Brian D Johnson. 21st Century Criminology: A Reference Handbook. Editor: J Mitchell Miller. 2009. Sage Publications.
Few decisions in the criminal justice system exert as much influence over the life and liberty of criminal offenders as the final sentencing decision. Judges have a broad array of sentencing options, ranging from fines, restitution, and probation to incarceration in jail or prison. For much of the 20th century, criminal sentencing practices remained largely unchanged in the United States, but the past few decades have witnessed a virtual revolution in criminal punishment processes. A number of different sentencing reforms have been recently implemented or expanded, resulting in a variegated mix of different legal approaches to sentencing in the United States today. This chapter reviews the contemporary state of knowledge on U.S. criminal sentencing. It begins with a brief historical overview of sentencing philosophies, followed by a discussion of modern sentencing innovations. It then discusses research evidence regarding social inequalities in punishments before concluding with a discussion of unresolved issues in contemporary research on criminal punishment in the 21st century.
Historical Evolution of Modern Sentencing Systems
Criminal sentencing in America has long been guided by one of several different major philosophies of punishment, including retribution, deterrence, incapacitation, and rehabilitation (Spohn, 2000). Retributive sentences involve punishments designed to exact revenge, in line with the biblical notion of “an eye for an eye.” This is based on the belief that some behaviors are categorically wrong and therefore deserving of punishment. From this perspective, sentences should be commensurate with the harm done to society in order to exact just punishment. Deterrence, on the other hand, involves a more utilitarian rationale for sentencing. It is based on the notion that crime is freely chosen as the result of a rational cost-benefit analysis. Individuals will engage in crime when the benefits outweigh the costs. The goal of sentencing, then, is to raise the costs of crime, in the form of punishment, to a level that will prevent future crime from occurring. In comparison, incapacitation argues that effective sentences should focus on removing serious offenders from society. Once isolated and secluded, criminal offenders will no longer be able to commit crimes against the public. Finally, rehabilitation as a philosophy of punishment emphasizes individual offender reform. According to this perspective, the goal of punishment should be to address the underlying causes of crime in order to reduce future offending. Although in practice these various sentencing rationales often coexist, throughout history major changes in sentencing have often followed paradigm shifts in predominant philosophies of punishment.
The Fall of the Rehabilitative Ideal
During colonial times, criminal sentencing in America was premised initially on retribution and then later on deterrence (Walker, 1998). By the late 1800s, however, sentencing in America had become thoroughly dominated by rehabilitation. The goal of criminal punishment was to reform the offender by altering the underlying causes of crime. In order to accomplish this, criminal sentences had to be sufficiently flexible to be individually tailored to the unique needs of particular offenders. This led to a system of punishment known as “indeterminate sentencing,” so named because the exact term of punishment was often uncertain. Sentences often involved wide ranges, with minimum and maximum terms that could stretch from a single day to life imprisonment. These broad sentence ranges provided maximum flexibility for determining when an offender had been rehabilitated and when he or she was therefore ready to be released back into society. Judges at sentencing would determine the broad ranges of punishment, and then release decisions would be made by prison authorities or parole boards, who exercised considerable discretion in determining the actual amount of time served. Although indeterminate sentencing was based on a rehabilitative philosophy of punishment that emphasized the unique individual needs of different offenders, it is important to note that often the programs implemented in prison to target those needs were poorly funded and administered (MacKenzie, 2001).
Inherent in the rehabilitative philosophy of indeterminate sentencing was an implicit trust that criminal justice officials were able to reform criminal offenders. The 1960s was a period of important social change, though, and during this time trust in the justice system began to be questioned for a variety of reasons. A number of important social movements coincided that raised questions about the effectiveness and fairness of indeterminate sentencing. As part of the larger civil rights movement, a due process revolution swept through the criminal justice system that emphasized the fair and equal treatment of offenders. Prison conditions in particular came under attack following dozens of high-profile prison riots, like the one at Attica, New York, in 1971 that left 33 prisoners and 10 hostages dead after a 4-day standoff with prison officials. Race riots, such as the infamous Watts Riots in Los Angeles in 1965, were also breaking out in several cities; this, combined with the counterculture youth movement and anti–Vietnam War sentiments, helped fuel a growing mistrust of government (LaFree, 1999). Importantly, this period of social discord coincided with a precipitous rise in crime, which some commentators attributed to sentencing leniency associated with the rehabilitative focus of punishment. Over the next 25 years, violent crime would increase threefold, helping to further fan the flames of criminal justice reform while placing the get-tough sentencing movement at the forefront of political discourse in the United States.
