KIM WOODS Criminal Justice Multiple Choice

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Step 14

$30 or 30 Days: Setting the Penalty

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In the last chapter, we set the stage for sentencing by looking at judicial discretion and its limits, the different punishment philosophies held by individual judges, and the sanctioning options available to all judges. We now know that these factors play an important role in the eventual sentences imposed on offenders. This chap- ter takes up where we left off and discusses the art and process of sentencing itself.

By the end of this chapter, you will understand how judges fashion penalties for those who are convicted of crimes. You will know the role of the pre-sentence investigation report, and will recognize the influences of other factors on sen- tences. You will understand the mechanics of a sentencing hearing and how it resembles and differs from a trial. Finally, you will be able to discuss discrimina- tion in sentencing and some reforms that have been suggested to eradicate it.

SENTENCING IS A DIFFICULT TASK

Once a defendant has been convicted, the court must then turn its attention to estab- lishing an appropriate penalty. This process, known as sentencing, is generally believed to be a judge’s most difficult task (President’s Commission on Law Enforcement and the Administration of Justice, 1967, p. 141; Wice, 1985, p. 145). Indeed, consider for a moment that you are a judge who has been assigned the task of determining what to do with a young man who has shoplifted a CD player from a department store. It is his first conviction. Your goal is to tailor a sentence to the spe- cific offender before you, one that will show him that society disapproves of his actions and will deter both him and others from future crimes, but that considers any mitigating factors that may be present in his life. Will you send the thief to prison? Most state statutes say you can if the CD player is worth enough to be classified as a felony (e.g., whereas most state laws say that goods must be valued at $400 or more for grand theft, Virginia considers theft of property worth more than $200 to be a

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felony). Would you send him to jail for a shorter term of incarceration? Will you instead order him to work as a volunteer in a non-profit organization? What about probation? What are you going to do? These are the same questions that many judges ask themselves every day.

Despite the difficulty of sentencing, there is little preparation of judges for this task (Wice, 1985, p. 143), who must instead rely heavily on other judges to teach them the ropes of the robes or learn such items on their own (Alpert, 1981). Some judges depend on each case’s attorneys to help them decide suitable sen- tences, but attorneys are seldom impartial and often have their own interests at stake. Those judges who do receive training often feel that the typical two-day pro- gram is not enough. In the end, judges are seldom taught how to sentence, what factors are important, and what to consider when imposing sentences. One federal judge, Marvin Frankel (1973), greatly criticized this system:

They [judges] receive almost no instruction pertinent to sentencing. They may hear some fleeting references to the purposes of criminal penalties—some generalities about retribution, deterrence, etc. But so far as any intentional consequences of their legal education are concerned, they are taught by people and exposed to curricula barren of even food for thought about sentencing. (p. 13)

Despite the limitations on judges’ training for sentencing, it is still a necessary part of the court process. Few other court activities are as important to offenders as the sentences they receive. Society, too, has a vested interest in whether penalties pre- vent crime. The remainder of this chapter will examine how penalties are deter- mined, which factors are used in sentencing, whether discrimination exists in sentencing, and how sentencing laws have changed over recent years.

PRE-SENTENCE REPORTS AND THE PROCESS OF SENTENCING

In theory, sentencing is a well-planned, time-consuming task. The court sets a sen- tencing date, typically a month or two after conviction. During this time, a proba- tion officer spends as much time as necessary to prepare a thorough, useful pre-sentence report that incorporates the probation officer’s professional assess- ment of the offender (Klein, 1988). This report is distributed to the judge, prosecu- tor, defense attorney, and defendant, who carefully read the report before the sentencing hearing. At least, that is how the process is supposed to move along. In practice it tends to be a great deal more harried, with individuals paying as much attention as their busy schedules will allow.

Because there is a high rate of agreement between judicially imposed sen- tences and the recommendations made by probation officers, it is important to take a few minutes to discuss the issues surrounding pre-sentence reports.

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Pre-Sentence Investigation Reports: What Are They?

The Pre-Sentence Investigation report (PSI) contains a variety of information about the offender and his or her offense and also presents a professional opinion concerning an appropriate penalty. PSIs are not requested in every case; this is especially true for cases adjudicated in the lower courts (Alfini, 1981, p. 8). Some judges request PSI reports when they feel they do not have enough information to determine a just sentence (Blumberg, 1967, p. 137). In cases where judges know little about offenders and their offenses, the PSI may be the primary source of information on which the ultimate sentence is based. For this reason, they are par- ticularly useful in cases that are plea bargained.

Some probation departments have specialists who prepare PSIs, whereas oth- ers have a more vertical approach in which the probation officer who would actu- ally be assigned to supervise the probationer completes the investigation and writes up the PSI (Henningsen, 1981). Some jurisdictions even allow privately pre- pared pre-sentence reports (Immarigeon, 1985), which routinely offer to the court creative sentencing options, such as one team did when it recommended that a rabbi convicted of fraud either establish a high school program focusing on Jewish education or “take charge of a Committee on Holocaust Studies” (United States v. Bergman, 1976, p. 500).1 In addition to regular PSI reports, there is a shorter form called a selective PSI report that “contains only essential information” (Hen- ningsen, 1981, p. 35). Regardless of the type of form implemented in a given case, the PSI should always be as honest, objective, and thorough as possible.2

Pre-Sentence Reports: When Are They Completed?

Pre-sentence investigations are prepared after a defendant has been convicted or after she or he has agreed to plead guilty. This procedure is followed for four important reasons (Henningsen, 1981). First, the PSI report involves many sensi- tive questions of family, friends, and employers that may represent an unnecessary invasion of the defendant’s privacy if he or she is acquitted at trial. Second, it is the- oretically difficult for defendants to plead not guilty and then to cooperate and admit guilt to their probation officers. Third, a PSI report could not be admitted into court before sentencing anyway, because it could be prejudicial to the judge or jury. Finally, the report would be a needless use of scarce probation resources if the defendant is ultimately acquitted.

There are other times when it may be difficult to complete a thorough pre- sentence investigation. For example, even after conviction, some defendants will not admit their guilt to probation officers because they have appeals pending (Frankel, 1973, p. 27). It would not be in defendants’ best interests to provide probation offi- cers with detailed confessions while maintaining their innocence during their appeals. In order to demonstrate their appropriateness for lenient penalties, however, offenders must admit their culpability to their offenses and express feelings of

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Pre-Sentence Reports and the Process of Sentencing 431

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remorse. This happened when a New York judge said he would consider a plea bar- gain for three months in jail and five years of probation only if the defendant in a vehicular manslaughter case had no serious prior convictions and “he demonstrates sufficient contrition and indicates remorse when the probation department conducts the pre-sentence investigation” (Breakey, 2000).

Contents of the PSI

The PSI contains considerable information that judges may use when deciding sentences. First, a one-page summary of the offender’s demographic characteris- tics is presented. This page, sometimes called the “face sheet,” lists such informa- tion as the defendant’s age, marital status, attorney’s name, and sentencing date. The report then details the charges against the defendant and the penalties possible under statutory law. If probation is available, the report will note this.

The PSI also presents information regarding the defendant’s past arrests and convictions. This section of the report may be a few lines or may extend several pages, and serves to show whether the offense was a rare occurrence or evidence of an individual’s dedication to a life of crime.

A very important part of the PSI provides information on the instant offense (i.e., the offense for which the offender is currently being sentenced). First, the report presents the official version of the offense, generally gathered from police reports. This is followed by the defendant’s version of the offense, which can serve to show any mitigating circumstances or the offender’s acceptance of culpability. Statements from victims and/or police officers may be included in this part. Any mitigating or aggravating circumstances also will be detailed here.

The next major part of the report is a case history of the defendant. Generally, this information can help the judge view the defendant as an individual. Informa- tion about the defendant’s family history, education, employment, religion, mili- tary service, financial information, interests and activities, and physical and mental health status (including any possible addictions) is included in this section.

At the conclusion of the report, the probation officer makes a sentencing rec- ommendation on the basis of his or her professional assessment of the offender and the offense. Judges do not have to follow the recommendations, but the advice is generally weighted heavily (Ebbesen and Konečni, 1981; Henningsen, 1981). One reason that reliance on probation officers’ recommendations may be discretionary is that the quality of the PSI reports would have to be policed much more closely if they were mandatory (Jones, 1981, p. 549). There is evidence that the courts have already considered this possibility. If a death sentence is based even in part on information contained in a PSI, for example, the U.S. Supreme Court has ruled that the information must be disclosed to the defense so the defendant can “deny or explain” the contents (Gardner v. Florida, 1977).

Box 14.1 presents a portion of Erik Menendez’s PSI (Erik was the younger of two brothers who were convicted of murdering their parents in California). The

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Pre-Sentence Reports and the Process of Sentencing 433

BOX 14.1

Portions of Erik Menendez’s PSI report

Superior Court of California County of Los Angeles Probation Officer’s Report

Defendant’s name(s): Erik Galen Menendez Age: 25 Address (present): Los Angeles County Jail Birthdate: 11/27/70 Sex: M Race: W, White

[. . . many other descriptors here, including custody status and sentencing judge]

Charged with the crimes of (include priors, enhancements or special circumstances): I & II: 187 (a) PC (Murder)

Further alleged 190.2 (A) (15) PC (Committed while lying in wait) 190.2 (A) (3) PC (Committed multiple murders) III. 181 (1) PC (Conspiracy to commit murder)

Convicted of the crimes of (include priors, enhancements or special circumstances): Same

[. . . other information here, including dates of conviction and arrest, etc.]

