Staff composition in the States has been heavily weighted toward social science researchers.26 Staffs are generally composed of an executive director, a policy director, a research director, an administrative assistant, and a secretary. Additionally, States have hired research associates (usually at least one with statistical experience) and data coders/input operators to supplement research efforts. Generally, commission staffs can be called upon to perform any of the following functions: designing and implementing a data collection system; providing information on the status of sentencing patterns; projecting the impact of any changes that guidelines might have on current trends; drafting guideline policies; monitoring appellate court decisions; conducting training and education seminars related to the guidelines; answering questions over the telephone on guideline application issues; and preparing meeting materials for the commission. Typically, at least one staff member maintains regular contact with legislators and legislative staff members. Commission Meetings The frequency with which commissions meet varies among States. In the initial stages of guidelines development, meetings are held much more frequently than after implementation. In fact, it is not uncommon in the early drafting stages for commission members to spend evenings, weekends, and multiple days per week in meetings. Some States have defined the minimum frequency for meetings in their enabling legislation. For example, in Arkansas and Pennsylvania, the enabling legislation dictates that the commission meet at least quarterly. After the initial stages, some States have regularly scheduled meetings. For example, the State of Washington has scheduled standing meetings for the full commission for the second Friday of the month; to cancel these meetings, they must be taken off the schedule. Adequate travel funds must be budgeted to support the frequent meetings and overnight stays required for a commission to meet its deadlines. Guideline Implementation The power of a commission to implement and monitor sentencing varies according to its enabling legislation. However, the enabling legislation should give a commission the authority to train judges, prosecuting attorneys, defense attorneys, probation officers, and others in the sentencing process. Strong enabling legislation also authorizes commissions to establish statistical monitoring systems. A statistical monitoring system allows a commission to assess the impact and quality of guideline implementation and to identify areas that need revision. For example, a commission may depend on the courts to accurately interpret the guidelines and to review justifications for departures from the guidelines. ABA standards state that the commission "should also be charged with responsibility to collect, evaluate and disseminate information regarding sentences imposed and carried out within the jurisdiction."27 Guideline Enforcement The presumptiveness of guidelines ultimately stems from the process by which sentences are reviewed. Without an enforcement mechanism, guidelines are merely voluntary and so may have little impact on changing sentencing practices. The common procedure is to provide for appellate review, with the review to be initiated by either the defense or the prosecution. The term "presumptive" is often used to describe guideline systems that rely on appellate review as an enforcement mechanism. Guidelines (such as those for Arkansas) that allow for no review are referred to as voluntary: The guidelines must be considered, but judges are free to depart without challenge. Rather than a dichotomy, this situation is more of a continuum from voluntary to very presumptive. The degree of presumptiveness is based on whether some form of appellate review exists and, if so, what standards the courts are held to on appellate review. Little research on or discussion of this issue has occurred, despite the hope that guidelines would stimulate a common law of sentencing. However, the works of McCloskey28 and Del Sole29 offer some information. The least presumptive (voluntary) form of guidelines would resemble the guidelines of Arkansas and Virginia, which do not allow appellate review of sentences. In States with some form of review, two factors affect the presumptiveness of guidelines. One of the most significant factors is the standard for departure that is established in the statutory mandate. Enabling legislation might specify "unreasonable" sentences as those that warrant a judge's departure from sentencing guidelines, as in Pennsylvania; or legislation might define a much higher standard, such as "clear and convincing" reasons for departure, as in Minnesota. The second factor is the interpretation that the appellate courts place on the terms. Obviously, the higher the standard, the greater the likelihood that the appellate courts will hold the lower court more accountable for departures. Similarly, the lower the standard, the greater the likelihood that the appellate court will allow greater latitude in departures from guidelines. During the 12 years that the Minnesota and Pennsylvania guidelines have been in effect, significant differences in how appellate courts review guideline cases have arisen. A comparison of the appellate review process in Minnesota and Pennsylvania concluded that the Minnesota appellate courts substantively reviewed sentences for the quality of the sentencing decision in reducing disparity. Pennsylvania's appellate courts, on the other hand, established a