Criminological scholarship also contributed to the dramatic changes in criminal sentencing that were about to take place. In 1974, a group of researchers published a comprehensive evaluation of 231 correctional treatment programs and concluded that with few and isolated exceptions, “nothing works” in corrections (Lipton, Martinson, & Wilks, 1975). Known as the Martinson report, this study became a sounding board for criminal justice pundits and reform-minded politicians bent on change, despite the fact that its conclusions were taken out of context and heavily criticized by some. If rehabilitation was ineffective, something else was needed to take its place. Both conservative and liberal scholars lobbied for change, although for different reasons. Conservatives argued that rising crime rates were the product of undue sentencing leniency associated with the rehabilitative ideal of indeterminate sentencing. They argued for a return to more punitive times, limiting the ability of court and correctional agents to mitigate punishments, and placing greater emphasis on law and order. James Q. Wilson (1975), among others, argued for a shift in punitive philosophy toward a crime control model that would emphasize deterrence and incapacitation rather than rehabilitation. Liberal scholars, on the other hand, began questioning the unbridled discretion of judges in the sentencing process. They argued that inordinate discretion led to inequities in punishment, with preferential treatment reserved for higher-status offenders. Most famously, a Columbia law professor and federal judge named Marvin Frankel (1973) wrote a scathing critique of indeterminate sentencing in which he criticized the facts that judges were not required to provide any reasons or rationale for their sentences; their sentences were not subject to systematic oversight or review; and they lacked the training and guidance necessary to achieve uniform, fair, and just sentences. The unfettered discretion of judges under indeterminate sentencing, in his words, was “terrifying and intolerable for a society that professes devotion to the rule of law” (p. 5).
During the 1970s, then, bipartisan support emerged for wholesale change in criminal sentencing, with conservatives wanting to increase the severity of punishments and liberals wanting to curtail excessive judicial discretion. Coupled with rising crime rates and increasing distrust of government institutions, this unusual political alliance led to dramatic and unprecedented changes in criminal sentencing in America (MacKenzie, 2001).
The Determinate Sentencing Revolution
Although a number of states still operate under indeterminate sentencing systems, a distinct shift in sentencing has occurred that has fundamentally altered the modern landscape of criminal sentencing in America. The abandonment of rehabilitation as the core punishment rationale in sentencing left a sharp and unexpected void in terms of both punitive philosophy and public policy. The solution that emerged, in part, was reliance on a new “justice model” of punishment in which the goal of sentencing would be certain, severe, and proportional punishments rather than individual reformation. This was in effect a return to classical ideas rooted in the retributive ideal. The justification for sentencing under this new regime would emphasize “just deserts”—or deserved justice—where the goal of sentencing was to fit the punishment to the offense rather than the offender. Under this new philosophy of punishment, uniformity would replace individualization in sentencing as the paradigm regnant. This philosophical change was at the heart of a larger structural shift toward determinate sentencing. Because rehabilitation was no longer the goal of punishment, there was no reason to sentence offenders to indefinite terms of incarceration; relatively fixed and equal sentences based on the severity of the crime and the prior criminal record of the offender became preferable.
Although determinate sentencing takes many forms, its core definitional requirement is the limiting of case-based discretion by judges and parole officials in sentencing. Under determinate sentencing, broad and uncertain sentencing ranges would be replaced by specific punishments that would be matched to specific crimes. Under this system, parole boards would no longer be necessary. Although determinate sentencing reforms have taken various forms, they all share a concern over replacing the rehabilitative ideal with a new set of sentencing considerations emphasizing greater uniformity, neutrality, certainty, predictability, and severity in punishment. The goal of uniformity in punishment arose out of concerns that unfettered judicial discretion was resulting in wildly disparate punishments for similar offenders. Reforms that emphasize uniformity attempt to ensure that similar cases committed by similar offenders receive equivalent punishments. Similarly, neutrality in punishment means that the law is applied in ways that are not systematically biased against particular classes of offender, such as racial minorities in society. Reforms targeting increased certainty and predictability in punishment place stricter constraints on the amount of time served by offenders. Under indeterminate sentencing, time served was typically much less than the nominal sentence because offenders were eligible for parole release after serving as little as one third of their sentence. The actual term of imprisonment was uncertain and unpredictable, and two sentences of equal length could result in different terms of actual incarceration. Finally, severity of punishment, as a goal of sentencing reform, emerged largely out of the law-and-order movement that attributed rising crime and societal discord to unwarranted leniency in sentencing. An important element in the shift to determinate punishments, then, was an increase in severity of sentences, at least for certain classes of crime like drug and violent offenses.