Elements and relevant circumstances of the offenses: The defendants conspired together and murdered Jose Enrique Menendez (age 45) and Mary Louise “Kitty” (Andersen) Menendez (age 48), their parents at their Beverly Hills home. . . . On the night of August 20, 1989, the defendants loaded their guns with rounds of 4 buck each. At about 10:00 or 10:15 p.m., the defendants burst into the family den where the victims were sitting on the couch. All ten rounds were fired at the victims and all but one found their marks. . . . Because victim “Kitty” appeared to be still moving, the defendants then went to the co-defendant’s car where the defendant retrieved one or two shells of birdshot. He gave the shell to the co-defendant who returned to the scene of the crime and shot victim “Kitty” in the face at point blank range. After picking up the empty shells, they left to get rid of the guns and bloody clothing and attempted to establish an alibi by meeting with a friend. When they were unsuccessful in establishing contact with this person, they returned to the house and called the Beverly Hills Police Department at 11:47 p.m. to report the murders. After being questioned by the police, they returned to the house.

Personal history: Substance abuse: No record, indication, or admission of alcohol or controlled substance abuse. Type residence: Apartment Length of occupancy: 4 months Rent: $1,750 Residential stability last five years: Good Formal education: He graduated from Beverly Hills High school in June, 1989. Employment status: Unemployed Employment stability last 5 years: N/A Types of previous employment: None Recommendation: It is recommended that probation be denied and that the defendant be sentenced as prescribed by law.

Source: Adapted from Nidorf (1996).

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PSI contains all of the parts discussed above, including the probation officer’s rec- ommendation at the end. When you read the excerpted report, think about each of the elements and the role that it plays in the sentencing process. In the end, both brothers were sentenced to two consecutive life terms without parole.

THE SENTENCING HEARING

Sentencing Hearings Compared to Trials

In some respects, the sentencing hearing may be compared to a fact-finding trial. Sentencing agents, whether judges or juries, may hear from character witnesses (e.g., the defendant’s family and friends) or from victims (e.g., victim impact state- ments). These witnesses may testify at sentencing hearings; however, they do not testify about what they saw or heard. Instead, they tell the court about their feelings regarding the offender or his or her actions. In rare cases, defendants may call eye- witnesses whose testimony is “highly relevant” and who are likely to be truthful when they testify; for example, in one case the U.S. Supreme Court upheld the tes- timony of one eyewitness who testified that someone other than the convicted mur- derer had admitted to the killing (Green v. Georgia, 1979).

The defendant may also speak at the hearing, called exercising one’s right to allocution (Hill v. U.S., 1962), although judges nearly always impose whatever sentences they had tentatively assigned to the case before the sentencing hearing (Frankel, 1973, p. 36). Defendants can also try to demonstrate mitigating circum- stances (e.g., that there was no intention to distribute the drugs found in the defen- dant’s house at the time of his or her arrest), but the burden of proof at this stage is on the defendant (Walton v. Arizona, 1990). This is an importance difference: at trial, the burden of proof is on the prosecution. After conviction, the burden switches to the defense to prove any mitigating factors or to demonstrate that aggravating factors were incorrectly applied.

The defendant is not the only person the judge or jury may hear from during a sentencing hearing. In most states, the victim, or victim’s family, may also speak at the sentencing hearing. Input from the victim or family members is typically included in the pre-sentence investigation, but most states also allow victims to make a victim impact statement (VIS) in court. Every state allows some form of VIS, ranging from written statements read in court to oral statements to more cre- ative options, such as picture or video collages set to music. Ruled acceptable by the U.S. Supreme Court in Payne v. Tennessee (1991), VISs allow the justice sys- tem to pause and focus on the victim and to acknowledge the impact of the crime on his or her life. VISs are not without controversy, however, as some scholars question whether they will inappropriately introduce emotionalism into the sen- tencing process. VISs are discussed in greater detail in Step 8.

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There are other important differences between trials and sentencing hearings. First, the purpose of the sentencing hearing is to establish the proper penalty rather than determine guilt, and its focus is to maximize the amount of information avail- able to the sentencing agent. This means that information does not have to pass the strong criteria used for admission as evidence in a trial.

Unlike one’s right to trial by jury, defendants have no right to be sentenced by juries; indeed, judges may overrule the sentences imposed by juries in states whose state legislatures have enacted laws permitting this (McMillan v. Pennsylvania, 1986) even in capital cases (Spaziano v. Florida, 1984). Such overrides are not common, but they do happen. In Joseph Spaziano’s case (mentioned above), the jury voted for life imprisonment, but the judge overruled their recommendation and instead imposed the death penalty.3 The Spaziano case, of course, involved a very rare sentence change. When judges overrule jury sentences, it is usually in the direction of leniency; for example, imposing a life sentence despite a jury’s recom- mendation that a defendant receive the death penalty.

Likewise, in most states, defendants have no right to cross-examine witnesses who testify at their sentencing hearings because this may impede the testimony of intimidated witnesses (Williams v. New York, 1949). The convicted offender has the right to be present during their testimony, but cannot cross-examine the witnesses.

A fourth difference between trials and sentencing hearings is the level of proof required. Because guilt was established beyond a reasonable doubt for the defendant’s conviction at trial, evidence presented at the sentencing hearing need only meet the civil standard of preponderance of evidence (McMillan v. Pennsylva- nia, 1986). It is also important to point out that the exclusionary rule does not apply to sentencing hearings. This means that evidence that was excluded at trial may be presented at the sentencing hearing. In other words, that 35 kilos of cocaine that was excluded from your trial after the judge ruled it was illegally seized because the police did not have probable cause to search your vehicle’s trunk could very well end up on the evidence table at your sentencing hearing.

Judicial Enhancement of Sentences

Judges may enhance sentences under many circumstances, according to the U.S. Supreme Court. First, judges who believe that defendants committed perjury, regardless of whether this is true, may enhance the sentences (United States v. Grayson, 1978). Defendants who refuse to cooperate with authorities (e.g., refusing to name one’s drug suppliers) may find themselves facing more serious penalties than their counterparts who shared this information (Roberts v. United States, 1980). The reasoning behind these two enhancements is that telling the truth in court and cooperating with the authorities are ways to show that one has repented and has begun the journey toward rehabilitation. Lying and refusing to participate in the further detection or punishment of crime, on the other hand, are proof that one is

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not ready for lenience. How do judges know when they are being lied to? They often rely on their past experiences with other defendants and cases, but there is still an element of guesswork to it and that disturbs some judges. One judge, when asked what he would request if there were a Santa Claus of courts, told one of the authors he would ask for a truth dial because it would make his job much easier (see Box 14.2 for his quote and quotes from two other judges on the topic of lying).

It is not surprising that prior convictions can be used to enhance sentences, but most individuals do not know that prior crimes can be held against defendants even if they were never convicted (Williams v. New York, 1949). In the District of Columbia, defendants’ sentences can be increased even if they were acquitted of prior charges (United States v. Boney, 1992)! These apparent contradictions are allowed because the level of proof used at sentencing hearings is lower than that required to establish criminal guilt at trial. One judge sentenced an Arizona man convicted of a nonfatal drive-by shooting to twelve years in prison in part because of his own belief that the young man’s previous acquittal was an error on the part of the jury (see Box 14.3 for more details).

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436 $30 or 30 Days: Setting the Penalty

BOX 14.2

Three Lower Court Judges’ Comments on Lying in Court

As you read the following excerpts from interviews with lower court judges, think about how these judges view lying and the problems it poses for them. How is perceived perjury tied to sat- isfaction with career and how could it affect verdicts or sentences?

A criminal court judge: [If there were a Santa Claus of courts, I would ask for] a truth dial. I’d just like to have a little thing that, if you were talking, I could point it at you and if you’re telling the truth it’s blue and if you’re not, it’s red. And then I’d just know. That would make my job a lot easier. If you could sit here and know who’s telling the truth and who isn’t, your job would be a whole lot easier.

Another criminal court judge: I tell people I am lied to every day of my life. One thing I have to do, when I leave, is to leave my job behind me.

A judge who presides over civil court trials: There are some situations where judges lose their objectivity and I guess towing companies are one of my weak spots because I’ve seen so [much] crummy lying. And, you sit back and say, “Maybe this guy will be different.” [But,] on the first three or four sentences out of his mouth, you know he’s going to make up some wild scenario how that person’s wheel fell off two miles down the road after he came out and changed the tire or how this car that had no dents in it, all of a sudden, down at the tow yard, its fender is bashed in or valuable property that was in the trunk somehow mysteriously disappeared.

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FACTORS IN SENTENCING

In theory, sentences are based on a combination of legal factors, including the seri- ousness of offenses for which the defendant has been convicted. Long ago, Cesare Beccaria (1775/1983) noted that sentence severity was not always based solely on the legal merits of criminal cases. Instead, sentences appeared somewhat capri- cious; elites received leniency while commoners faced severe sanctions.