procedural appellate review approach that merely asks whether the trial court followed the proper procedures in applying the guidelines.30 In part, enforcement determines the presumptiveness of the guidelines. Voluntary guidelines and those without some explicit enforcement mechanisms, like the guidelines of Michigan and Virginia, are generally considered voluntary: judges are expected to consider them, but there is no appellate review if the judges do not conform to them. On the other hand, guidelines such as those of Pennsylvania, which have a relatively low standard under appellate review, are less presumptive than the Minnesota guidelines with the appellate standard of clear and convincing. Sentencing guidelines constrain judicial discretion to consider various factors and to determine the specific sentence. The jurisdictions having sentencing guidelines approach the standards to depart from the guidelines differently. Some have left that issue to the enabling legislation. Other commissions took the initiative and established their own standards. Minnesota's commission, for example, established the standard of clear and convincing evidence to depart from the guidelines. Similarly, Oregon's commission articulated a substantial and compelling standard for departures. North Carolina took a somewhat different approach. North Carolina's guidelines provide a standard range and a range of sentences for aggravating and mitigating circumstances. The guidelines provide for three types of penalties: active punishment, which is a sentence in the State prison system; intermediate punishment, including residential facilities, electronic house arrest, or intensive supervision; and community punishment, which is supervised or unsupervised probation that may include outpatient treatment, treatment alternatives to street crime, community service, restitution, or fines. If the guidelines call for an active prison sentence, the court may impose intermediate punishment, but only when it is found "that extraordinary mitigating factors of a kind significantly greater than the normal case exist and that they substantially outweigh any factors in aggravation."31 The effect of this approach in North Carolina is to draw a firmer line around the active prison sentence, increasing the likelihood that the guidelines will result in the incarceration of more serious violent offenders, as intended. Presumptiveness is important to a State's ability to project prison populations. Enforcement and presumptiveness of sentencing guidelines are important considerations for a legislature when creating a commission. The more presumptive the guidelines, the greater the confidence that the guidelines will control judicial discretion and achieve the goals of the legislation, including controlling prison populations. The more constraints imposed on judges by the guideline ranges, the more predictive are the State's prison populations. Moreover, the more presumptive the guidelines, the stronger the argument that mandatory penalties are not necessary. On the other hand, the more presumptive the guidelines, the higher the risk that the "invisible side" of criminal justice will become greater, with prosecutors bargaining on charges or prior records to avoid the commission's guideline range in favor of the local criminal justice culture's range.32 This issue is complex and lacks a clear-cut best policy. However, it is a policy issue that drafters of guideline-enabling legislation need to consider as they write the enabling legislation. Political and Legal Context Reform efforts build on existing political and legal structures. The more successful national efforts consider the political environment and grant their commissions the power and resources to fulfill their responsibilities. However, a State's statutory structure may not be conducive to building sentencing guidelines. With States consolidating their criminal statutes into broadly defined offenses over the past century, the imposition of sentencing guidelines exacerbates the problem of reducing disparity. Realizing this fact, Tennessee officials had their sentencing commission undertake the complex task of revising the criminal code. The criminal justice system brings together local and State agencies. The success of State guideline systems may well rest on the willingness of courts to implement the guidelines as intended.33 This process may seem simple: adopt guidelines, and they will be implemented. Foresight, planning, careful coordination to ensure the quality of sentencing guidelines, and consideration of those who must implement them are crucial to success. In fact, these factors should be evaluated and considered as early as possible in the drafting of the enabling legislation. Expectation of criminal justice reforms must not be too high. Eisenstein and colleagues conclude from their study of court communities in three States that "implementation of reform is not perfect."34 The court community resists change being imposed upon it. Guidelines are viewed as attempts to change the "going rates" for particular offenses. These guideline rates may not be consistent with the rates that have been developed in the local court. While local going rates are not always invariant, going rates provide rewards to the court community. Going rates fulfill a sense of justice, are efficient, and are effective. In fact, Eisenstein and colleagues conclude from their research that the "more radical a proposed change the less likely is its adoption."35 This conclusion is contradicted by the Spohn and Horney