Handbook on Sentencing Policies and Practices in the 21st Century

Cassia Spohn, Pauline Brennan

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367530983
• eBook ISBN: 9780429648298
• Topic: Politics & International Relations
• Subtopic: Criminology
• Index: Politics & International Relations

Sentencing Policies and Practices in the 21st Century focuses on the evolution and consequences of sentencing policies and practices, with sentencing broadly defined to include plea bargaining, judicial and juror decision making, and alternatives to incarceration, including participation in problem-solving courts.

This collection of essays and reports of original research explores how sentencing policies and practices, both in the United States and internationally, have evolved, explores important issues raised by guideline and non-guideline sentencing, and provides an overview of recent research on plea bargaining in the United States, Australia, and the United Kingdom. Other topics include the role of criminal history in sentencing, the past and future of capital punishment, strategies for reducing mass incarceration, problem-solving courts, and restorative justice practices. Each chapter summarizes what is known, identifies the gaps in the research, and discusses the theoretical, empirical, and policy implications of the research findings. The volume is grounded in current knowledge about the specific topics, but also presents new material that reflects the thinking of the leading minds in the field and that outlines a research agenda for the future.

This is Volume 4 of the American Society of Criminology's Division on Corrections and Sentencing handbook series. Previous volumes focused on risk assessment, disparities in punishment, and the consequences of punishment decisions. The handbooks provide a comprehensive overview of these topics for scholars, students, practitioners, and policymakers.

Part I

The Evolution of Sentencing Policies and Practices

1

The Transformation of Sentencing in the 21st Century

Megan C. Kurlychek and John H. Kramer

Scholars of criminal justice and criminology often debate the philosophical purpose and procedures of our nation’s criminal justice system as they relate to current sentencing practice, but seldom do they reflect upon its origins, the twists and turns it has undertaken over time, and how these pathways might inform and even predict future directions. Originally modeled from English practice rooted in the seminal work of Cesare Beccaria’s “On Crimes and Punishment” (1764), the system was designed to deter crime by providing penalties that were proportionately severe to the offense committed. Thus, the determinate sentence handed down by a judge was to be just severe enough to outweigh any benefits reaped from the commission of the offense. Viewing man as a rational and utilitarian being, this philosophy would work because the pain caused by the punishment would outweigh any possible benefit. Of equal import for our discussion is the central tenet of proportionality in that the punishment “… should fairly reflect the degree of reprehensibleness (that is, the harmfulness and culpability) of the actor’s conduct” (von Hirsch & Ashworth, 2005). If the punishment did not seem to fit the crime, that is, if it was too severe, this philosophy suggests and research supports that the punishment could actually undermine the legitimacy of the system and lead to increased crime (Tyler, 2006; Baker, 2017).

For the first 100 years of our nation’s history, deterrence and proportionality reigned supreme over sentencing policy. However, a significant re-direction of our philosophy of punishment came in 1870 when the Prison Congress proposed treatment rather than punishment as the purpose of incarceration and encouraged the adoption of indeterminate sentencing practices to replace the use of “proportionately severe” determinate sentences. Put simply, instead of the sentence being prescribed as a fixed amount of time proportional to the severity of the crime, the sentence length was open (e.g., indeterminate), to end only when the individual was deemed rehabilitated.¹ By the mid-1940s, the federal government and all states had switched to a primarily indeterminate sentencing model that adopted this new philosophy (Tonry, 1999). But, after another 100 years from the original shift, this new model was to come under question and a return to the deterrence philosophy would begin. Only this time, as we will extrapolate below, the new philosophy would expand to include notions of retribution and incapacitation as well, which would in turn result in an increased emphasis on severity, rather than proportionality, of sentence. In this chapter we explore not only the original shift from deterrence to treatment, but the more recent shift from treatment to punishment that has been the query of several scholars—framing the question in both the past and future. We finish with a discussion of recent winds of change we see on the horizon and the complex task of making predictions about what sentencing in the 21st century will become.