Interest in sentencing did not die with Beccaria. Current researchers are still trying to understand how sentencing takes place. Many have searched for bias in sentencing and a number have found evidence that it exists. Other researchers have joined in the fray and argue that sentences are based on the legal merits of the cases, rather than any supposed biases. In general, factors that influence sentencing can be divided into three categories: legal, extra-legal, and organizational. The next three sections examine these factors in greater detail.

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Factors in Sentencing 437

BOX 14.3

Previous Acquittal Used to Enhance Sentence

To many observers, the defendant wore “a smirk and an attitude of bored indifference” during his many court hearings on assault and battery charges stemming from a drive-by shooting. Even if there was no smirk, there was no doubt that the judge was less than thrilled with the young man’s attitude in court and toward life in general. The judge demonstrated his disap- proval of Gonzales’ crimes when he sentenced him to the maximum term possible under Ari- zona state law, twelve years in state prison without a chance of parole. Gonzales probably expected a more lenient sentence, since he had no criminal record—or did he?

Before the sentence was imposed, Gonzales’ attorney informed the court that his pre-sen- tence investigation report, completed by the local probation office, said that he “has no record, a previous vehicle arson case having been dismissed by a hung jury.”

The judge, on the other hand, was not so quick to dismiss culpability in the vehicle arson case. “I believe you burned that car. . . . The jury decided otherwise, that’s their prerogative; but, I believe you burned it. . . . I suspect that you didn’t learn a damned thing . . . I think you think you got away with something.”

The judge then said, “I choose to aggravate the term,” meaning finding reason to impose the maximum sentence allowed. Arizona law allows judges to consider prior cases when impos- ing sentences, even cases that do not result in convictions.

Source: Adapted from H. Kitching (1995), Bite the bullet, judge tells drive-by triggerman. Nogales Inter- national.

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LEGAL FACTORS IN SENTENCING

Legal variables, such as prior record and offense severity, are “those which the sys- tem may legitimately use to fix sentences” (Lizotte, 1978, p. 567). As citizens, we expect these variables to affect sentences. Most individuals would agree that those convicted of rape or robbery should be punished more harshly than shoplifters because the crimes are more serious and cause more harm. Similarly, few people would argue if those being sentenced for their fifth burglary received harsher sen- tences than first-time burglars. Such disparities (i.e., differences in sentences) would not necessarily reflect discrimination (i.e., difference in sentences that are attributed to prejudice). Legal variables, then, are legitimate influences on sentence severity.

There has been a great deal of research on the effects of legal variables on sentences. Scholars have consistently found that those convicted of more serious charges tend to receive harsher sentences (e.g.; Chiricos and Bales, 1991; Lizotte, 1978; Myers, 1987; Myers and Talarico, 1988; Petersilia and Turner, 1985; Spohn, 1990; Uhlman, 1977, 1979). This makes intuitive sense. Those who cause more harm to their victims or to society in general should be penalized more than those who cause less harm. See Box 14.4 for a breakdown of sentences by offense, which shows the influence of this factor.

The presence of mitigating or aggravating circumstances in the offense has also been associated with sentence severity. For example, offenders who use guns while committing their crimes typically receive harsher sentences than other offenders (Feeley, 1979, p. 212; Spohn, 1990), sometimes because they face mandatory penal- ties or enhancements (i.e., laws that authorize harsher sentences when certain crite- ria are met, such as use of a firearm during a crime or victimizing a vulnerable victim). Criminals whose cases involve mitigating factors (e.g., reduced mental com- petence, minor role in the offense, youthful offender), on the other hand, often receive lesser penalties.

In some cases, the age of the offender is a legal variable in sentencing. Juve- niles, for example, cannot receive the death penalty in most states. Unless they are tried as adults, juveniles cannot be incarcerated beyond expiration of juvenile juris- diction. To illustrate, California cannot imprison even serious offenders tried in the juvenile court system (e.g., murderers) beyond the age of twenty-five; other juve- nile offenders must be released by age twenty-one. Other states mandate release at earlier ages; regulations regarding housing juveniles with adults require that Arkansas juveniles must be released by age eighteen. Because youths convicted in the juvenile courts must be released when they become adults (or shortly there- after), some juveniles charged with serious crimes are certified to the adult courts. Had Lionel Tate, a twelve-year-old boy who argued that he was imitating profes- sional wrestlers when he beat a six-year-old girl to death in Florida, been tried in the state’s juvenile courts, he could only be held until age twenty-one. By transfer- ring him to adult court, he faced, and received, a mandatory sentence of life in

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prison without parole (Canedy, 2001).4 See Step 16 for more information on certi- fication and the treatment of youths in the juvenile courts.

Prior records have also been linked with harsher sentences (e.g., Gordon and Glaser, 1991; Mileski, 1971; Spohn, 1990; Zatz, 1984). Those who have been con- victed of prior criminal acts usually receive harsher sentences than first-time

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Legal Factors in Sentencing 439

BOX 14.4

Felony Sentences Imposed by State Courts

As you look over the following table, it is clear that offense severity has at least some impact on sentences. Which offenses are least likely to receive probation? Most likely to receive probation? What can you say about the effect of offense severity on sentences, after studying this chart?

Types of Felony Sentences Imposed by State Courts: by Offense, 1996

Percent of felons sentenced to—

Most Serious Incarceration

Conviction Offense Total Total Prison Jail Probation

All offenses 100% 69% 38% 31% 31% Violent offenses 100% 79% 57% 22% 21%

Murdera 100 95 92 3 5 Sexual assaultb 100 79 63 16 21 Robbery 100 87 73 14 13 Aggravated assault 100 72 42 30 28 Other violentc 100 73 38 34 27

Property offenses 100% 62% 34% 28% 38% Burglary 100 71 45 26 29 Larcenyd 100 63 31 32 37 Fraude 100 50 26 24 50

Drug offenses 100% 72% 35% 37% 28% Possession 100 70 29 41 30 Trafficking 100 73 39 33 27

Weapons offenses 100% 67% 40% 27% 33% Other offensesf 100% 63% 31% 32% 37%

Note: For persons receiving a combination of sentences, the sentence designation came from the most severe penalty imposed—prison being the most severe, followed by jail, then probation. Prison includes death sentences. Data on sentence type were available for 997,906 cases. a Includes nonnegligent manslaughter. b Includes rape. c Includes offenses such as negligent manslaughter and kidnaping. d Includes motor vehicle theft. e Includes forgery and embezzlement. f Composed of nonviolent offenses such as receiving stolen property and vandalism. Source: Brown, Langan, and Levin (1999), p. 2.

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offenders. With respect to “three strikes and you’re out” policies, the number and type of priors may be the most important factor in sentencing. When sentencing guidelines are followed, one’s prior record also has a significant effect on one’s final sentence.

Similarly, those facing more charges tend to receive harsher sentences (e.g., Klein et al., 1991). One scholar even found that the number of charges a defendant faced was a better predictor of sentence severity than prior record (Green, 1961). Again, this is rather intuitive. Logic dictates that a burglar who is sentenced for burglarizing two homes should receive a more severe sentence than a similar bur- glar who burglarized only one home.

Another legal factor in sentencing is the recommendation made by a proba- tion officer in the pre-sentence investigation. The recommendation itself is a legal factor, but some research has shown that the advice given to judges by probation officers may be the result of bias. One research team (Reese, Curtis, and Whit- worth, 1988), for example, found that probation officers’ attitudes affected whether they recommended commitment for a juvenile offender. Other scholars (e.g., Hagan, 1975, p. 635; see also Ebbesen and Konečni, 1981) note that offender characteristics such as race and socioeconomic status may affect probation offi- cers more than judges and hence “introduce a channel of extra-legal influence” (Hagan, 1975, p. 635) into sentencing. Other scholars note that probation officers’ recommendations may be based in part on the desire to legitimize their own role in the criminal justice system; to illustrate, some probation officers recommend pro- bation so that their offices’ budgets can be increased (Moran and Cooper, 1983). These possible biases by probation officers become very important when one notes that the concordance rate between judges’ sentences and probation officers’ recommendations is very high, often exceeding 80 percent (e.g., Ebbesen and Konečni, 1981; Hagan, 1975).

The final legal factor we will consider is whether a plea bargain was reached in the case. As mentioned in Step 11, judges are not necessarily bound to the sen- tence agreed to in a plea bargain, but judges rarely deviate from the recommenda- tions that arise out of bargaining sessions. Because of this, the terms of the plea bargain may be strongly associated with, and may be the only determining factor in, the final sentence. Of course, the terms of plea bargains are usually related to the nature of the charges and other legal factors, so the final sentence should not be that much of a surprise. Because plea bargains involve discretion, however, it is also possible that the extra-legal and organizational factors discussed below have some impact on the final recommendations. Later in this chapter, we will discuss plea bargaining as an organizational factor because the practice was designed to serve the courts’ needs to dispose of cases. It is included as a legal factor because some bargains dictate sentences and the U.S. Supreme Court has recognized the value of bargaining in American justice. See Box 14.5 for some legal factors con- sidered by lower court judges when deciding and imposing sentences.