study of legal reforms of rape laws, which found that the more significant the reform, the more likely it is to affect court behavior.36 Research is contradictory, and each State must determine how best to approach the problem, depending on the relative autonomy of judges and the political context. Each State must, however, thoroughly consider the implementation of its guidelines if it is to meet its goals. Ongoing Monitoring of the Guidelines Resistance to reform parallels the resistance noted in the organizational literature, which suggests that participation in the development and implementation of guideline reforms by those who must implement the changes increases the likelihood of change. Sentencing reforms frequently demonstrate immediate changes, only to have practices quickly return to prereform levels.37 One reason for this phenomenon is that the initial attention and publicity surrounding a new law diminish, with the behavior of offender and system returning to prereform patterns. Another reason is that the changes are often mandated by a State agency. If the State agency fails to obtain the commitment to address the practical concerns of local officials who must implement the reform, then there is little chance of sustained effect. It should be emphasized that the participation of those who must implement the reforms is crucial; the implementation and monitoring are also necessary to sustain the reforms. Even with these systems in place, Minnesota's guideline system experienced backsliding (although not to preguideline levels) during the second and third years after implementation.38 Local Court Culture Although guideline systems are intended to structure discretion, local practitioners may undermine the implementation of the guidelines if they disagree with the concept of a guideline system. For example, trying to change the sentencing practices for offenses on the basis of the offense of conviction may result not in changes in sentencing, but in a shift in prosecutorial practices to "adjust" to the intended change, keeping the end result the same. An effective guideline system requires the enabling legislation and the guideline advocates to consider the local legal culture and how guidelines could fit into that culture. Defining the stakeholders and including them in the development of the guidelines facilitate acceptance. Their involvement is important in the early stages of development because the creators of the guidelines often take ownership of the project, serving as educators and marketers of the guidelines. According to a former executive director of the Washington State Guidelines Commission, serious thought should be given to maintaining the continued involvement of stakeholders and obtaining commitment from new stakeholders as positions turn over.39 Furthermore, if change requires financial investment by local government, resistance by county commissioners or local government officials should be anticipated. One way to obtain increased commitment from local courts is to include members of local criminal justice systems on the commission. Soliciting and carefully considering local input for the guideline writing process enhance the potential for guidelines to fulfill their goals. Broad-based support generated during the writing of the guidelines enhances a commission's ability to obtain acceptance and ensure smooth implementation. Political Acceptance The political acceptability of guidelines should also be considered when a sentencing commission is being created. The credibility of the commission and the acceptability of its guidelines are diminished when only minimal support exists for commission goals or when a commission is established solely to forestall other agendas.40 Little research has been done on the political context of sentencing guidelines.41 However, commissions have struggled to gain acceptance for guidelines where there is little commitment to values such as truth in sentencing, reducing discretion, conducting appellate review of sentences, or controlling prison populations. A commission, once created, can help generate support for itself; however, the experiences of New York and South Carolina--where commissions have been unsuccessful--indicate that this may not be adequate. A relatively new approach to politics and sentencing is the 1994 Oregon referendum on sentencing. In its 1994 election, Oregon passed referendums that significantly affect State sentencing guidelines. These referendums established mandatory minimum sentences for a wide range of offenses, including robbery, assault, murder, and rape. Staff at the Oregon Sentencing Guideline Commission have indicated that the mandatory sentence would apply to approximately 1,200 offenders. Previous sentencing practices under the guidelines sent 61 percent of the offenders to prison and passed alternative sentences on 39 percent. Mandatory sentencing provisions also increase the length of incarceration. For example, the average incarceration sentence for the type of robbery covered under the referendum is 57 months, but the new mandatory sentence will be 90 months. Furthermore, the ballot measure established that juveniles committing specific crimes will be remanded to the adult justice system. This measure will obviously have a significant impact on the courts as well as on the correctional system. Summary This chapter has reviewed the context and authority of the commission on sentencing guidelines. In general, successful commissions were created in supportive environments and were given strong legislative