Modern Sentencing Innovations
Although determinate sentencing innovations all share at least some of these core concerns, they have taken various forms, leaving some commentators to note that sentencing philosophy today lacks a strong, unifying organizational or policy-oriented goal structure (Tonry, 1996). Different jurisdictions have enacted different sentencing reforms, often without adequate concern for their overlap in application. A number of jurisdictions have abolished parole completely, while others have restricted its application in attempts to achieve greater predictability in punishment. Most jurisdictions have also established mechanisms for ensuring that offenders serve a fixed portion of their nominal sentence. Offenders can still earn “good time” credits, but this discount for good behavior is often capped at 15%, so offenders must serve at least 85% of their nominal sentence. These laws are referred to as “truth in sentencing” because they aim to increase the certainty and transparency of the actual time served by the offender. Both parole abolition and truth in sentencing were often enacted along with broader reform efforts designed to achieve additional goals of determinate sentencing. The three most prominent examples of these modern reforms are determinate sentencing laws, mandatory minimums, and sentencing guidelines.
Determinate Sentencing Laws
As early as the 1970s, a number of states, such as California, Illinois, Arizona, and Colorado, began experimenting with determinate sentencing systems based around statutorily defined penalties. These “determinate sentencing laws” shifted sentencing discretion from the judge to the state legislature. Rather than allow the judge to sentence offenders to broad, open-ended terms of incarceration, specific sentences or sometimes narrow sentence ranges were codified in the criminal statutes themselves. Although legal statutes already determined maximum penalties for most crimes, determinate sentencing laws narrowly focused the limits of judicial sentencing authority. In some states, like California, which still operates under this system, aggravating and mitigating sentences are also specified, but judges must provide explanation of the unusual circumstances that warrant these sentencing adjustments.
Determinate sentencing laws dramatically constrained the sentencing discretion of judges and shifted sentencing power to a new player in the justice system—the legislative body. Some of the complications and criticisms of this sentencing innovation revolve around the inherent complexity involved in determining fixed punishments for every possible crime. Because state punishment codes cover hundreds of different offenses, it can be very difficult to assign specific punishments to every offense. Moreover, determinate sentencing laws can make it difficult to account for the full range of offense characteristics that make some crimes more serious than others. Many judges felt disenfranchised after the enactment of determinate sentencing laws, and critics argue that these laws shift sentencing discretion to the prosecutor, who determines the charge of conviction in the case. Moreover, there is disagreement about the appropriateness of having politically elected bodies like state legislatures determine the legal parameters of appropriate punishments. Because legislative bodies are publicly elected, they may be particularly prone to short-term political influences surrounding crime and punishment. They also are unlikely to have the specialized expertise or necessary legal resources to effectively gauge appropriateness and proportionality in punishment. Although determinate sentencing laws hold the potential to promote statewide uniformity in sentencing, for these and other reasons they have only been selectively implemented in a limited number of states. However, they did help pave the road of sentencing reform for other innovations like mandatory minimums and sentencing guidelines.
Mandatory Minimum Sentences
Mandatory minimums are similar to determinate sentencing laws in that they involve legislatures passing fixed penalties, but they differ in that these laws are applied selectively to specific offenses and offenders, and they only establish statutory minimums, not maximum penalties. For these cases, judges can sentence qualifying offenders above the required minimum but not below it.
The modern history of mandatory minimums is one of extremes. Although they have long existed in milder forms for most of U.S. history, mandatory minimums were categorically repealed by Congress in 1970 (Tonry, 1996). This was at the height of the indeterminate sentencing movement, and under the rehabilitative ideal it made little sense to have fixed minimum punishments that would result in some offenders remaining incarcerated after they were successfully rehabilitated. Sentence lengths needed to be flexible enough to account for individual differences in rehabilitative potential. Soon after, though, rehabilitation fell drastically out of favor, and between the mid-1970s and mid-1980s, every single state reenacted various mandatory minimum laws, making them the most prolific of the modern sentencing reforms. The federal system alone has more than 100 different mandatory minimum sentences.
Most mandatory minimums target drug, violent, or firearms offenses, or they are designed specifically to punish repeat offenders. Mandatory minimums that apply to repeat offenders are called habitual offender laws because they are triggered by the offender’s prior criminal record rather than or in addition to the current offense. For instance, in Florida, two prior felony convictions or one prior violent felony makes an offender eligible for a habitual offender mandatory minimum enhancement (Crawford, Chiricos, & Kleck, 1998). When mandatory minimums are applied to a case, they can substantially increase the sentence, and they often require the offender to serve a more significant portion of his or her sentence before being eligible for release.
