Legislatures, Judges, and Parole Boards: The Allocations of Discretion under Determinate Sentencing (original) (raw)

Legislatures, Judges, and Parole Boards: The Allocation of Discretion

The most significant development in criminal sentencing in recent decades has been the shift from indeterminate to determinate sentencing. Yet no study has systematically explored the factors leading to this shift. In this Article, we provide the first analysis to explain why state legislatures enact reforms that significantly reduce both judges' and parole boards' discretion over criminal sentencing. First, we develop a political economy model that explains why legislatures acting in their own self-interest may be motivated to enact these laws. Our model predicts that legislatures are more likely to enact determinate sentencing reforms when there is tension among the political ideologies of legislatures, judges, and parole boards. Then, we empirically test the predictions of our political economy model using data from all fifty states over the period from 1960 to 2000. Our analyses confirm that political variables, such as divided government, are the primary influences on legislatures' decisions to enact determinate sentencing reforms. These results are consistent with our model's hypothesis: long histories of divided government produce clashes among the sentencing goals of legislatures, parole boards, and judges, and legislatures respond by enacting reforms that take power away from the judges and parole boards. Our conclusions are especially important given recent court cases and criticisms that challenge the future of determinate sentencing reforms.

The Swinging Pendulum of Sentencing Reform: Political Actors Regulating District Court Discretion

Brigham Young University Journal of Public Law, 2009

In this article, application of the U.S. Sentencing Guidelines and changes to the law, limiting and expanding judicial discretion under the Guidelines are analyzed from 1999 to 2006 for a sample of drug trafficking cases. Despite a large number of studies on the impact of the U.S. Sentencing Guidelines and their reform, this is the only recent study that specifically controls for case fact variation so that the effect of the law and reforms can be properly tested. Most previous studies of the Guidelines to date do not adequately consider how the facts of the cases may drive the decisions that judges are making. This study substantially advances our understanding of the Guidelines by analyzing cases with similar case facts. The method employed allows for a specific analysis of how the Guideline system both allows for and prevents political actors from controlling disparity in sentencing. The results show that when district court judges use sentencing tables required by the Sentencing Guidelines they overwhelmingly focus their decisions at the very minimum of those ranges, suggesting judicial preferences that are at odds with those of Congress. Further, disparity in sentencing persists among the circuits despite laws that constrain judicial discretion, such as the PROTECT Act of 2003, and laws or cases that broaden discretion, such as the decision of the United States Supreme Court in United States v. Booker. Although disparity is often viewed by politicians and judicial scholars negatively, I argue, based on my quantitative analysis as well as judges' opinions collected from an original nationwide survey and live interviews, that such disparity correctly reflects local realities faced by district court judges in various regions across the country.

Judicial Discretion and Sentencing Behavior

This research studies the impact of changes to federal judicial discretion on criminal sentencing outcomes. The Feeney Amendment to the 2003 PROTECT Act restricted federal judges' ability to impose sentences outside of the U.S. Sentencing Guidelines and required appellate courts to review downward departures. Using data on all federal sentences between 1999 and 2004, we examine the effect of the Feeney Amendment on the downward departures rate and prison sentence. We control for type of offense, district of sentencing, criminal history, and demographic characteristics of the offender, in order to isolate the changes in judicial sentencing due to the implementation of the Feeney Amendment. Our results suggest that the Feeney Amendment reduced the probability of a downward departure by 5% and increased prison sentences by two months. There is no evidence that judges adjust sentences in an effort to circumvent the intentions of the Feeney Amendment.

Judicial Discretion and Sentencing Behavior: Did the Feeney Amendment Rein in District Judges?

2010

This research studies the impact of changes to judicial discretion on criminal sentencing outcomes. The 2003 Feeney Amendment restricted federal judges' ability to impose sentences outside of the Sentencing Guidelines and required appellate courts to review downward departures. Using data on all federal sentences between 1999 and 2004, we show that the amendment reduced downward departures by 5%. Controlling for characteristics of the crime and the offender, we find that the amendment increased average prison sentences by about two months. There is no evidence that judges adjusted offense levels or criminal history in order to circumvent the amendment.

Forty Years of American Sentencing Guidelines: What Have We Learned?

Crime and Justice, 2019

Since 1980, 22 state and federal jurisdictions have adopted sentencing guidelines. Nineteen still have them. No two systems are alike. Experience suggests that any well-designed system requires five core features: a permanent, balanced, independent, and adequately funded sentencing commission; typical-case presumptive sentences and departure criteria; a hybrid sentencing theory that recognizes both retributive and crime control purposes; balance between the competing benefits of rules and discretion; and sentence recommendations informed by resource and demographic impact assessments. Balance is needed in terms of commission composition, between conflicting sentencing purposes, between rules and discretion, and between the influence of the commission, the legislature, and case-level actors. Guidelines proponents disagree about a number of important issues. Some relate to which crimes and sentencing issues should be regulated. Others concern the design details that determine how the system actually works. It is clear, however, that preguidelines regimes of unstructured, highly discretionary sentencing are unacceptable and that commission-drafted guidelines, endorsed by the American Bar Association and the American

Do Sentencing Guidelines Increase Prosecutorial Power: An Empirical Study

Traditionally, judges have had tremendous flexibility in sentencing. Offering judges maximum discretion in the sentencing process allows them to consider not only an offender's criminal history and the severity of the crime committed, but also the complex web of mitigating and aggravating factors present in each case and additional qualitative factors, such as a defendant's testimony or selfpresentation in a courtroom. When judges are empowered with more discretion, however, there is heightened potential for inter-judge variability in sentencing. In order to reduce sentencing disparities caused by individual sentencers, several countries and jurisdictions, most notably in the United States, have enacted laws reducing judicial discretion over the type and length of sentence to be imposed on a defendant for a given offense. The purpose of these sentencing laws is to introduce more formal, rational decisionmaking processes and explicit rules into the legal sentencing system in order to improve inter-judge consistency and reduce disparities. 1 Whether sentencing guidelines usually succeed in reducing unwarranted disparities is a highly debated question. 2

The impact of determinate sentencing on prisoner misconduct

Journal of Criminal Justice, 2012

The shift from indeterminate to determinate punishment policies over the past three decades may have the unintended consequence of increasing prisoner misconduct due to the elimination or reduction of parole and earned gain-time to provide incentives for inmates to comply with institutional rules. This paper advances the existing scholarship addressing this issue. Methods: Data on a cohort of 305,228 inmates admitted to prison in Florida over a twelve year period before and after the enactment of a "truth-in-sentencing" law in 1995 requiring all felons sentenced to prison to serve a minimum 85% of their sentence are examined to assess the impact of determinate punishment on whether inmates commit disciplinary infractions and the frequency of misconduct. Findings: The data show that determinate punishment has had the unintended consequence of significantly increasing the level of inmate misconduct in general and across different types of misconduct; violent, property, and disorderly. Conclusion: The findings indicate that states which currently have or are considering the implementation of determinate sentencing should examine potential changes in policies and practices to alleviate the impact of reductions in inmate incentives to abide by institutional rules.