Research on Sentencing The Search for Reform, Volume II (1983) / Chapter Skim
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5 THE CONSTRUCTION OF SENTENCING GUIDELINES: A METHODOLOGICAL CRITIQUE
5 THE CONSTRUCTION OF SENTENCING GUIDELINES: A METHODOLOGICAL CRITIQUE
Pages 194-264
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From page 194... ...
of guidelines on sentencing practice, e.g., with the complex problem of estimating "compliance" 194
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. The first of these is the collection of data on past sentencing practice.
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From page 196... ...
The basic concept of the Gottfredson-Wilkins model of guidelines is as follows. Decision makers in the criminal justice system -- for example, judges or parole board member -- are given information about the patterns of decision making in their jurisdictions in the past; they then use this information to guide their decisions in the future.
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From page 197... ...
. Each of the cells of the resulting matrix contains the normal range of months or years of incarceration for offenders with the particular combination of offense type and offender score defining the cell.
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From page 198... ...
It is essential to the Gottfredson-Wilkins concept of guidelines that judges or parole board members are not legally required to impose a sentence or fix a term within the range stipulated by the guidelines matrix. They may of course do this; if they do, then no further justification of that sentence or term is required.
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From page 199... ...
other features that Such a system of sentencing gu~delines may have, which although not intrinsic to the process of constructing guidelines may nonetheless have some implications for the analysis of past sentencing (Some of these features were suggested by practice. Gottfredson and Wilkins; others were not, but are exemplified by guidelines now in existence.)
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From page 200... ...
There is certainly an impression conveyed by the literature on this subject that an analysis of past sentencing practice is intrinsic to the concept of sentencing guidelines. All the guidelines developed to date have taken as their starting point a statistical analysis of past practice, the purpose of which was ostensibly to identify those factors most strongly associated with sentencing variation in the past.
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From page 201... ...
It may indeed be agreed that past sentencing practice has been correct on the average, but that there has been too much variation around that average; disparity in this sense of excessive variation need not entail, of course, that sentences in the past were based on morally iniquitous factors such as race or social class. If it is felt that the judiciary's collective wisdom has in the past been generally on target, then research may give a clearer picture of what the targets in question have been; this may help judges to sentence in a more consistent fashion.
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From page 202... ...
THE DESCRIPTION OF PAST SENTENCING PRACTICE I begin by distinguishing, definitionally, between a sentencing policy and sentencing practice. I use the term policy to refer to a description of the various things that enter consciously into the decisions of judges (or parole boards)
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From page 203... ...
and showed that seriousness of offense and length of prior record were the two variables most strongly related to the lengths of time served to parole in the cases studied. They then categorized and crossclassified these two variables to obtain a matrix like the one shown in Table 5-1 above, calculated median times to parole in each of the cells of that table, judgmentally "smoothed" those medians, then bracketed them with .
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From page 204... ...
Seriousness of current offense and length of prior record have been said to be the most important, morally appropriate determinants of sentences in an enormous number of jurisdictions; any study of sentencing practice that does not find these things to be most strongly associated with severity of sentences (at least for adults) has probably measured something incorrectly.
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From page 205... ...
The trouble is that, at present, we have virtually no theory about either policy or practice, once we get beyond a small number of commonsense ideas. This in turn is impor tant, s ince without some k ind of theory, however humble, we cannot possibly decide what information we should obtain about sentencing practice in the past.
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From page 206... ...
It follows that without some sort of theory, we can have no real idea what sort of information to collect in order to give a useful description of past sentencing practice. It would probably not occur to researchers in this field to collect data on green hair and monocularity (or at least I hope it would not)
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From page 207... ...
We also discovered, through interviews and observation, that the recommendations of prosecutors and defense counsel were important determinants of the sentences finally imposed on offenders-though in complex ways that varied considerably among judges and among the four counties in which our field research was done.l9 Had we been carrying out research on past sentencing policy -- or even, more humbly, on past sentencing practice -- in Massachusetts, we could properly have ignored probation officers' recommendations, but we should certainly have collected data on defense counsel's recommendations. Those who carried out the research on which the Massachusetts guidelines are based did just the opposite: They recorded the irrelevant recommendations of probation officers (when these were available from records)
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From page 208... ...
What reason is there to think that it does figure -- even in the handful of cases in which the judge is aware of it? What data on past sentencing practice should be collected?
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From page 209... ...