One particular type of habitual offender law that has been widely popularized is three strikes and you’re out. Drawing upon a baseball analogy, three-strikes mandatory minimums require that offenders convicted of a third serious felony serve 25 years to life imprisonment, often without possibility of parole. These laws rely on a philosophy of punishment known as selective incapacitation because they aim to selectively remove serious repeat offenders permanently from society (Wolfgang, Figlio, & Sellin, 1972). The first of these laws was passed in Washington State in 1993, but they have quickly spread; currently, just over half the states and the federal government have some form of threestrikes law. In most states, three-strikes laws apply to very few criminals, but in a few jurisdictions, like California, they have been broadly defined to apply to a wide spectrum of offenders (Zimring, Hawkins, & Kamin, 2003).
Some commentators point out that mandatory minimum sentences are important for the political and symbolic goals that they achieve. Politicians often favor mandatory sentences because they are perceived to be tough on crime, but once passed into law they can be difficult to amend or repeal because they require formal legislative action to do so. Perhaps the most infamous example of this is the 100:1 crack/cocaine ratio in federal sentencing. Five grams of crack cocaine are all that is needed to invoke a 5-year mandatory prison sentence in federal court, whereas 500 grams of powdered cocaine are required for the same minimum punishment. The tough mandatory minimum for crack cocaine was passed during the war on drugs in the 1980s when political hyperbole surrounding crack cocaine was rampant. Today, because minority offenders are disproportionately convicted of crack cocaine offenses, this mandatory minimum has been harshly criticized for contributing to racial injustices in sentencing (Tonry, 1995). Although the U.S. Sentencing Commission has encouraged that steps be taken to eliminate this disparity, and the Supreme Court recently affirmed the judge’s authority to sentence offenders below the crack cocaine minimum (Kimbrough v. United States, 2007), these sentencing laws at present remain on the books. One solution that has been proposed is to include “sunset clauses” in the passage of mandatory minimums, which would mean that they would be automatically repealed if not renewed by the legislature (Tonry, 1996). Currently, though, this type of legal clause is rare in the policy world of mandatory minimum sentencing provisions.
Although public support for mandatory minimum sentences is often high, they have been repeatedly criticized for various other reasons as well. Academic research provides little evidence of their effectiveness as a crime deterrent, and prosecutors are known to selectively apply them in a limited subset of eligible cases. Some evidence suggests mandatory sentencing provisions target offenses disproportionately committed by minority offenders and are disproportionately applied to minority defendants. There are also dramatic geographic variations in the application of mandatory minimums such that the location of the court impacts the likelihood of receiving a mandatory sentence (Ulmer, Kurlychek, & Kramer, 2007). Moreover, dismissal rates for some mandatory sentences have increased dramatically after their passage, suggesting prosecutors and judges take instrumental steps to selectively avoid application of these procrustean penalties. When mandatory minimums are invoked, they almost always result in sentences that are substantially more severe than they would be otherwise. In many jurisdictions, little effort has been made to adequately reconcile mandatory penalties with other structured sentencing approaches, such as sentencing guidelines, which have been a more popularly received sentencing innovation for a variety of reasons.
Perhaps the most significant development in determinate sentencing has been the widespread implementation of sentencing guidelines, which have become a popular vehicle for enacting large-scale sentencing reform. Like other determinate sentencing reforms, sentencing guidelines constrain judicial sentencing discretion, but unlike other reforms, the creation of sentencing guidelines is typically delegated to a sentencing commission, or a specialized administrative body of judges, lawyers, politicians, and other legal specialists. Sentencing guidelines were first proposed by Judge Frankel (1973) as part of his eloquent diatribe against indeterminate sentencing in the 1970s. He argued that unlike the state legislature, an administrative commission of sentencing experts would be able to develop special competency regarding appropriate punishments while remaining isolated from short-term political pressures. He also argued that a standardized system of sentencing recommendations, or “guidelines,” were needed to provide uniform benchmarks for judges at sentencing in order to increase equality in punishment. Most sentencing guidelines today are set up as two-dimensional grids that include a measure of the seriousness of the current offense on one axis, and a measure of the prior criminal record of the offender on the other. Sentencing decisions are determined by the intersection of these two core sentencing criteria. More serious crimes and longer criminal histories result in more severe recommended punishments.