Implementing the Rehabilitation Model

The rehabilitative model of criminal justice (sentencing), although seemingly benevolent and therefore desirable, holds the somewhat questionable assumption that offenders suffer from some physical, mental or social “sickness” that can be diagnosed and treated. Individuals do not therefore act fully from a point of rationality and choice, but rather may suffer from an ailment (ranging from a diagnosable mental condition to a drug or alcohol addiction) or suffer from extreme negative social circumstances such as poverty and exposure to violence and victimization that place the individual at risk for criminal behaviors. Such diagnoses are typically the function of intake officers, probation workers, and pre-sentence investigations that often rely on risk (and in more modern time, risk, needs and responsivity) assessments (Andrews, Bonta, & Hoge, 1990). Once the ailment is diagnosed, the system can then prescribe the proper treatment to cure, or rather, rehabilitate, the offender into a functional and productive citizen. While such a model seems progressive and desirable, having been first introduced in the late 1880s, it wasn’t until decades later that social scientists began to question the lack of empirical evidence on its effectiveness in crime control (Bailey, 1966; MacNamara, 1977; Martinson, 1974).

In fact, still high on the rehabilitative ideal, in 1966 New York Governor Rockefeller formed the Governor’s Special Committee on Criminal Offenders. This committee was charged with devising imaginative new approaches to rehabilitate offenders for “any way we can rehabilitate more of these criminal offenders and reduce the number of repeaters” was proposed as the best method to significantly reduce crime in New York. To fulfill this end the Committee and the New York Office of Crime Control Policy (later to become the Division of Criminal Justice Services) contracted with two criminologists to conduct a survey regarding what was known about the effectiveness of rehabilitative efforts. The final report, which was not published until 1974 for mostly political reasons, reviewed 231 evaluations of a variety of correctional treatment programs including educational training, vocational and skills training, counseling/psychotherapy, surgical treatments, and intensive community supervision. Although the report did find that about half the programs reported success, at least with certain types of offenders, the final results of this “What Works?” report were instead interpreted as “Nothing Works” (Sanchez, 1990, p. 131). Although Robert Martinson himself (1979) would later acknowledge that his conclusions were overstated, until this time the benefits of the treatment philosophy had just been assumed (Clark, 1970). Thus, Martinson’s work exposed a critical gap in scientific knowledge and created a crisis in the field. With crime on the rise and conservatives blaming the increase on lenient liberal policies, this lack of evidence for the medical model delivered a nearly fatal blow to the rehabilitative philosophy of corrections.

Historian David Rothman (1980) in his book, Conscience and Convenience, further unveils the imperfections of correctional developments during the latter part of the 19th century through the mid-20th century. As the title of his book suggests, the progressives’ (1870–1970) agenda of reforming offenders was undermined as it ran into institutional “convenience” in its application. In Rothman’s (1980, p. 10) view, “… when conscience and convenience met, convenience won. When treatment and coercion met, coercion won.” That is, what may appear to be treatment on the surface was not always so carefully implemented or followed when one dives below the surface. In this sense, Rothman saw the essential ingredients of the anti-progressive movement even as it seemingly operationalized the progressives’ treatment model. Given this backdrop, perhaps Martinson’s conclusions were not as startling as they first appeared, as much treatment was never fully implemented. Or, perhaps, the goals of treatment were subservient to the interests and goals of those in the organization who had minimal interest or training in the treatment agenda.

From this view, one might ask why reform a system that already operated with a coercive punitive orientation despite its shiny, rehabilitative “cover?” Yet, in the late 1960s and 1970s the attacks on the progressive treatment model were broad-based, coming from both liberals and conservatives, and they were strident and vicious. Liberals (American Friends Service Committee, 1971; Frankel, 1972; von Hirsch, 1973) argued that treatment didn’t work, caused unwarranted disparity, and was overly punitive. Conservatives believed treatment did not work and that the policies of the time were overly lenient on the offender without paying needed attention to protection of victims and society (Carrington, 1983; Cary, 1993; Wilson, 1975). Thus, the liberals wanted to replace the indeterminate sentencing system with determinate sentences built on a “just desert” framework that would correct the unfairness in the indeterminate model while maintaining or reducing prison populations. On the other hand, conservatives viewed the fix to increase the certainty and severity of sanctions. In the context of a rising crime rate, however, the balance was certain to tip in the conservative direction.