, and the identities of judge, prosecutor, and defense counsel involved in the case.2 These things will not, presumably, be used in prescriptive guidelines, but they may be important in analyses of past practice, if the notion of empirically based guidelines is to have any meaning. A special problem is posed by the dependent or outcome variables typically used in studies of sentencing practice.
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From page 210... ...
The study of sentence duration, however, was based on all 847 of the prisoners released from state correctional institutions in 1978, either on parole or at the expiration of the sentencers) that led to their commitment (see Minnesota Sentencing Guidelines Commission, 1980:4)
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From page 211... ...
and the maximum, is at the discretion of the parole board. The researchers involved in developing Michigan 'S sentencing guidelines took as their measure of length of prison sentences the minimum terms imposed, on the ground that these reflected the only meaningful use of discretion by judges (Zalman et al., 1979:172)
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From page 212... ...
In the other states in which guidelines research has been done to date, the analyses of past sentencing practice have been based on samples of cases dealt with in, say, a year's time. In Michigan, for example, the sample consisted of 5,909 cases of a total of 26,116 cases sentenced in calendar year 1977 (Zalman et al., 1979)
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in Minnesota, and probably also Pennsylvania) this may have been due to the fact that research on past sentencing practice was never intended to play an important role in shaping future sentencing policy.
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PROBLEMS OF MODEL DEVELOPMENT Having collected data on past sentencing practice, the next step is to analyze those data so as to come up with a model that satisfactorily describes that past practice, which can in turn serve as the basis of sentencing guidelines. This step can involve a number of technical -- mostly statistical -- problems, some of them of a quite formidable kind.
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. O Suppose further that we analyzed these data and found that the best prediction we could make of the sentences actually imposed could be obtained by multiplying the seriousness score by 5.5, so that (predicted prison term in case i)
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Thus for cases whose actual terms are above the regression line, the error term e would be positive; for those below the line, e would be negative. Third, the mathematics of regression as a statistical technique are such that they yield the coefficients a and b, which will produce the 60 54 48 UJ a m° 30 cat cat UJ 42 36 24 18 12 6 o 0 50 100 OFFENSE SERIOUSNESS SCORE FIGURE 5-l Illustration of a Hypothetical Relationship Between an Offense Seriousness Score and Jail or Prison Terms Imposed
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I return to this last point in a moment. Of course, in actuality it would be unreasonable to try to predict sentencing outcomes using only one other variable -- even one so reasonable as our seriousness score.
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This three-step process is by no means unusual in nonexperimental social research; but it can lead to highly misleading results, especially if it is not done with some care and sophistication -- qualities that are unfortunately missing from many of the analyses of past sentencing done by guidelines researchers. To begin with, the models used by all those researchers, so far as I am aware, have been of the simplest possible kind; they have, in fact, been linear additive ones like that described by equation (2)
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From page 219... ...
Such simplicity is both pleasing and useful in many contexts. Yet there is surely no reason to believe that judges' sentencing practice is really like that; indeed, there are plenty of reasons to doubt this.
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max.) .0009.186 49.1 Extent of mental trauma .1390.086 12.0 Bodily beatings -.0720 -.080 9.8 Offender variables Number of incarcerations .093 .198 56.5 Relation to criminal justice system .093 .189 55.4 "Good moves" since arrest .204 .218 69.8 Type of work -.085 -.130 25.7 Reason for leaving school .108 .108 18.1 Drug use status .093 .079 9.6 Alcohol use .045 .084 10.7 Number juvenile violent felonies -.318 -.087 12.2 Residential stability .042 .077 8.8 Detainers outstanding .133 .071 7.7 Adjusted R2 = .31 SOURCE: Zalman et al.
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From page 221... ...
How many models of the kind we are considering need to be developed, in an analysis of sentencing practice that is aimed at the construction of sentencing guidelines for the future? This is a somewhat complex question.50 Reculer pour mieux sautes: The object of the exercise is to identify (without benefit of theory, or of clergy either)
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From page 222... ...
That apart, it seems to have been thought by many of those working in this field that a single "model" of past sentencing practice will suffice; but there are reasons for thinking that this is probably not the case. To begin with, sentencing involves at least two different kinds of decisions, both of which guidelines may purport to regulate.
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From page 223... ...
, the weights given to those factors -- to be estimated by regression equations -- may be different; this is especially likely since, as noted earlier, the length-of-sentence decision should be estimated from data only on those offenders incarcerated, and not on all of those sentenced. This point has been neglected by many guidelines researchers.
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From page 224... ...
. For each category of offenses, the matrix is defined by a number of rows headed "offense severity, n which are in turn defined by the presence or absence of factors relevant to that category of offenses; the columns are defined by categories of "prior record." But the "severity" (row)
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From page 225... ...