Although all sentencing guidelines are founded on similar core ideas, the way in which they have been implemented in different jurisdictions is extremely varied. Guideline systems differ in their complexity, in their sentencing ranges, in the amount of discretion they afford judges, in whether or not they retain discretionary parole release, in the types of crimes and sentencing options they cover as well as the philosophies of punishment they emphasize, and in the extent to which they deviate from past sentencing practices (Frase, 2005). Some guidelines, such as Minnesota’s, only govern prison sentences for felony offenses, whereas others, like Pennsylvania’s, cover a broad range of sentencing options, including jail, prison, and various intermediate sanctions, for both felony and misdemeanor offenses. A few states, like Delaware and Ohio, have created narrative rather than grid-based guidelines, and other states like Maryland have developed separate sentencing matrices for different crime categories. There has been some discussion of creating three-dimensional guidelines that incorporate other factors like offender culpability or amenability to treatment, but no state has yet taken this approach.
Although there are a number of subtle differences in the types of guidelines currently in use, guidelines systems can be broadly categorized on a continuum between “presumptive guidelines” and “voluntary guidelines.” Presumptive guidelines legally mandate judges to sentence within prescribed sentence ranges that are presumed to be appropriate unless there are unusual circumstances in the case. Judges can still sentence offenders outside of presumptive ranges, but these “departure” sentences require explicit justification, and they are subject to appellate review by a higher court. Voluntary guidelines, on the other hand, provide sentencing recommendations that are not legally binding. Judges are encouraged to consult the guidelines, but they are not required to follow them. Presumptive guidelines place a higher level of control over judicial sentencing discretion than voluntary guidelines. Similarly, different guidelines systems can also be categorized on a continuum between “descriptive guidelines” and “prescriptive guidelines.” Descriptive guidelines are based on past sentencing practices. They are meant to codify and define existing sentencing behaviors, whereas prescriptive guidelines “prescribe” new sentencing patterns that differ from past practices in substantively important ways. The first presumptive sentencing guidelines were implemented in Minnesota in 1980, followed by Pennsylvania in 1982, and today, about half the states either currently have or have experimented with some form of sentencing guidelines.
The bulk of the research evidence on the performance of sentencing guidelines indicates that they are effective in altering the preexisting punishment patterns of sentencing judges. There is also evidence that guidelines have helped reduce unwarranted sentencing disparities associated with offender characteristics like race, class, and gender, although they have not eliminated these differences altogether. Some scholars maintain that they have been successful in creating greater proportionality in punishment. In some states, sentencing commissions have also been able to utilize guideline systems to achieve systemic goals, like effective management of growing correctional populations. Many states now routinely conduct computer projections on prison populations in order to evaluate the influence of potential changes to their sentencing guidelines or to better gauge the impact of other punishment policies such as the implementation of proposed mandatory minimums. These projection estimates can provide useful information on future offender populations that can be utilized to alter sentencing practices in necessary ways. In some cases, resource management concerns have been the primary motivating factor behind the establishment of sentencing guidelines. Overall, then, commission-based regulation of sentencing guidelines has largely proven to be an effective mechanism for altering punishment patterns and implementing other policy initiatives such as correctional management goals.
For these reasons, state sentencing commissions and their guidelines have been a popular sentencing innovation. Although judges initially responded unfavorably to the curtailing of their sentencing discretion, many of them now openly embrace the idea of sentencing guidelines. In part, the relative success of guidelines stems from their broad appeal across multiple constituencies. Legal advocates, civil libertarians, and liberal scholars laud guidelines for encouraging greater consistency and uniformity in sentencing; crime control politicians, law enforcement agents, and conservative scholars support them for the certainty and severity of punishment they provide. Practitioners, including correctional officials, prosecutors, and even judges, often support sentencing guidelines because they reduce uncertainty in sentencing, increase predictability in corrections, and allow for improved resource management. Given the current breadth of their political support, the continued dissemination of state sentencing guidelines in the United States shows little sign of abating at this time, although this process is far from complete.
Not all sentencing guidelines have enjoyed unqualified success. Some states, like Wisconsin, have created sentencing commissions only to see them subsequently repealed, and other states have been unsuccessful in their attempts to promulgate guidelines altogether. The most controversial system of sentencing guidelines, though, is undoubtedly those created for the federal justice system. One prominent scholar has referred to them as the “most controversial and disliked sentencing reform initiative in U.S. history” (Tonry, 1996, p. 72). The federal guidelines have been repeatedly criticized for being overly rigid, harsh, and constraining, as well as too complex and mechanical in their application (Stith & Cabranes, 1998). Whereas most state guidelines systems have about 15 levels of offense severity, the federal guidelines have 43 levels. Moreover, their application involves the calculation of myriad offense-specific sentencing adjustments that complicate the calculation of guidelines sentences. For instance, in the federal system, offenders can receive a twoor three-level discount in the severity of their offense for “acceptance of responsibility,” which means that they show remorse or take responsibility for their criminal behavior. In practice, this discount is routinely provided as a reward for pleading guilty. Some critics also maintain that the federal guidelines are routinely circumvented by court actors in attempts to achieve more just sentencing outcomes. Although the architects of the federal guidelines attempted to create a sentencing system that would account for all relevant contingencies in sentencing, judges retain the power to sentence offenders outside of the recommended guideline ranges; however, they are only allowed to do so when there are extreme sentencing considerations not adequately accounted for by the commission. These are rare because the U.S. Sentencing Commission mandated that common mitigating factors like employment, mental health, and family consideration are “not ordinarily relevant” at sentencing. Unlike state systems, though, the federal guidelines also provide for departure sentences for “substantial assistance,” which means that an offender can receive a sentence below the guidelines recommendation for providing assistance in the prosecution of another federal criminal case. Research on federal departures shows that their use varies dramatically across federal districts and that the relative definition of what qualifies as “substantial assistance” is far from uniform (Johnson, Ulmer, & Kramer, 2008).