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EXTRA-LEGAL VARIABLES IN SENTENCING

Extra-legal factors are those which have legally impermissible influences on legal decisions such as charging, verdicts, and sentencing. The influence of extra-legal variables on sentencing suggests discrimination. Influences that result from these factors undermine our general concept of fairness and justice. When race is felt to determine which defendants receive the death penalty, for example, the public may feel that our criminal justice system is unfair. This may reduce the likelihood that

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BOX 14.5

Some Legal Factors Considered by Lower Court Judges When Sentencing

When you read the following excerpts from interviews with lower court judges, think about what the judges value and how they view their role in the courts. Do you agree with their reasoning?

Prior record and harm: I have enough experience to know what cases are worth, and so, this is kind of like a marketplace, and cases have certain values of their own. And based on independent things within the case, the value goes up or down, based on prior records, or based on aggravating circumstances like use of weapons or causing great risks.

Prior record: A first-timer, [you want to] sentence them appropriately. You don’t sentence them with thirty days in jail and give the heavy-weight guy with the bad record five days in jail. What message does that send out? There’s a mixed message; it’s useless. You better reverse it. Five days for the first-timer, thirty days for the second-timer.

Mitigating/aggravating circumstances: Now, there are things, when we sentence felonies, for example, there are low-term, mid-term, and high-term. I like to say we start at the mid-term. Say it’s 2, 3 or 4 years. [I] start at 3 years, and if there are mitigating circumstances, I move down, and if there are worse circumstances, I might move up.

Nature/seriousness of the crime: [The factors I consider] depend on the situation. If you have a first-time offender on a petty theft or some such thing like that you don’t usually get too excited about it. [If] you start having people who are using guns and holding up people or something that is of a more violent nature, you are most concerned.

Role of plea bargaining: Most of the sentencing that I do is worked out by way of plea bargains with DAs. So, all of the sentencing that you saw me do [when you observed me] was based on a contract basically with the DA. It’s rare that I have a lot of discretion in sentencing.

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people will comply with the law (Tyler, 1990), or increase the likelihood that people will “martyrize” criminals (Kennedy, 1997, p. 27).

Extra-Legal Defendant and Offense-Related Variables in Sentencing

Race/ethnicity is by far the most controversial extra-legal factor in sentencing. One of the first empirical studies in this area was conducted by Thorsten Sellin (1928) who compared conviction and sentencing rates for black and white defendants in Chicago during the 1920s. His finding that blacks received heavier penalties than whites has been replicated by many other researchers. Some researchers, however, have quickly denounced the idea that racism plays a role in sentencing and instead point out that the offenses committed by minorities are often more serious than those committed by whites (e.g., Green, 1964; Kleck, 1981, 1985). We now know that racial discrimination affects at least some judges under at least some circum- stances, but findings of systemwide bias are far less common than the media would lead one to believe. In some respects, media focus is actually distorted in two opposite directions. Media accounts tend to overplay any potential suggestion of race having been a factor in a case, but underplay the real issues of discrimination against minorities, the poor, and other groups. Because of its profound impact on justice and perceptions of justice, we will examine discrimination in greater detail later in this chapter.

Generally, research shows that women are treated less harshly than men by the courts. Some scholars believe this results from paternalism or a desire to pre- serve maternal bonds. This phenomenon may be especially salient when defen- dants’ children are in the courtroom at the time of sentencing. As women move into the crime areas previously dominated by men (e.g., violent crimes and fraud), these differences are beginning to disappear. For now, however, women still tend to get lighter penalties overall (Bureau of Justice Statistics, 1994; Daly, 1994; Meeker, Jesilow, & Aranda, et al., 1992). Some scholars argue that it is not women, per se, who are treated leniently, but caregivers in families, who just happen to be female more often than male. These researchers have found that male primary caregivers are also treated leniently, meaning that “familied” defendants of either gender are usually punished lighter than defendants without family responsibilities (e.g., Daly and Tonry, 1997; Simpson, 1989).

Almost ironically, socio-economic status is one of the major influences on sentences. Harsher sentences are often imposed on the poor, sometimes because society fears that such offenders are particularly despicable or dangerous (Chamb- liss and Seidman, 1971, p. 475; Lizotte, 1978). This seems offensive in a nation that claims fairness for all and once proclaimed, “Send us your poor, your huddled masses yearning to be free.” Some scholars argue that “crime” in the United States is a label for deviant acts committed by the poor, while the harms perpetrated by

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elites (e.g., white-collar crimes) go relatively unnoticed (e.g., Reiman, 1995). Because they are so unlike the middle- and upper-class judges who sentence them, and hence less likely to be empathized with, the poor are likely to get harsh treat- ment in the courts when it comes to sentencing. This is particularly true when defendants are detained before trial because they could not make bail.

One of the most predictable, yet unfair effects on sentencing may be the dress and appearance of the accused. It is for this reason that many defendants, even in minor traffic cases, wear their Sunday best to court. Likewise, defendants who appear polite and remorseful in court sometimes meet with leniency in the courts. Researchers like Alan Lizotte (1978) recognize the importance of dress and de- meanor and how these traits may be tied to socio-economic status:

In the courtroom, poorer defendants might not present the image of respectability evidenced by dress, demeanor, and social standing which a wealthy person could. Judges might convict more often; assign higher bail amounts; refuse to grant bail; and assign tougher sentences to blacks or persons in lower occupations. (p. 565)

Ties to the community can help offenders in several ways. First, those who have social standing in the community can expect at least some favorable media cover- age, even if the community is outraged.5 Then, those with family ties are some- times labeled as better risks for probation. Finally, they are more likely to be released before trial, and therefore are better able to assist in their own defenses.

Although possibly the most important factor in criminality, an offender’s motivation for committing a crime is technically an extra-legal factor. The law con- siders intent (i.e., what one plans to do) rather than motivation (i.e., the goal behind one’s planned actions). To illustrate this difference, consider the husband who euthanizes his invalid wife at her request after years of pain and suffering. Despite his motivation to end his wife’s suffering, his intent was still to end her life. The husband could be convicted of murder for this act, regardless of whether it was motivated by compassion. When it comes time to impose sentence, however, motivation is elevated to a legal factor. In sentencing, we expect that the compas- sionate husband’s act of murder be treated as less serious than a brutal murder of a healthy wife to collect on life insurance, not because the victims differ, but because the depravity involved in the crimes differs. Likewise, those who steal to feed their hungry children generally receive lighter penalties than drug addicts who steal to feed their drug habits.

Many offender-related, extra-legal influences are less consistent. Some judges, for example, prefer to “hammer” young offenders with harsh sentences to “set them straight” whereas others feel that young offenders deserve leniency. Some judges are more likely to release on probation certain types of offenders such as students and high-profile individuals, but others harshly sentence these offend- ers, who should “know better” (see Box 14.6 for some extra-legal factors consid- ered by lower court judges when deciding and imposing sentences).

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BOX 14.6

Some Extra-Legal Factors Considered by Lower Court Judges When Sentencing

When you read the following excerpts from interviews with lower court judges, think about circumstances when their rationales could be viewed as discrimination, or the beginnings of discrimination. Can you imagine at least one set of circumstances under which you would agree with the judges’ reasoning?

Race/ethnicity: I think the [domestic] abuse is maybe increasing a little bit. We have [a] tremen- dously high proportion of Hispanic residents in this jurisdiction, and I think a lot of the Hispanic legacy is to treat women less as humans and more as property.

Race/ethnicity: I do see Hispanic names. I tell you, though, one thing that really upsets me are illegals. I don’t mind illegals coming across the border. I don’t mind people com- ing from other countries to work. My parents did it, yours did, and so on. But what really upsets me is when they come to this country to violate the law. Not in order to, necessarily, but they violate it. And I mean they are cutting and shooting and drunk driving and getting chased by the cops and crashing into people. So I had a meeting with the immigration people to say we have to do something about this. And the immigration people said just taking them back does not do anything. But if they are convicted of a felony and two serious misdemeanors . . . then if they come back, then they can go to the federal penitentiary and do 90 percent of their sentence in 8–10 years. So, what I am saying is that we do not want those criminals.

Age: Is this the tenth time he’s been caught breaking in and taking someone’s stereo out of their car or is it his first? And if it’s the tenth time for a thirty-year-old and it’s the tenth time for an eighteen-year-old, you’ve got a real dilemma because that person’s still young. I’m probably never going to reach the thirty-year-old, but if I really cru- cify the eighteen-year-old, maybe it will stop him. I can give the thirty-year-old a year in jail and he’ll be out with his slim-jim and screwdriver the day he gets out. So I can slam him real hard and it probably won’t do any good, whereas if I slam the eighteen-year-old, who really is probably less culpable because he hasn’t had as much time to mature, I may get his attention and he may go straight.

Attitude: But also it is [influenced by] attitude. Is the defendant’s attitude more of being sorry or is it belligerent? A lot of body language that I see in the defendant [is important].

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Extra-Legal Community Variables in Sentencing

Extra-legal community factors may also play a role. Jail or prison overcrowding may lead some judges to consider alternative sentences (Meyer and Jesilow, 1993). The presence of the media or people in the audience may influence sentencing, especially in notorious cases. The general community attitudes toward crime and criminals affect sentencing, especially for elected judges in rural areas (Kunkle, 1989). Finally, the presence of racial unrest or economic inequality in a community may mean that sentences are harsher than in less diverse areas (Myers, 1987).