In the New Jersey guidelines, the "offender" variables included vary for different categories of offenses; even when variables are called the same thing in two or more different cases, the definitions of the factors concerned often differ. Here, however, it seems likely that these variations -- which purport to be purely descriptive of previous sentencing practice in New Jersey -- would not stand up to closer statistical scrutiny (in particular, validation in the statistical sense explained earlier)
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From page 226... ...
If all previously sentenced cases are analyzed together in the modelbuilding exercise, then some measure of seriousness will be needed to discriminate between, e.g., rape and overtime parking -- especially since this concept is so widely used, by judges, parole boards, and the public, to justify the severity of sentences. In this case, how might such a measure be devised?
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From page 227... ...
To begin with, if the analysis of past sentencing behavior is to have any point at all in this context, it must surely reflect some degree of fidelity to the data on antecedent sentencing practices; otherwise, why do it? To see this clearly, let us consider a situation in which an unacceptable variable (from a guidelines
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From page 228... ...
Suppose that in jurisdiction X data on past sentencing practice are collected and analyzed, and it is found that blacks or other racial minorities were given markedly heavier sentences than whites -- controlling for everything else that might be relevant. Surely this is something that morally sensitive guidelines developers ought to be eager to show, in order to promote the case for their brand of sentencing reform?
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From page 229... ...
Overall, the statistical models developed at this stage may not account for an overwhelming amount of the total variation in previous sentences, even if the statistical work has been better done than that of many guidelines researchers. This may indeed be because there was not much consistency in previous sentencing practice; but it may also in part be because the models themselves, which deliberately incorporate only a few of the most important determinants of previous practice, can yield only a broad-brush picture of the ways in which sentencing was done in the past.
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From page 231... ...
The general point here, I believe, is that in estimating a model that will satisfactorily describe and/or explain past sentencing practice, it is important to exclude any egregious cases in which the imposed sentence is grossly different from what would be expected, given the general pattern of antecedent sentencing. It seems to me that this is so, whether or not a plausible explanation for those deviant cases can be found in the available data.
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From page 232... ...
on the bulk of cases.60 It should be noted that no analysis of residuals -- or, analogously, of mistaken classifications along the "in-out" dimension -- has been presented by any of those who have so far carried out empirical research on sentencing with a view to developing guidelines. FROM MODELS TO GUIDELINES After an analytical model has been found that reasonably characterizes past sentencing practice, the next step (according to the original Gottfredson-Wi~kins concept of guidelines)
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From page 233... ...
and prior record to be the most important determinants of sentence severity; employment status-which was "marginally associated" with the decision to incarcerate in the construction data -- was deliberately excluded from the offender score used in the guidelines. As noted earlier, the Massachusetts guidelines do not take a matrix form, but consist rather of a fairly straightforward transformation of (unstandardized)
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From page 234... ...
9.0 Degree of injury to victim 9.549.0 Seriousness of prior record 1.341.6 (Intercept)
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Suppose that a statistical analysis of past sentencing practice showed that 70 percent of all cases falling within a given cell in a guidelines matrix had in the past been given "out" sentences such as probation or a fine. How can judges be instructed to comply with this finding in sentencing in the future?
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From page 236... ...
who were not incarcerated, do a better job of structuring discretion than this. In summary, the problem is that empirical analysis of past sentencing can yield only probabilities of imprisonment, conditional on various offense and offender attributes; it is difficult to turn these probabilities into effective prescriptions for future sentencing, since it is not easy to follow a rule that says something like , "Do such-and-such 35 percent of the time." It may well be, as Zimmerman and Blumstein (1979)
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. The difficulty remains, however, that designating some cases as presumptively "in" or "out" is likely to lead to changes in sentencing practice.
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From page 238... ...
It is impossible to say just how different the resulting guidelines are from those that would have emerged from a stricter transformation of empirical models. While seriousness of current offense and length of prior record are the major dimensions of most guidelines developed to date, the definitions of these factors, and the scoring methods used to classify cases into guidelines matrix cells, seem in most cases to have been suggested rather than dictated by the analyses of antecedent sentencing practice earlier carried out.
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From page 239... ...
What other consequences do guidelines have, e.g., on case flow, prosecutorial decision making, police practices, or other phases of the criminal justice system? These are questions of the "wait and see" variety; they entail before-and-after comparisons, of a kind with which this paper is not concerned.
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From page 240... ...