Since their inception in 1987, the federal sentencing guidelines have faced a number of important legal challenges. The guidelines were first criticized on grounds that they violated the “separation of powers” clause in the U.S. Constitution. The U.S. Sentencing Commission is lodged within the judicial branch of government, and critics maintained that because it was a bureaucratic administrative agency with the power to create laws, it was in fact performing legislative duties. In 1989, the Supreme Court ruled that the U.S. Sentencing Commission did not violate the separation of powers clause and that the federal guidelines were legally upheld (Mistretta v. United States). However, in a landmark case in 2005, the constitutionality of the federal guidelines was once again challenged, as described below.
One unique feature of the federal sentencing guidelines is that they are based on what is called “real-offense sentencing.” Rather than sentencing offenders based solely on the charges for which they are convicted, under the federal guidelines, offenders can be punished based on additional facts in the case. These elements can involve such things as magnitude of harm, motivation for the crime, and value of lost goods. The goal of real-offense sentencing is to limit the shift of sentencing discretion from the judge to the prosecutor, so that prosecutors could not determine the exact sentence by their choice of final charges of conviction. In particular, the federal guidelines provide for judicial consideration of “relevant conduct,” which means that the sentencing judge is required to factor any additional criminal behavior related to the offense into the final sentencing decision, including behaviors not formally charged or even those acquitted at trial. Importantly, the standard of evidence for determining relevant conduct of the offender is lower than it is for determining guilt at conviction. Offenders must be ruled guilty “beyond a reasonable doubt,” but a judge only needs a “preponderance of the evidence” (i.e., the judge only has to believe that the weight of the evidence supports the behavior) in order to apply relevant conduct enhancements at sentencing. In practice, what this means is that judges can enhance punishments for behaviors that are not subjected to the same standards of proof or the same constitutional right to have a jury decide the outcome. For these reasons, the Supreme Court in 2005 ruled 5 to 4 that the federal sentencing guidelines are in fact unconstitutional (United States v. Booker). At the same time, though, the Court determined that the guidelines could remain in effect, as long as they were converted to “advisory” guidelines rather than presumptive guidelines.
The full impact of this landmark decision on federal sentencing has yet to be realized, but preliminary evidence suggests that federal sentencing has not been dramatically altered, although judges have begun to sentence offenders outside the sentencing guidelines with increasing frequency (Hofer, 2007). The experience of the federal sentencing guidelines is unique, but it highlights some of the potential pitfalls in guidelines implementation. Although the future path of sentencing guidelines in the United States remains unclear, for the most part they have been popularly received in policy arenas and political circles. The extent to which sentencing guidelines and other recent innovations have successfully achieved the goals of increased uniformity and equality in punishment, though, remains the fervent topic of considerable scholarly research.
Research on Criminal Sentencing
The vast majority of social research on criminal sentencing revolves around issues of sentencing disparity, or differences in the criminal punishments given to different types of offenders. Of particular concern is unwarranted disparity, or sentencing differentials that result from consideration of factors other than those that are deemed legally relevant at sentencing. Whether or not sentencing disparity is warranted inherently involves a value judgment, but the majority of research in the area focuses on the influences of offender race, gender, class status, and mode of conviction in the sentencing process. It is important to note then that disparity does not necessarily equate with discrimination. Discrimination in sentencing involves sentencing disparities that arise out of the prejudicial use of unwarranted considerations in punishment.