Extra-Legal Judicial Variables in Sentencing

Some important, yet often overlooked, sources of extra-legal influence are the char- acteristics of the sentencing judges themselves.6 Research has shown, for example, that female offenders receive harsher sentences from female judges than from male judges (Gruhl, Spohn, and Welch, 1981; Myers and Talarico, 1988). Minority judges seem to be more impartial with respect to offender race; that is, offender race is less important in sentences imposed by minority judges, whereas white judges seem to impose more lenient terms on white offenders (Holmes et al., 1993; Welch, Coombs, and Gruhl, 1988). Former prosecutors have been found to impose harsher sentences than other judges (Myers and Talarico, 1988) and retribution-oriented judges are often harsher than judges who follow other punishment philosophies (Hogarth, 1971). Some judges dislike and hand out harsh sentences to drunk driv- ers, child molesters, or other specific categories of offenders. Judicial age, religion, and form of selection (i.e., elected versus appointed) may also have significant effects on sentences. It is meaningful to realize that judicial characteristics may be as important, if not more important than characteristics of offenders.

ORGANIZATIONAL FACTORS IN SENTENCING

A third category of sentencing factors are organizational; these are tied to the courtroom itself. In general, they revolve around the strength of the “courtroom work group,” composed of the judge, prosecutor, and defense attorney (for more

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Organizational Factors in Sentencing 445

Dress: Times are so hard and things are so expensive, that you get people coming in here on parking tickets dressed in tie and jacket, . . . you know, dressed very nicely to save five bucks on a parking ticket. . . . And you get a lot of people coming in here who aren’t John Dillinger, coming in on a first-time moving violation, those people deserve to be treated like the good people that they are.

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information on courtroom work groups, see Part II [Steps 5–8] of this textbook). The better connected these three courtroom players are, the more likely they are to work as one unit to dispose of cases in an efficient manner, sometimes at the expense of individual defendants (Eisenstein and Jacob, 1977; Nardulli, 1978).

One important organizational factor is the type of plea. It is well known that those who force the state to prove their guilt receive harsher penalties than those who plead guilty (e.g., Albonetti, 1991; Bullock, 1961; Nardulli, 1978). In keeping with the idea of trials as uncalled-for obstacles to justice, attorneys sometimes refer to the harsher sentences imposed on those who are convicted after trial as “rent charged for use of the courtroom.” Hence, plea bargaining, whether explicit or implicit, can have a significant impact on final sentence.

Following Abraham Blumberg’s (1967) discussion of defense attorneys as “double agents” whose primary duty is to appease the court by persuading their clients to plead guilty and save the state the cost of a trial, scholars began to focus their attention on how the members of the courtroom work group interact with dif- ferent types of defense counsel. Most researchers agree that public defenders, due at least in part to their high caseloads, are less able than private attorneys to secure acquittals or lenient sentences (e.g., Lizotte, 1978). On the other hand, some research has found that public defenders are better able to secure favorable sen- tencing outcomes for offenders, presumably because they are able to develop close ties to other courtroom regulars (Pruitt and Wilson, 1984; Wice, 1985, p. 65).

Research has shown that another way to incur the wrath of the courtroom work group is to claim an “unfair” slice of their time in court. Basically, defendants who “take some of the court’s time” have some of theirs taken in the form of longer sentences. This has been found true for both the felony (Eisenstein and Jacob, 1977; Nardulli, 1978) and lower courts (Meyer and Jesilow, 1997; Mileski, 1971). Peter Nardulli (1978, p. 216), for example, found that for each defense-initiated legal motion, robbers’ sentences increased; those who made one motion were typi- cally incarcerated for 25 months, whereas those who initiated more motions were sent to prison for at least 64 months. At the lower court level, one research team (Meyer and Jesilow, 1997) found that offenders whose misdemeanor arraignment hearings lasted just four or more minutes were significantly more likely than those with shorter hearings to be jailed! Of course, some argue that a possibility exists that sentence outcome “causes” trial length because longer trials are necessary for the complex cases that often involve long sentences; but it is also possible that defendants are not receiving their right to due process. See Box 14.7 for some dis- cussions about organizational factors from judges and court administrators.

DISCRIMINATION

As discussed above, discrimination reduces the public’s trust and faith in the courts. The question is not whether discrimination exists, but the identity of its

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Discrimination 447

BOX 14.7

Some Comments on Organizational Factors from Lower Court Judges and Court Administrators

As you read the following quotes, consider the value placed by the courtroom work group on efficiency and saving time.

A judge talking about the lack of attorneys in lower courts and judges having to ensure that bar- gains are not used too often by prosecutors looking to get rid of cases quickly:

I think our job is to make sure that . . . no one is taking advantage of anyone. The DA is in there talking with pro pers all the time, criminal defendants without lawyers, and if we fall asleep at the switch, some people may get some pleas that they shouldn’t be pleading to. Punishment that’s too high. The DAs are honorable, ethical people, so our job is simple. We check every claim, take every plea, so we’re sort of a check-and-balancing system. So, if they’re taking advantage of people, or it seems like that, we stop it. “Pardon me, why are you doing this on this person? Why is the fine twice what you normally offer?” And if they tell us why, and there’s a good reason for it, fine. If not, I just tear it up. . . . If the offer is low, based on this person before me, then I’ll tear it up and say, “No, start over. Either raise up your offer or we’ll get them a lawyer and then go to trial, because this person needs more punishment than you’re giving them.”

A judge discussing types of bargains in his court which might be attractive to defendants: Your first-time petty theft, for example, is usually in plea bargain situations reduced to a trespass . . . so the petty isn’t on their record even though the police report indi- cates it’s a clear petty theft. A driving on a suspended license, if the person gets a license, might be reduced to driving without a license . . . the first time or so, but . . . the second, third or fourth time isn’t going to be treated like that, and that is just a matter of common sense.

A court administrator discussing calendaring to improve court efficiency: Some courts segment their calendars by all public court cases, and private attorney cases are on different calendars so that it is more efficient. . . . Many calendars are designed for lawyer efficiency to try the cases out in the shortest period of time.

A judge lamenting about individuals who “waste” the court’s valuable time: I do not think that it does people any good to just keep going through the front door and not accept responsibility for what got them there. If they can do that by a trip to the front door and pleading guilty, paying the fine, and that modifies their behavior, I’m happier than anybody. But if they continue . . . the behavior that got them there in the first place, then I want to know how much time I’m supposed to . . . waste with them before we take what we’re going to do here seriously? This thing costs a lot of money to [operate], courts and all of this stuff.

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sources and the nature and extent of its impact. Early studies (pre-1970s) on dis- crimination showed that minorities, in particular blacks, received harsher penalties than whites. Among these studies were some that included control factors, such as offense severity and prior record (e.g., Bullock, 1961; Lemert and Rosberg, 1948), but without computers to calculate statistics, they relied on bivariate comparisons (meaning they could only control for one factor at a time).

More recent studies (i.e., those after 1970) used more sophisticated research methods, and also found evidence of racial bias in sentencing, but not to the degree reported in earlier studies. One of the most noteworthy studies of the 1970s was a study done by Alan Lizotte. Lizotte (1978) used complex statistical models to exam- ine sentencing outcomes and found that race did not affect sentences directly, but instead operated through minorities’ reduced ability to post bail. Another notable study during the 1970s (Uhlman, 1977, 1979) found that blacks received harsher sentences for three reasons: Their crimes were more serious (i.e., their criminality differed), they were poor (i.e., that class status mattered), and they were black (i.e., racism happened). In the 1980s, some researchers focused on the effects of sentenc- ing guidelines that were implemented during the 1970s (e.g., Petersilia and Turner, 1984, found that even racially neutral criteria were “racially tainted,” meaning that some of the criteria were associated with race), whether the biases found for blacks extended to other minority groups such as Mexican Americans (e.g., Zatz, 1984, found that Mexican Americans were treated differently from blacks and whites), and whether ecological variables were important in sentencing (e.g., Myers and Talarico, 1988, found that blacks received harsher sentences in communities in which there was a large gap between the lowest and highest incomes but that blacks were treated more fairly in communities with a larger black population).

Current research suggests that discrimination in the criminal justice system is contexual rather than systematic (Walker, Spohn, and DeLone, 2000). That is, evi- dence suggests that discrimination occurs in the justice system, but that its occur- rence, nature, and frequency depends on the context. For example, some police departments are more likely to engage in racial profiling than others, some judges are more likely to be biased in sentencing than others, and so on. Because discrim- ination is contextual, it may be harder to detect using standard research methods. Sometimes the bias is against minorities, such as when blacks get longer prison terms. Some researchers have found that bias works in favor of white offenders, such as when the criminality of whites was “graded downward by probation offi- cers and judges” in one study so that they received probation or short jail sentences while non-white offenders were sent to prison (Lemert and Rosberg, 1948). The end result of both forms of bias, of course, is the same: Minorities get harsher sen- tences than whites.