Does the offender score, which is usually largely a function of prior record, have the same effect on prescribed sentences for the less serious offenses as it does for the more serious ones -- or is it (for example) having more of an effect when the offense is less serious?
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From page 241... ...
Inspection of Table 5-4(c) shows that this is the case for the cell for high offense severity and "A" prior record, for which the observed midrange is 20 months less than an overall additive structure for the matrix predicts; similarly, in the cell for high offense severity and "F" prior record, the observed midrange is some 17 months greater than the overall additive model predicts.
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From page 242... ...
suggests that for the Michigan burglary guidelines, the lower righthand cell (high offense severity, prior record category "Fn) prescribes terms that on average are almost a year and a half heavier than the overall structure of the matrix would suggest.
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From page 243... ...
been following: The "policy" consisted of according relatively great weight to offense seriousness and prior record in parole decisions. It does not take very elaborate research to show that.
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From page 244... ...
The political role of the research that has been done to date, and the importance of providing a seemingly empirical basis for sentencing guidelines, should not be overlooked. It may well be that, without an analysis of past practice as a starting point, the use of guidelines as a technique for structuring discretion would not have achieved even its present measure of judicial and public acceptance.
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From page 245... ...
4. The structure of the California law is in fact somewhat more complicated than this brief description suggests; there are three base terms from which the sentencing court may choose, the middle one being the presumptive term subject to rules promulgated by the state's judicial council.
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_ _ ~ ~ 10. In interviews with me in 1979, Blalock asserted that there had not been a deliberate attempt to mirror past practice, on the grounds that there had not been a consistent practice prior to the guidelines.
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ah. 244 et seq.; see Minnesota Sentencing Guidelines Commission, 1980:1)
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From page 248... ...
18. On the relations between information in presentence reports (and probation officers' preconceptions as well)
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25. In addition, of course, in some jurisdictions the minimum term to parole eligibility is determined by the minimum sentence imposed by the judge (with or without allowance for Good time")
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In an interview after the sentencing hearing the judge stated that he had passed a "Walpole sentence" precisely because of the difference in parole eligibility rules; he was confident that the defendant would not be kept by the Department of Corrections in Walpole State Prison, where (as it seemed to all concerned) he might have been subjected to sexual attack, etc.
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From page 251... ...
recommendations for sentence by prosecution and defense. In addition, we were told by a number of judges, during our Massachusetts field work, that they paid little or no attention to information in presentence reports in cases in which there had been a trial, since they felt that by the end of the trial they usually knew what sort of person the defendant was.
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From page 252... ...
38. The figure of approximately 11,000 refers to the main categories of offenses for which the New Jersey guidelines were developed; the remaining 5,000 or so cases were a miscellany, including (if I remember correctly)
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From page 253... ...
This is one reason why the grouping of such things as prior arrests (which is often accomplished in constructing offender scores used in guidelines) may introduce relatively little error into the calculation of expected sentences.
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From page 254... ...
47. Unfortunately, the term interaction is sometimes used by statisticians to refer to other things, in particular the situation in which a set of relationships (e.g., between offense and offender variables and sentences)
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. Applications to criminal justice problems include Solomon (1976)
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From page 256... ...
offenses were grouped into broad categories of similar sorts of behavior (e.g., sex crimes) ; within each of these categories, the various offenses were given a seriousness score that was the maximum sentence provided by statute, in months.
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From page 257... ...
However, it seems to me important to try to estimate (at a minimum) what the aggregate consequences of such a change in sentencing practice would mean, e.g., for prison populations; as I note below, only the Minnesota researchers have so far considered this issue.
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(Minnesota Sentencing Guidelines Commission, 1981, gives details and a program listing; the commission's research director, Kay Knapp, should be contacted for further information.)
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From page 259... ...
Wilkins 1967 Some factors in sentencing policy. Journal of Criminal Law, Criminology and Police Science 58(4)
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From page 260... ...
Gottfredson 1980 Decision-Making in Criminal Justice: Toward the Rational Exercise of Discretio_. Cambridge, Mass.: Ballinger.
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From page 261... ...
St. Paul, Minn.: Minnesota Sentencing Guidelines Commission.
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From page 262... ...
Paper presented at the annual meetings of the Academy of Criminal Justice Sciences, Cincinnati, Ohio. 1981 The structure of the Oregon parole guidelines.
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Final report of the feasibility study. Albany, N.Y.: Criminal Justice Research Center.
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Paper presented at the annual meetings of th e Academy of Criminal Justice Sciences, Cincinnati, Ohio.
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