The conservative attacks came from the view that the individualized treatment model had resulted in lenient penalties that undermined the rule of law and lowered the deterrent and incapacitative effect of sentences. These attacks were grounded in two key developments. First, beginning in the mid-1960s, crime rates had dramatically increased. Second, reviews of correctional treatment by Bailey (1966) and Martinson (1974) found little support for the effectiveness of treatment. Indeed, Robert Martinson’s comprehensive review, as noted above, was broadly interpreted as concluding that “nothing works.” The conservative view pounced upon the perspective that treatment did not work and that its leniency had caused a breakdown in social control, resulting in a crisis and the need to reestablish law and order (Carrington, 1975; Cary, 1993). It is from the more conservative stance that mandatory minimum sentences, three-strikes legislation, and truth in sentencing became the discretionary control mechanism that resonated across the country, such that by the 1990s all states had passed some flavor of these reforms (MacKenzie, 2001; Stemen, Rengifo, & Wilson, 2006).

Sentencing reform, however, did not just rest with conservative efforts; liberals were also concerned with sentencing practices for a different reason. The liberal attacks were first resoundingly expressed by the American Friends Service Committee (1971), where in its report, Struggle for Justice, it concluded “… the individualized treatment model, the ideal toward which reformers have been urging us for at least a century, is theoretically faulty, systematically discriminatory in administration, and inconsistent with some of our most basic concepts of justice” (American Friends Service Committee, 1971, p. 12). But this was just the beginning. Struggle for Justice was followed in the next decade by a series of commentaries and proposals (see, for example, von Hirsch, 1976; Twentieth-Century Fund, 1976; Singer, 1979) that indicted the treatment model for its unbridled discretion and harshness.

Perhaps the most compelling attack on sentencing came from inside the judiciary. Federal Judge, Marvin Frankel, gave a series of lectures in the early 1970s that were published under the title Lawlessness in Sentencing (1972) and later as a book entitled Criminal Sentences: Law without Order (1973). Frankel argued that judicial sentencing discretion was “lawless,” as judges did not have to justify their sentences and their broad discretion was unreviewable. The result of this broad discretion was, to him, unacceptable levels of sentencing disparity. Consequently, Frankel argued that we needed an administrative agency (sentencing commission) that would establish sentencing guidelines to structure judicial sentencing discretion. Frankel’s proposal stimulated a major series of sentencing reforms across the country at both the federal and state level. The commission promulgated guidelines were designed to help judges determine the appropriate sentences to be served for a crime, to reduce judicial discretion and, thus, reduce disparities in sentencing. However, hidden, perhaps not so carefully, within these policies, were definitions of crimes and their proposed punishments that would adversely impact minority populations—particularly, young black males (Tonry, 1997). Moreover, in many cases these new policies would actually introduce, rather than reduce, disparities in sentencing outcomes. Probably the most visible of these was the USSC cocaine guidelines that extended mandatory minimums and disproportionately applied penalties to crack versus powder cocaine (Tonry, 1997; 2016).

Catalyst for Change

As suggested above, the period of the 1970s signaled the demise of rehabilitation as the driving purpose of sentencing in both academic and political circles and began a thirty-year revolution in sentencing policy and practice. These changes, particularly conservative initiatives to implement mandatory and truth-in-sentencing laws, set the stage for what often has been referred to as America’s great experiment with mass incarceration. In Garland’s (2001) work, The Culture ...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Contributors
• Sentencing Policies and Practices in the 21st Century: An Introduction
• Part I The Evolution of Sentencing Policies and Practices
• Part II Issues in Guideline and Non-Guideline Sentencing
• Part III Plea Bargaining
• Part IV Capital Punishment
• Part V Current Controversies
• Index