The research on discrimination has become somewhat of a methodological battleground (Meyer and Jesilow, 1997). Instead of discussing the significance of each other’s findings, researchers seem to prefer arguing about each other’s

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“flawed” methods. Now, researchers use complex formulas that require substantial knowledge about statistics to understand. However, it is also important to be aware of methodological issues and the strengths and limitations of criminal justice sys- tem data. For example, data showing differences in offending by race/ethnicity may or may not reflect actual differences in offending. Why? Because the practices and policies of actors, such as police and prosecutors, can lead to differential arrest and charging policies based on race. Based on available research, we know that some judges are racist. These judges, while relatively rare, sentence minorities harshly simply because they are not white.

Sentencing discrimination may also be reflected in equally important but more subtle ways. For example, research on murder cases shows that the race of the victim is an even more significant influence than the race of the defendant on sentencing (as discussed in Step 13, this argument was raised by McCleskey in his 1987 appeal following his capital sentence for killing a white). Research from several studies of sentencing in capital cases found that when the victim is white, the defendant is more likely to be charged with and convicted of a capital crime, and to receive the death penalty (Baldus, Pulaski, and Woodworth, 1983; Radelet,

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Discrimination 449

This 1941 photograph of inmates from the Greene County prison camp in Georgia attending their warden’s funeral illustrates the biases that African Americans of that time faced. Research has shown that African Americans are sometimes more likely than similarly situated whites to be convicted and to be sentenced to incarceration, which might explain the lack of white inmates in this picture. Out- right discrimination in sentencing is far less common now because of social changes in how African Americans are viewed following the Civil Rights movement, as well as guarantees of counsel to indi- gent defendants and other forms of justice system oversight. Instead, discrimination, where it is found, is more contextual and subtle. SOURCE: Library of Congress, Prints and Photographs Divi- sion, FSA-OWI Collection, LC–USF33–020874–M1 DLC, Jack Delano, photographer.

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1989; Walker, Spone, and DeLone, 2000). This also illustrates contextual discrimi- nation because it suggests that “. . . crimes involving African-American victims are not taken very seriously. . . . [and] the lives of African-American victims are deval- ued relative to the lives of white victims. Thus, crimes against whites are punished more severely than crimes against African-Americans regardless of the offender’s race” (Walker, Spone and DeLone, 2000, p. 245).

Bias is probably most likely in two types of situations. First are those circum- stances that occur far from public scrutiny, such as plea bargaining sessions that usually take place in private. Second are those situations where sufficient discre- tion exists to permit discrimination to take place. Judges must have enough leeway to hand out discriminatory sentences. James Meeker and colleagues (Meeker, Jesilow, and Aranda, 1992), for example, argued that bias is most likely to occur in non-legal decisions. He and his research team found that Hispanics and males were more likely to be sent to less desirable sites to complete their community service sentences (e.g., picking up trash along roads versus working in libraries or other non-profit organizations), and suggested that the placement bias was due to the ability of the judges to exercise their discretion for that decision. In contrast, the defendants’ sentence lengths (i.e., the number of hours of service ordered), which were established by law, were not handed out in a discriminatory fashion.

The role of race in justice has become a controversial issue for Americans, but seems to be one they do not really want to seriously tackle, preferring instead to rely on personal opinions and national rhetoric. As aptly summarized by one news colum- nist, “When a black person breaks the law, it’s a comment on race. When a white per- son commits a crime, it’s a comment on society” (Gonsalves, 1998, p. L5). It seems hard for most Americans to seriously question a justice system that repeatedly nets minorities because they are not faced with the continual specter of discrimination themselves. As discussed in Step 8, minorities tend to be arrested more often for street crimes and serious drug offenses. Because such offenses are punished harshly, minorities often find themselves facing strict sentences. Even when compared to whites accused of similar offenses, poor minorities may be less able to post bail to achieve pre-trial release or less able to hire competent counsel, thus increasing their chances of conviction. And, in some cases, outright discrimination is, unfortunately, a factor. As discussed earlier and in Step 8, discrimination can occur at one or more of many points. We still have far to go in our understanding of how race affects the entire process of justice, from law-writing to law-breaking and beyond.

SENTENCING REFORMS TO DEAL WITH DISCRIMINATION

Discrimination is by no means new to criminal justice. As noted earlier, Cesare Beccaria noted with disdain in the eighteenth century that sentences were some- times based more upon characteristics of offenders than upon their crimes. Unfor-

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tunately, Beccaria’s laments described more than just his nation’s justice system. American justice in earlier centuries often legislated harsher treatment for African Americans. Some early American laws were actually designed to treat black offenders harsher than their white counterparts. For example, rapists in Georgia during 1861 were sentenced differently according to their race and the race of their victims; state laws at that time dictated that blacks who raped “free white” females “shall be” sentenced to death, whereas non-blacks who raped free white females faced sentences of two to twenty years in prison and those who raped black women were to be punished “by fine and imprisonment, at the discretion of the court” (McCleskey v. Kemp, 1987, pp. 329–330). Similarly, an 1848 Virginia statute required the death penalty for any offense committed by a black that could result in three or more years in prison for a white (Jones, 1981, p. 543). These two examples show that our system of justice has not always protected all Americans equally. Even the U.S. Supreme Court acknowledged how tolerable social inferiority for blacks was to nineteenth century white Americans when it ruled in Plessy v. Fergu- son (1896) that courts could not be expected to guarantee equality to blacks: “If one race be inferior to the other socially, the Constitution of the United States can- not put them upon the same plane.”7 Complaints about the existence of discrimina- tion did not vanish with the eradication of such racist laws as those discussed above, but the situation has improved immensely in this country.

Until a few decades ago, there were relatively few limits on sentencing. Most offenders were sentenced under indeterminate sentencing. Under this arrange- ment, judges decide whether or not offenders will be sent to prison. Later, a parole board determines when each offender will be released. The parole board meets with offenders and determines which are rehabilitated, and therefore “ready” to be released. Rehabilitation, however, lost its political support and people began to notice that discrimination lurked under the euphemistic guise of reforming offend- ers. It was harder for minorities to convince all-white parole boards they were ready for release, meaning they were held for longer terms.

In response to the realization that sentence length often depended on an offender’s skin color or socioeconomic status, legislators began designing a strat- egy to deal with the problem. Several legislative attempts to restrain discretion were developed. The first was the move from indeterminate sentencing to determi- nate sentencing. This system replaced vague, open sentences with terms set by statutes. Instead of meaningless sentences of “one year to life,” offenders could expect to know the number of years they would serve for their crimes. It was also hoped that such policies would limit judicial discretion and drive judges to impose similar sentences on defendants convicted of similar offenses.

Some states, such as California, chose to rewrite their penal codes to say that retribution was the new state policy, and that sentences were intended to punish, rather than reform, offenders. Merely eliminating rehabilitation from state penolog- ical purposes, however, did not delete it from individual judges’ priorities. Some

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judges continued to follow the old directive that viewed offenders as reformable. It did not take long for people to perceive that judges (and, to some extent, parole boards) were letting offenders off with “slaps on the wrist.” Angry, the public demanded accountability from its judges and sought ways to limit their discretion. They demanded more restrictions on judges’ sentencing options. Such a move, they reasoned, would prevent judges from coddling dangerous offenders.

Sentencing Guidelines and Mandatory Sentences

One such restrictive sentencing reform is the implementation of sentencing guide- lines. Sentencing in the federal and many state felony courts is directed by these rules that dictate sentences based on legal factors present in a case. The type of offense, harm to victim, amount of damage, and the offender’s prior record, for example, contribute to a narrowly defined sentence. Using the federal guidelines, a robber who held up someone for less than $10,000 without (1) using a firearm, (2) any resulting injuries, or (3) any prior convictions could expect a sentence of thirty- three to forty-one months (United States Sentencing Commission, 1998, pp. 72–73). Theoretically, extra-legal factors such as race and gender are not allowed to influence sentences because they are excluded from the complex formulas that determine offenders’ ultimate fates.8 Most critically, the use of race and/or gender as factors raises equal protection and due process issues. See Box 14.8 for the 1998 Sentencing Guidelines sentencing table.

Under sentencing guidelines, judges may depart upward (i.e., impose a harsher sentence than that provided by the guidelines) or depart downward (i.e., impose a milder penalty than called for by the guidelines). Judges utilizing either option, how- ever, must provide the court with their reasoning. For this reason, departures are sel- dom made. At the federal level, most departures are made for cooperating with authorities and providing information about criminal associates (Wray, 1993).

The most restrictive sentencing reform is the adoption of mandatory penalties. Mandatory sentences force judges to impose certain penalties, usually by dictating the minimum sentence a judge may consider. Most mandatory minimums apply to violent crimes (e.g., California’s mandatory minimum of twenty-five years in prison for rapists who injure their victims), habitual offenders (e.g., “three strikes and you’re out” laws), drug offenses (e.g., many states’ mandatory prison terms for drug users and dealers), or firearm use (e.g., “use a gun, go to jail” laws). A new trend is the imposition of mandatory penalties on drunk drivers. All fifty states have some form of mandatory sentences in place and they are a regular feature in federal statutes (Parent et al., 1997). Although mandatory sentences have been around for many years (e.g., see Box 14.9 for a number of early “three strikes”–style American legal codes), the “get tough on crime” movement has boosted their popularity (e.g., Whitman, 1998, pp. 71, 72). In fact, “three strikes”–style sentencing schemes were approved by the U.S. Supreme Court in 1980 in Rummel v. Estelle. See Box 14.10 for a brief synopsis of this important case.

