John H. Kramer

Sentencing disparity and departures from guidelines

Unwarranted sentencing disparity, a long-standing concern for sociologists studying criminal sentencing, helped to stimulate reforms of sentencing such as sentencing guidelines. Guidelines, however, do not assure the elimination or even the reduction of sentencing disparity. Courts have the discretion to deviate from guideline recommendations, and these departures become a potential source of unwarranted disparity. Therefore we examine five years of recent sentencing data from Pennsylvania, focusing on the degree to which sentences that depart from the states guideline recommendations involve extralegal differences. We find that legally prescribed factors such as offense type/severity and criminal history are the primary predictors of departure decisions, but that departures from guidelines are also the locus of significant extralegal differences involving gender, race, and mode of conviction (guilty plea vs trial). We conclude by discussing the dilemmas these extralegal differences present for sentencin...

The Use and Transformation of Formal Decision-Making Criteria: Sentencing Guidelines, Organizational Contexts, and Case Processing Strategies

Recent sociological research in organizations has emphasized the “filtering” of externally-imposed formal policies and rules through local organizational cultures and strategic interaction processes. This type of generic organizational process assumes special importance for courts and sentencing, subjects of policy-oriented and social problems discourse for over three decades. Eisenstein and associates (1977, 1988; Flemming, Nardulli and Eisenstein 1992) point out that the contexts of local “court communities” and the formal and informal case processing norms of courtroom workgroups are at least as important as formal laws and state-level policies in determining “contours” of criminal justice. Our study focuses on the use and transformation of sentencing guidelines in the interorganizational relations and workgroup case processing strategies in local courts. We draw on the organizational concepts of “embeddedness” (Perrucci 1994) and “properties in use” (Peyrot 1995) of formal decision-making tools to frame our analysis. We present qualitative interview and field data on organizational contexts and case processing strategies from three different-sized county trial courts in Pennsylvania, a state whose courts have operated under sentencing guidelines for over a decade. Among the highlights of the analysis are our findings that DAs offices can use sentencing guidelines as management tools, judges can use them to legitimate their sentencing practices in political disputes, and both prosecutors and defense attorneys use them as important tools of uncertainty reduction in their guilty plea strategies. More generally, we argue that the implimentation of externally imposed formal rules and decision-making criteria depends on local relationships, activities, and informal decision-making criteria.

The 'Liberation' of Federal Judges' Discretion in the Wake of the Booker/Fanfan Decision: Is There Increased Disparity and Divergence Between Courts?

The US Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the US Supreme Court ruled in United States v. Booker and Fanfan, that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The impact of the Booker/Fanfan decisions on interjurisdictional variation and sentencing disparity is an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these expectations using USSC data on federal sentencing outcomes from four time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, post-Booker/Fanfan, and post-Gall v US. In general, we find that extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker and Gall. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.

Pennsylvania's Sentencing Reform: The Impact of Commission-Established Guidelines

Sentencing guidelines have attracted extensive attention as a rational approach to sentencing reform despite little evidence that guidelines act to reduce disparity or increase fairness. This article reports on a major assessment of Pennsylvanias commission-developed guidelines. The findings indicate that the Commissions guidelines have had a substantial impact on sentencing. The article focuses particularly on race, county size, and disparity measures in evaluating the impact of the guidelines. The findings support the conclusion that commission-based guidelines can effect meaningful sentencing reform.

Closing the Revolving Door? Substance Abuse Treatment as an Alternative to Traditional Sentencing for Drug-Dependent Offenders

The criminal justice system is often viewed as a revolving door for drug-dependent offenders due to its failure to recognize the association between addiction and offending, and repeated incarceration of drug-dependent offenders has contributed to prison overcrowding. The authors evaluated the effectiveness of Pennsylvanias drug and alcohol treatment-based intermediate punishment, Restrictive Intermediate Punishments (RIP/D&A), at reducing the risk of rearrest. Rearrest was compared at 12, 24, and 36 months postrelease. Offenders who successfully completed treatment had a lower risk of rearrest than traditionally sentenced offenders in general and county jail and probation offenders specifically. However, offenders sentenced to RIP/D&A who did not successfully complete treatment were more at risk for rearrest than traditionally sentenced offenders in general. Also, offenders sentenced to state incarceration had a lower risk of rearrest than RIP/D&A participants, regardless of program completion.