Research on Sentencing Disparity
Since at least the 1930s, criminologists have been enamored with the study of racial and ethnic disparities in sentencing. A voluminous body of research has developed in this area, and although the collective findings remain somewhat equivocal, the weight of the evidence suggests that minority defendants are often disadvantaged at sentencing, at least for some decisions and in some contexts (Spohn, 2000; Zatz, 2000). Racial disparities appear to be greatest for black and Hispanic offenders who are young, male, and unemployed (Spohn & Holleran, 2000; Steffensmeier, Ulmer, & Kramer, 1998). Typically, these offenders are more likely to be sentenced to incarceration and less likely to receive sentences that deviate below the recommended ranges of sentencing guidelines. These disparities have been shown to be particularly pronounced for minorities convicted of drug offenses in the federal justice system (Steffensmeier & Demuth, 2000). They also characterize earlier decisions in the punishment process such as the determination of bail and pretrial release status (Demuth, 2003). Some evidence indicates that minority offenders are given higher bail amounts, which they are less able to pay, resulting in higher rates of detainment prior to trial. This fact is important because research shows that detainment is associated with greater severity in sentencing.
There is also evidence that the race of the victim influences sentencing, especially in combination with the race of the offender, and particularly for sexual assault and homicide cases. Several studies, for instance, demonstrate important racial disparities in the application of the death penalty, such that black offenders who target white victims are most likely to be sentenced to death (Baldus, Pulaski, & Woodworth, 1983). What this research suggests in sum, then, is that black and Hispanic offenders are often disadvantaged at sentencing, although racial disparity is not systemic. That is, it does not characterize every decision in every court, but rather isolated decisions for some minority offenders who commit particular offenses in certain contexts.
Although relatively less research examines the influence of gender, class, and mode of conviction on sentencing outcomes, conclusions regarding these factors are often less ambiguous. A number of studies investigate gender disparity in punishment and conclude that female offenders are treated with relative leniency at sentencing (Daly, 1995). While there are exceptions, most studies find that females are less likely to be incarcerated and that they are more likely to benefit from sentences that fall below the recommendations of sentencing guidelines. Some work also suggests that when incarcerated, they receive relatively shorter jail and prison terms compared to male offenders. Explanations for gender disparity in sentencing range from practical considerations of the differences in family roles, child rearing, and health care to arguments that male judges are likely to treat female offenders paternalistically or chivalrously. Relatively few studies actually investigate the intervening processes that account for leniency toward female offenders. Because male offenders are disproportionately involved in serious crime, judges may view them as more culpable or as greater risks for future offending.
Much less can be definitively concluded about social class in sentencing because offender socioeconomic status is typically unavailable or poorly measured (Zatz, 2000). This is an important limitation that characterizes the majority of research in this area. Some studies do find evidence that lower-class citizens are sentenced more harshly, but often these results are based on coarse proxies for socioeconomic status such as single indicators of education or employment status. It is also difficult to study these effects because offender samples often have limited variation on social class. Although sparse, this work suggests that class status is particularly likely to affect sentencing in conjunction with other factors such as the age, race, and gender of the offender. Future research is needed, however, before drawing more concrete conclusions regarding class disparities in sentencing.
Research on trial conviction is better developed and routinely finds that offenders who plead guilty receive more lenient sentences than those who exercise their right to trial. Trial conviction significantly increases the probability and length of incarceration, and it reduces the chances that an offender will receive a sentence that departs below the recommended punishment under sentencing guidelines. To some extent, though, this “trial penalty” is offset by the possibility of acquittal at trial. At least some offenders who go to trial are not convicted, so there is a tradeoff between the certainty of conviction that comes with pleading guilty and the reduced punishment that often accompanies it. For offenders who are convicted at trial, their sentences are routinely more severe than for similar offenders convicted through guilty pleas (LaFree, 1985).
Despite these generalizations, not all studies find significant offender disparities in sentencing. One explanation for this is that the subjective meaning and interpretation of offender characteristics may vary across different communities and courtroom social contexts. Although research in this area is still in its formative stages, preliminary evidence suggests that a number of sentencing considerations are conditioned by the larger social context of the sentencing court (Johnson 2005, 2006; Ulmer & Johnson, 2004). Factors such as the size and caseload of the court, the availability of local correctional resources, and the racial and ethnic composition of the community have been shown to influence individual sentencing decisions. Often, these context effects are subtle and indirect, influencing sentencing decisions in combination with specific offender and offense characteristics. Although on the surface, jurisdictional variations in sentencing suggest unwarranted sentencing disparity, it may be that regional variations in caseloads, public values and attitudes toward crime, or other locally determined considerations justify different punishment patterns across courts. Elected judges, for instance, may be sensitive to local punishment standards that are unique to their community environment. It is therefore possible that sentencing judges arrive at different punishments in different communities for valid reasons, although little research currently examines this type of explanation for interjurisdictional variations in sentencing.