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BOX 14.8

The 1998 Federal Sentencing Guidelines

This table shows sentences, in months, under federal guidelines. To determine an offender’s sentence, one need only find the intersection of the Offense Level (i.e., offense severity) and Criminal History Category (i.e., prior record). Each offense has a base value to which points are added if other factors made the crime more serious, for example if the offender used a weapon or inflicted injuries on others (United States Sentencing Commission, 1998). These values are explained in explicit detail in the Guidelines manual, which is nearly 600 pages long.

Criminal History Category (Criminal History Points)

Offense I II III IV V VI Level (0 or 1) (2 or 3) (4, 5, 6) (7, 8, 9) (10, 11, 12) (13 or more)

1 0–6 0–6 0–6 0–6 0–6 0–6 2 0–6 0–6 0–6 0–6 0–6 1–7 3 0–6 0–6 0–6 0–6 2–8 3–9 4 0–6 0–6 0–6 2–8 4–10 6–12 5 0–6 0–6 1–7 4–10 6–12 9–15 6 0–6 1–7 2–8 6–12 9–15 12–18 7 0–6 2–8 4–10 8–14 12–18 15–21 8 0–6 4–10 6–12 10–16 15–21 18–24 9 4–10 6–12 8–14 12–18 18–24 21–27

10 6–12 8–14 10–16 15–21 21–27 24–30 11 8–14 10–16 12–18 18–24 24–30 27–33 12 10–16 12–18 15–21 21–27 27–33 30–37 13 12–18 15–21 18–24 24–30 30–37 33–41 14 15–21 18–24 21–27 27–33 33–41 37–46 15 18–24 21–27 24–30 30–37 37–46 41–51 16 21–27 24–30 27–33 33–41 41–51 46–57 17 24–30 27–33 30–37 37–46 46–57 51–63 18 27–33 30–37 33–41 41–51 51–63 57–71 19 30–37 33–41 37–46 46–57 57–71 63–78 20 33–41 37–46 41–51 51–63 63–78 70–87 21 37–46 41–51 46–57 57–71 70–87 77–96 22 41–51 46–57 51–63 63–78 77–96 84–105 23 46–57 51–63 57–71 70–87 84–105 92–115 24 51–63 57–71 63–78 77–96 92–115 100–125 25 57–71 63–78 70–87 84–105 100–125 110–137 26 63–78 70–87 78–97 92–115 110–137 120–150 27 70–87 78–97 87–108 100–125 120–150 130–162 28 78–97 87–108 97–121 110–137 130–162 140–175 29 87–108 97–121 108–135 121–151 140–175 151–188 30 97–121 108–135 121–151 135–168 151–188 168–210

(continued)

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Of course, the legislature must not go too far in imposing mandatory penal- ties. The resulting sentences must bear some proportionality to the harm caused or appellate courts may strike them down as unfair on review. Consider the 1983 U.S. Supreme Court case, Solem v. Helm. Although the charges Helm faced resembled those three years earlier in Rummel v. Estelle, the High Court said a mandatory life sentence without parole was disproportionate to his crimes and voided the sentence (1983, pp. 303–302):

The Constitution requires us to examine Helm’s sentence to determine if it is proportionate to his crime. Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct. He has been treated more harshly than other criminals in the State who have committed more serious crimes. He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State [Nevada, which also authorized life sentences without parole, but had not yet imposed that sentence]. We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment.

In general, judges and courtroom work groups dislike mandatory sentences because they preclude individualization of sentences. They feel some defendants (e.g., elderly or borderline mentally ill defendants) should not be sent to prison. They also agree that the sentences mandated by the law are sometimes unfair.

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454 $30 or 30 Days: Setting the Penalty

BOX 14.8 (continued)

Criminal History Category (Criminal History Points) (continued)

Offense I II III IV V VI Level (0 or 1) (2 or 3) (4, 5, 6) (7, 8, 9) (10, 11, 12) (13 or more)

31 108–135 121–151 135–168 151–188 168–210 188–235 32 121–151 135–168 151–188 168–210 188–235 210–262 33 135–168 151–188 168–210 188–235 210–262 235–293 34 151–188 168–210 188–235 210–262 235–293 262–327 35 168–210 188–235 210–262 235–293 262–327 292–365 36 188–235 210–262 235–293 262–327 292–365 324–405 37 210–262 235–293 262–327 292–365 324–405 360–life 38 235–293 262–327 292–365 324–405 360–life 360–life 39 262–327 292–365 324–405 360–life 360–life 360–life 40 292–365 324–405 360–life 360–life 360–life 360–life 41 324–405 360–life 360–life 360–life 360–life 360–life 42 360–life 360–life 360–life 360–life 360–life 360–life 43 life life life life life life

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Judges in one California county, for example, complained bitterly that they were forced to jail drug addicts for being under the influence of drugs, although this penalty did nothing to help offenders deal with their addictions (Meyer and Jesilow, 1997). Mandatory minimums also disrupt the courtroom work group’s routine use

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BOX 14.9

A Sample of Early American “Three Strikes” Laws

As the following laws show, the magical number “three” was established long ago as the cutoff point for determining when an offender’s life of crime could be terminated. After one’s third offense, one was executed to protect the community. This does not mean that all repeat offender laws seized upon the number three; some repeat offender laws require only two prior offenses to trigger enhanced sanctions (“A thug in prison cannot shoot your sister,” 1995, p. 257).

1611 Under a 1611 military law in Virginia, the failure to attend religious services was a crime. One’s first offense meant losing a week’s rations. The second offense netted a whipping in addition to the loss of a week’s rations. Those who dared to commit a third offense were put to death (Johnson, 1988, p. 99).

1648 Massachusetts laws in 1648 established another early “three strikes” law for burglary and robbery. One’s first conviction resulted in branding the letter “B” on the offender’s forehead (remember, sophisticated tracking technology was not around in the 1600s, so the only way the justice system knew it was dealing with a recidivist was the presence of special maiming or brands on the forehead, hands, or other parts of the body; the pres- ence of the letter “B” on an offender’s forehead alerted the courts that the offender had been previously convicted of burglary). A second conviction netted a “severe” whipping in addition to the placement of a second brand on the forehead. The third offense was proof of one’s being “incorrigible” and resulted in the offender being put to death. Com- mitting these crimes on the Lord’s day resulted in additional penalties, namely the cut- ting off of one ear on the first offense and the remaining ear on the second offense (Farrand, 1648/1929).

1748 A 1748 Virginia law for hog theft made it clear that swine were protected livestock. One’s first offense netted a fine and twenty-five lashes. A second offense was punished by a fine and a two-hour stint in the pillory with one’s ears nailed to the device (offend- ers, by the way, were freed from the pillory by slicing off their ears). The third offense, proof of incorrigibility, was punished with the death penalty (Friedman, 1993, p. 42).

Even some Native American tribes relied on the magic number “three.” Traditional Mohawk law punished a third offense of lying with banishment, which was essentially a death sentence (Ross, 1996, p. 162). Early Cherokee law punished rapists with fifty lashes and the removal of the left ear. Repeat rapists received one hundred lashes and had their right ears cut off. Three-time losers were put to death (Young, 1969, p. 23).

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of plea bargaining and increase the number of trials demanded by defendants facing mandatory penalties.

Some courtroom work groups find ways to remove the shackles of mandatory and guideline-based sentencing. As shown in Box 14.11, state-level judges some- times use creative interpretations or purposeful misreadings of sentencing statutes to

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BOX 14.10

A Summary of Rummel v. Estelle (1980), an Important Case in Validating “Three Strikes” Laws

William Rummel had already pled guilty to credit-card fraud in the amount of $80 and passing a forged check for $28.36 when he was charged with theft of $120.75 (Rummel v. Estelle, 1980). For this third offense, the prosecutor charged him under Texas’ habitual offender law which read: “[Whoever] shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary” (Rummel v. Estelle, 1980). After his conviction and sentence to life in prison, Rummel filed a writ of habeas corpus in United States District Court claiming that his sentence was grossly disproportionate to his crimes. The District Court rejected his claim, but he then asked for reconsideration by a panel of judges which ultimately sided with him. A third hearing by the whole court en banc vacated that deci- sion, once again rejecting his claim. The fourth step was a request for the U.S. Supreme Court to hear the case, and that court ruled the sentence was not cruel and unusual punishment or “grossly disproportionate” as noted below:

The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses seri- ous enough to be punished as felonies, to segregate that person from the rest of soci- ety for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sen- tenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.

We therefore hold that the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. The judgment of the Court of Appeals is Affirmed. (Rummel v. Estelle, 1980, p. 284–285)

Postscript: Three years later, the U.S. Supreme Court did side with another property offender who had received a life term for writing a bad check (Solem v. Helm, 1983). Their reasoning was that Rummel had been eligible for parole, while Helm was not. This fact made Helm’s sentence disproportionate.