mandates. They were also provided with funding adequate to hire experienced staff and to meet regularly. These factors contributed to--although they did not ensure-- success. Legislatures have developed various approaches for designing and implementing their guidelines. The perceived problems of sentencing differ according to the perspective of the observer. Almost all States have adopted sentencing guidelines to impose some constraints on unfettered discretion; some States also wish to increase certainty and predictability. Other States aim to reduce prison overcrowding and increase truth in sentencing. Both State and local legal culture and the political environment are important to consider in the implementation of a State's guidelines. For example, sentencing guidelines may be politically overwhelming at one time, but as prison overcrowding reaches crisis levels or results in court-ordered constraints, their political acceptability may increase. At some point, the pressure of crowding and the financial cost of new constructions to accommodate rising prison populations may become overwhelming. One issue that should not be ignored is that the sentencing decision will be subjected to scrutiny, requiring a commitment to develop coherent sentencing policy. Research indicates that legislatures that have started this process have learned from it. However, with several States failing to implement sentencing guidelines, the pitfalls of the process become obvious, and a State may decide not to effect change. Nonetheless, in almost all jurisdictions, the sentencing commissions and their guidelines have flourished, despite diverse mandates and different approaches to writing sentencing guidelines. ------------------------------ Notes 1. Goodstein, L., J.H. Kramer, and L. Nuss. "Defining Determinancy: Components of the Sentencing Process Ensuring Equity and Release Certainty." Justice Quarterly 1(1)(1984), pp. 47- 73. 2. Singer, R.G. Just Deserts: Sentencing Based On Equality and Desert. Cambridge, MA: Ballinger. 1979. 3. von Hirsch, A. Doing Justice: The Choice of Punishments. New York: Hill & Wang. 1976. 4. von Hirsch, A. "Equality, Anisonomy, and Justice: A Review of Madness and the Criminal Law." Michigan Law Review 82(4)(1984), pp. 1093- 1112. 5. Note 4. 6. Bureau of Justice Statistics. National Corrections Reporting Program, 1990. Washington, DC: U.S. Department of Justice, Office of Justice Programs. 1993. 7. Martin, S. "The Politics of Sentencing Reform: Sentencing Guidelines in Pennsylvania and Minnesota." In Research and Sentencing: The Search for Reform, vol. 2, ed. A. Blumstein, J. Cohen, S. Martin, and M. Tonry. Washington, DC: National Academy Press. 1983. 8. Kramer, J.H., L. Lubitz, and A. Kempinen. "Sentencing Guidelines: A Quantitative Comparison of Sentencing Policy in Minnesota, Pennsylvania and Washington." Paper presented at the annual meeting of the American Society of Criminology, San Diego, November 1989. 9. However, it should also be noted that the Wisconsin commission has correctional representation but was not specifically charged to restrict prison populations. 10. Lubitz, R. "North Carolina Legislature Considers Sentencing Change." Overcrowded Times 4(2)(1993), pp. 1, 9-10. 11. Bogan, K.M. "Constructing Felony Sentencing Guidelines in an Already Crowded State: Oregon Breaks New Ground." Crime and Delinquency 36(4)(1990), pp. 467-487. 12. See entry for Arkansas in Table 4-2 (not available in this format). 13. See entry for Minnesota in Table 4-2 (not available in this format). 14. Pennsylvania Commission on Sentencing. Sentencing in Pennsylvania: Annual Report. State College, 1994. 15. Laws of Minnesota 1978, Ch. 723-S.F. No. 65-- Subdivision 5(2). 16. Note 11, p. 469. 17. Note 7. 18. Data in Chapter 6 comparing incarceration rates between Minnesota and Pennsylvania (since each has implemented sentencing guidelines) indicate that both States have significantly altered incarceration rates as intended, although other factors such as conviction numbers, decisions by others in the system, and the adoption of mandatory minimum sentencing provisions will influence the incarceration rate. 19. Griset, P. Determinate Sentencing: The Promise and the Reality of Retributive Justice. Albany: State University of New York Press. 1991. 20. Note 7. 21. Tonry, M. "Structured Sentencing." In Crime and Justice: A Review of the Research, vol. 10, ed. M. Tonry and N. Morris. Chicago: University of Chicago Press. 1988. 22. Misretta v. United States 488 U.S. 361 (1989) presents a Federal examination of the issue. 23. Del Sole, J. "Appellate Review in a Sentencing Guidelines Jurisdiction: The Pennsylvania Experience." Duquesne Law Review 31(1993), pp. 419-504. 24. Note 8. 25. Note 7. 26. Knapp, K. "Allocations of Discretion and Accountability Within Sentencing Structures." Colorado Law Review 64(1993), pp. 679-705. 27. American Bar Association. Standards for Criminal Justice--Sentencing Alternatives and Procedures. 3d ed. Boston: Little, Brown & Company. 1993, p. 5. 28. McCloskey, J. "The Effectiveness of Independent Sentencing Commission Guidelines: An Analysis of Appellate Court Decisions in Two Jurisdictions." Paper presented at the annual meeting of the American Society of Criminology, San Diego. 1985. 29. Note 23. 30. Note 23. See also Note 28. 31. North Carolina Sentencing and Policy Advisory Commission. Report of the 1993 Session for the General Assembly of North Carolina. Raleigh, 1993, p. 15. 32. Savelsberg, J. "Law That Does Not Fit Society: Sentencing Guidelines as a Neoclassical Reaction