A Comparative Assessment of Determinate Sentencing in the Four Pioneer States

Debate over determinate sentencing grips the criminal justice system to day much as discussions about community correction did ten years ago. Advocates of determinate sentencing argue that sentencing disparity among similar offenders who have committed similar offenses will be re duced, that there should be greater certainty in terms of imprisonment, and that offenders will be treated with greater justice. Perhaps determinate sentencing as implemented will fulfill all these hopes, but the optimists among us must recognize that the momentum behind the determinate sen tencing movement can largely be attributed to a loss of faith in the re habilitative ideal; it is not necessarily a sign of the concepts obvious rea sonableness. In examining the nature of the determinate sentencing schemes in the four pioneer states, the authors compare and contrast the provisions for determinacy in each of the revised criminal codes, with the objective of informing legislators, planners, and practitioners about the variation possible within the apparently straightforward guidelines estab lished by determinacy. We note vast differences between the states in the constraints on judges regarding the decision about whether to incarcerate, in the delimitation of judicial discretion in sentencing, in the specificity of aggravating and mitigating factors, in the institutional use of good time, in the range of possible penalties, and in the degree to which determinate sentencing as practiced can look like indeterminate sentencing. It would appear that the speed with which sentencing revisions are being endorsed may well hinder reasoned analysis of the need for reform, the nature of desired reform, and the outcome of reform once implemented.

Sentencing guidelines: A quantitative comparison of sentencing policies in Minnesota, Pennsylvania, and Washington

During the past decade, several states established special commissions to develop sentencing guidelines. This article employs a simulation methodology to quantify and compare the sentencing recommendations in the first three states that promulgated guidelines. The article explores how the development of these guidelines was influenced by differences in the purposes of the sentencing reforms, in the sentencing philosophies adopted by the commissions, and in the statutory constraints placed on the commissions. Variations in these factors led to measurable differences in the degree of judicial discretion permitted by the guideline and in the overall severity of the guideline recommendations.

The Differential Impact of Criminal Stigmatization on Male and Female Felons

By way of survey-experimental methods, stigmatization responses of a college student sample and a community sample were examined to assess how sex of convicted felon and sex of subject affect levels of stigmatization. Major results were that (a) relatively high levels of stigmatization were expressed by subjects in both samples toward both male and female felons; (b) female felons, however, were the recipients of less stigmatization than male felons, with the difference being larger in the community than the student sample; and (c) sex of subject had little effect on the expression of stigmatization. It is suggested that the factors leading to less stigmatization of the female felon are nativeté concerning the female offender and greater fear of the male offender. Finally, attitudinal and background correlates of stigmatization are examined.

Defining determinacy: Components of the sentencing process ensuring equity and release certainty

Determinate sentencing has gained in popularity in recent years, yet the specific meaning of determinacy is not universally accepted. Determinacy is viewed as a means for providing prisoners with release certainty, a mechanism for increasing fairness in the sentencing process, or both. The purpose of this paper is to define the components of determinacy and to articulate the conditions of the sentencing and post-adjudication process necessary to fulfill these criteria. The discussion of fairness in sentencing is restricted to issues of procedural equity, or the degree to which sentencing decisions are made reliably. Release predictability involves providing inmates early in their prison stays with knowledge concerning their release dates. Sentencing equity and predictability depend on how the sentencing model is structured to deal with a series of discretionary decisions affecting criminal defendants throughout the judicial and correctional process. Six choice points are considered, three pertaining to th...

Rejoinder to Professor Ruback’s article: Warranted and Unwarranted Complexity in the U.S. Sentencing Guidelines

Professor Barry Ruback critiques the U.S. sentencing guidelines for their complexity, their lack of articulated purpose, and their unreliability. In a brief rejoinder to the complexity argument, this article points out that the complexity of previous sentencing practices helped drive the complexity of the guidelines the federal Sentencing Commission developed. Further, it notes that while the commission failed to articulate a philosophical purpose to the guidelines, the commission did develop guidelines that are a modified just desert model. Finally, the complexity of the guidelines does increase the risk of miscalculation and thus unreliability compared to simpler guidelines, but this discussion shows that a fairer benchmark is to past sentencing practices.