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avoid their intended effects, convert mandatory fines or jail terms into community service hours, or recommend that the probation department allow alternative place- ments such as residential treatment programs for jail terms (Meyer and Jesilow, 1993). At the federal level, prosecutors have been known to “divide the load” between codefendants in order to reduce possible sentences (e.g., nine ounces of cocaine in the possession of three codefendants would be equal to three ounces each), agree not to seek enhancements, or seek conviction on a less serious charge (Wray, 1993).

Some judges report that they appreciate mandatory and guideline-based sen- tences. These judges tend to feel that such sentences are acceptable when they are for important causes, such as reducing the incidence of drunk driving. Other judges appreciate that they do not have to determine appropriate penalties in potentially dif- ficult cases. Others feel that the decreases in their discretion are worth the reduced discrimination that accompanies mandatory and guideline-based sentences.

Some states operate under presumptive sentencing. Under this scenario, an appointed sentencing commission made up of criminal justice personnel and pri- vate citizens sets up varying sentences for individual offenses, similar in some ways to the federal sentencing guidelines discussed earlier. The guidelines are mandatory, though judges may depart from them if they provide their reasons for doing so. If someone is injured in a robbery, for example, the judge may impose a harsher term than is normally imposed for robbery; if the offender played a minor role in the offense, on the other hand, the judge may consider a lesser term.

The intent of efforts to curb discretion are to reduce discrimination and to prevent soft-hearted judges from releasing hard-core offenders onto the streets. Whether or not mandatory penalties and other structured sentencing strategies achieve those goals in a fair manner is a matter of debate. Some legal scholars argue that the past two decades of “get tough” policies in America reflected the fact that although serious crimes were already punished severely, media and govern- ment distortions of the extent of the crime problem and the nature of sentencing practices led to public misperceptions that the criminal justice system was “soft on criminals.” In response, legislatures passed mandatory sentencing statutes (Donziger, 1996; Walker, Spone, and DeLone, 2000).

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BOX 14.11

A Lower Court Judge in California on the Creative Interpretation of Mandatory Statutes by Judges

There is an interplay between the legislature and the courts. If the statute is ambigu- ous at all, the judges will try to use that to avoid the mandatory language when they feel it’s appropriate. When the legislature hears that they’ll go back and revise the language to try to make it more mandatory. So it’s an interplay between the two branches on that. (Meyer and Jesilow, 1993)

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458 $30 or 30 Days: Setting the Penalty

BOX 14.12

Some Student Observations on Sentencing

The following observations, made by two of the author’s students, illustrate some important issues in sentencing. As you read them, think about how the observations illustrate the art of sentencing.

Input from the prosecutor is important when determining sentence (Stacy Walter, 1999): Throughout the cases heard this evening I watched how everyone interacted. I noticed that Judge T relied on the prosecutor K for several of the sentencing options. Judge T took into great consideration prosecutor K’s opinion.

Sentences may depend on the courtroom work group (Constance O’Connor, 1993): I was often invited to sit in the judge’s chambers and allowed to observe the “behind the scenes” negotiations. Without this direct observation, I would not have been fully aware of the role good-natured cooperation plays in the dispensation of jus- tice. At one point, when the judge decided to give a young defendant a break and sentence him to a rehabilitation center instead of the county jail, the public defender remarked “You must be getting soft, judge.” The judge laughingly replied, “No, I just like you today and want you to be happy.” The friendly banter between mem- bers of this particular courtroom work group seemed to be the rule rather than the exception.

Efficiency is highly valued and may affect sentences (Constance O’Connor, 1993): In the judge’s chambers, one public defender remarked, “Let’s get them out of here today. I’ve got things to do.” This type of flippant attitude towards his clients may suggest that this particular public defender is not truly interested in “doing justice” (to borrow a term from Eisenstein and Jacob, 1977), but rather in getting the cases in and out as quickly as possible. This study may also suggest that the public defenders cooperate with the district attorneys to the detriment of the defendants in order to “speed things up.”

The courtroom work group cannot “do justice” without cooperation from all members (Constance O’Connor, 1993):

One work group member shared a story with me about a young, highly ambitious district attorney who only lasted a short time at this courtroom. This district attor- ney insisted on “playing strictly by the book” and refused to participate in the coop- eration and negotiation that had become the hallmark of this work group. After several weeks, the courtroom was hopelessly bogged down and the number of cases moving through the system had slowed to a trickle. The judge went to the uncooper- ative district attorney’s boss and had him transferred out and replaced by a more compliant DA. Life returned to normal in the courtroom. Clearly, this demonstrates that in this particular courtroom, cooperation is not only desirable but is required if one wishes to maintain a position within the work group.

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Sentencing Reforms to Deal with Discrimination 459

SUMMARY

In this chapter, we examined how sentencing happens, that is, which factors affect sentences and how the hearings progress. We learned that most judges find sen- tencing to be a difficult task, and that is no surprise given the multiplicity of items that play a role in sentencing outcomes. We also discovered that most judges are unable to keep extra-legal and organizational factors out of their sentences, no mat- ter how well-intentioned they are. Finally, we explored discrimination in sentenc- ing, its causes, and some reforms that have been developed to reduce its incidence. In the end, even after a number of reforms, sentencing is still a difficult task. See Box 14.12 for some student observations regarding sentencing.

“We’re appealing!” How many times have you heard that yelled from the top of the courthouse stairs? The next chapter will present information on what appeals are and when they are allowed. It will also clarify the types of rulings available fol- lowing an appeal. For many defendants, the process ends with this chapter, but for those defendants who are successful in getting their appeals heard, we have one more step. . . .

D I S C U S S I O N Q U E S T I O N S

1. How could the contents of a PSI be biased or incorrect? Could such biases/inaccuracies be attrib- uted to individuals other than the probation officer who made the report? Provide some examples to explain your answer.

2. What, in your opinion, is the best time to complete the PSI? Why do you feel that way?

3. What are some key ways sentencing hearings are similar to trials? Key ways in which the two processes differ?

4. Do you feel it is fair for judges to be able to increase sentences based on prior cases that did not result in convictions?

5. Read the interview excerpts in Box 14.2, considering how these judges view lying and the prob- lems it poses for them. How is perceived perjury tied to satisfaction with career and how could it affect verdicts or sentences?

6. Read the interview excerpts in Box 14.5, considering what the judges value and how they view their role in the courts. Do you agree with their reasoning?

7. Read the interview excerpts in Box 14.6, considering circumstances when their rationales could be viewed as discrimination, or the beginnings of discrimination. Can you imagine at least one set of circumstances under which you would agree with the judges’ reasoning?

8. Read the quotes in Box 14.7. How could efficiency and saving time affect justice?

9. Read your local newspaper to get a small sample of criminal sentences. What are some examples of disparities you noted that probably do not indicate discrimination? Do you see any disparities that might be rooted in discrimination? What criteria did you use to classify the sentences into the two categories?

10. Look over the factors that the judge, either attorney, or other individuals (e.g., commentators or family and friends of the defendant or victim) said were important in the sentences. Classify them into the three categories of factors: legal, extra-legal, organizational. Do you notice any

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patterns between the factors that judges and prosecutors claim are used versus those mentioned by other individuals?

11. What are some ways that perceptions of discrimination affects faith in the justice system? How could a lack of faith among the public cause problems for the courts?

12. Why haven’t the many sentencing reforms eliminated perceptions of discrimination in sentenc- ing? Have the reforms been beneficial in any ways?

13. List five reasons that you support “three strikes” laws and five reasons you think they should be changed. Overall, what is your opinion about “three strikes” laws?

N O T E S

1. The recommended sentence was not imposed, as the sentencing judge (Judge Marvin Frankel, who was cited in the previous section) wanted to order something more punitive.

2. Some probation officers use the acronym H.O.T. to help them remember that PSIs should be hon- est, objective, and thorough.

3. Ironically, twenty-one years after his conviction the lead witness recanted his testimony, earning Spaziano a new trial (Another delay in battery trial, 1997).

4. At the time of this writing, Tate’s case was under appeal and the governor of Florida had been requested to grant clemency in the case by vacating the sentence or imposing a shorter term of three years in prison that was offered in a plea bargain.

5. Of course, those with high social standing can also expect negative press coverage if their behav- ior shocks their community. News of the downfall of politicians, clergy, youth group leaders, school teachers, principals, and other individuals who are “in the limelight” or whose positions involve public trust who have been accused of even minor crimes can sometimes set off a negative publicity frenzy. When Karen Howard, wife of the public relations director for the Philadelphia Eagles, killed a man in a 1998 hit-and-run accident, public outcry was unbelievably negative, with members of the public saying they were glad that her wealth was unable to buy her out of jail time, and with some going so far as to say they hoped she was sexually assaulted while incarcerated and were glad that she would be unable to see her young son for a year. In fact, it is possible that Howard was charged and received the relatively harsh sentence because of her prominence in the community and the outcry against her.

6. As mentioned earlier in this chapter, probation officers’ personalities and characteristics may affect their recommendations, and therefore, sentencing itself.

7. This decision was a civil judgment concerning “separate, but equal” policies and did not specifi- cally address sentencing differences. It does, however, illustrate the institutionalized inequity of the time.

8. Some scholars argue that some of the criteria that are utilized to establish sentences are associated with race (Petersilia and Turner, 1985). Blacks, for example, are more likely to injure their victims or use weapons during their crimes.

R E F E R E N C E S

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