The Future of Sentencing Research
Despite an abundance of studies examining unwarranted disparities in sentencing, a number of questions remain unanswered. Very little is known about racial and ethnic groups other than those that are most sizeable, such as Asians and Native Americans, and almost no research examines important differences within racial and ethnic groups. Hispanic ethnicity, for example, encompasses a multitude of nationalities, each with its own unique cultural heritage, but little is known about differences in sentencing among these different groups. Adequate measures of socioeconomic status remain elusive as well. In part, these and similar limitations reflect the overreliance of sentencing research on official data sources (Wellford, 2007). The majority of modern studies of criminal sentencing have been limited to a handful of states where sentencing commissions collect and disseminate public data. Because these data are often limited in the details they provide, future work is needed that collects more detailed information on the full range of factors that collectively shape sentencing decisions across court contexts. These include information on victim characteristics like offender–victim relationship, offense details like weapon use, and additional offender information like substance abuse and family background histories.
In addition, research is needed that integrates the influence of additional court actors in the sentencing process along with additional decision-making points in the justice system. For instance, very little empirical research focuses on the role of the prosecutor in sentencing, despite qualitative and anecdotal evidence indicating this person’s importance. The analogy is sometimes given that discretion in the criminal justice system is like a balloon—if you squeeze one part of the balloon, it expands in another area. However, despite widespread acknowledgment that modern sentencing reforms “squeeze” judicial sentencing discretion, very little research systematically examines its expansion among other court actors. Studies that do investigate this issue have found only mixed and limited support for it, but these types of investigations are all too rare (Miethe, 1987). To adequately assess the role that unwarranted disparity plays in the punishment process, it is necessary to begin to examine the cumulative effects of race, ethnicity, gender, and other factors from the time an offender is arrested until he or she is rereleased into the community.
A broader approach is also necessary in terms of the larger societal consequences of sentencing decisions. How, for instance, might disparities in sentencing contribute to inequities in other social institutions, such as schooling, housing, or employment? Research on sentencing inequality also demands a larger comparative perspective. The vast majority of research on the topic has been conducted in only a handful of U.S. states. This dramatically limits the ability to generalize research findings, and it also precludes adequate tests of the global applicability of broad theoretical perspectives on sentencing and sentencing disparity.
When examined in historical perspective, the evolution of modern sentencing is in many ways cyclical. Recent years have seen evidence that the “tough on crime” movement in America is beginning to subside, in part because sustained growth in American corrections along the lines of past decades is no longer feasible, and in part because of growing evidence in support of rehabilitative correctional programs. One indelible consequence of modern sentencing reforms has been an unprecedented increase in the incarcerated population in America. Over the past 40 years, American prison populations have quintupled, reaching new milestones, with more than 2 million offenders confined behind bars, and more than 1% of the total U.S. population incarcerated on any given day. Financially, socially, and morally, this rate of imprisonment cannot continue unabated. The pendulum of punishment is therefore showing signs of swinging away from the law-and-order crime control policies of the 1980s and 1990s, back toward more offender-based rehabilitative and restorative sentencing principles.
A number of jurisdictions have expanded their community punishment options and placed increasing emphasis on intermediate sanctions as alternatives to jail and prison. Although research evidence regarding their cost-effectiveness and crime-deterrent capabilities so far has been less than encouraging, intermediate punishments do provide for greater proportionality in punishment by offering a range of sanctions between probation and prison. A variety of restorative justice programs that emphasize the reparation of harm for the offender, victim, and society in sentencing have also emerged in recent years, as have specialized problem-solving courts that target the specific needs of particular offenders. For instance, specialized drug courts exist in all 50 states now, and although their details vary, they combine the efforts of justice and treatment professionals to provide more intensive treatment, management, and supervision for drug-addicted offenders. Similar specialized courts exist for teen offenders, mentally ill persons, and for family offenses among others.
As the 21st century continues, there will likely be an emerging public policy dilemma between well-established determinate sentencing structures that now exist in many states and the emerging social movement reemphasizing offender-based sentencing options, at least for some defendants and some crimes. If the progress of alternative and restorative sentencing options continues on its current path, the future will likely witness a growing disjuncture between existing determinate sentencing systems and increasingly individualized sentencing movements. It will therefore be the challenge of future generations to effectively balance the goals of equity and uniformity within structured sentencing frameworks with the emerging emphasis on individualized rehabilitative approaches to procedural and restorative justice in the United States. Successful integration of these alternatives will almost certainly require an expanded role for both social research and evidence-based sentencing policy to live up to the challenge of fair and effective sentencing in the 21st century.