Interests and Politics in Sentencing Reform: the Development of Sentencing Guidelines in Minnesota and Pennsylvania
Total Page：16
File Type：pdf, Size：1020Kb
Volume 29 Issue 1 Article 2 1984 Interests and Politics in Sentencing Reform: The Development of Sentencing Guidelines in Minnesota and Pennsylvania Susan E. Martin Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation Susan E. Martin, Interests and Politics in Sentencing Reform: The Development of Sentencing Guidelines in Minnesota and Pennsylvania, 29 Vill. L. Rev. 21 (1984). Available at: https://digitalcommons.law.villanova.edu/vlr/vol29/iss1/2 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Martin: Interests and Politics in Sentencing Reform: The Development of S 1983-84] INTERESTS AND POLITICS IN SENTENCING REFORM: THE DEVELOPMENT OF SENTENCING GUIDELINES IN MINNESOTA AND PENNSYLVANIA SUSAN E. MARTINt TABLE OF CONTENTS I. INTRODUCTION ... ......................................... 22 II. THE POLITICAL AND LEGAL CONTEXT OF SENTENCING REFORM ................................................... 25 A. The Nature of the Problem ............................. 25 B. CriminalJustice Systems in Mnnesota and Pennsylvania ... 28 III. THE POLITICS OF SENTENCING REFORM IN M INNESOTA ............................................... 34 A . The Legislation ...................................... 34 1. The Legislative Battle ............................. 34 2. The Provisions of the Law ......................... 39 3. The Role of Interest Groups in Shaping the Sentencing Law ............................................ 4 1 B. Formulating the Guidelines ............................. 43 1. The Key Elements in Shaping the Guidelines ......... 43 2. Constructing the Guidelines ......................... 50 3. Endorsements and Interest Group Positions ............ 58 4. The 1980 Legislative Session Strategy ............... 60 IV. THE POLITICS OF SENTENCING REFORM IN PENNSYLVANIA ............................................ 61 A . The Legislation ...................................... 61 1. The Legislative Battle ............................. 61 2. The Provisions of the Law ......................... 66 t B.A. Swarthmore College, 1962; M.S. University of Rochester, 1964; Ph.D. American University, 1977. The author is Project Director of a Study of Policing Career Criminals at the Police Foundation, Washington, D.C. This paper was originally prepared for the Panel on Sentencing Research of the National Research Council. An earlier version was presented at the Panel's confer- ence at Wood's Hole, Massachusetts in July, 1981. See Martin, The .-olics of Sentenc- ing Reform: Sentencing Guidelines on Pennsylvania and Minnesota, in 2 RESEARCH ON SENTENCING: THE SEARCH FOR REFORM (A. Blumstein, J. Cohen, S. Martin & M. Tonry eds. 1983). The author wishes to thank Sheldon Messinger, Andrew von Hirsch, Jonathan Casper, Michael Tonry, David Rothman, Kay Knapp, Dale Par- ent, and John Kramer for helpful comments. (21) Published by Villanova University Charles Widger School of Law Digital Repository, 1984 1 Villanova Law Review, Vol. 29, Iss. 1 [1984], Art. 2 VILLANOVA LAW REVIEW [Vol. 29: p. 21 3. The Role of Interest Groups in Shaping the Sentencing L aw ............................................ 69 B. Formulating the Guidehies-PhaseI .................... 70 1. The Key Elements in Shaping the Guidehnes ......... 71 2. Constructing the Guidelies ......................... 78 3. Legislative Rejection and Subsequent Developments ..... 89 C. Redesignig the Guidelines-PhaseII ................... 94 1. The Mandate and Membership ...................... 94 2. The Revision Process .............................. 95 3. Changes in the Guidelines .......................... 95 4. Public Hearigs and Legislative Submission ........... 97 V . A NALYSIS ... ............................................... 99 A. Addressing the Problems of Disparity, Severity, and A uthority ............................................ 99 B. The Legislative M andate .............................. 102 C. Internal Dynamics.* Membership, Leadership, and Staff .... 103 D. Interpreting the Mandate and Designing the Guidelines .... 104 E. The Product.- A Comparison of Minnesota's and Penn- sylvania's Sentencing Guidelines ......................... 107 F. The Role of Interest Groups ............................ 110 G. Conclusion ........................................... 111 I. INTRODUCTION AWAVE of dissatisfaction with the existing indeterminate sentenc- ing policies and practices swept across the nation in the early 1970's. Critics from a wide spectrum of political interests criticized the use of the indeterminate sentence and the theory of rehabilitation on which it rested.' The critics focused on the extensive disparity in sentences and called for reforms to limit and structure discretionary decisionmaking. 2 In response, various jurisdictions rejected indeter- minate sentencing in favor of more systematically structured sentenc- ing decisionmaking. State legislatures passed presumptive flat-time sentencing 3 and mandatory minimum sentencing laws, 4 and abol- 1. For a discussion of the policies underlying indeterminate sentencing, see notes 13-14 and accompanying text infra. 2. For a general overview of sentencing reforms, see generally notes 18-21 and accompanying text infra. See also Dowd, The Pit and the Pendulum- Correcttonal Law Reform from the Sixties into the Eighties, 29 ViLL. L. REV. 1 (1983). 3. California became the first state to adopt across-the-board presumptive sentences for offenders committed to prison by passing the Uniform Determinate Sentencing Law in 1976. 1976 Cal. Stat., ch. 1139, § 273, at 5140 (codified as amended at CAL. PENAL CODE § 1170 (West Supp. 1983)). For a general discussion of the California statute, see Messinger & Johnson, Callfornia s Determinate Sentence Stat- ute: History andIssues, in NAT'L INST. OF LAW ENFORCEMENT AND CRIM. JUST., U.S. https://digitalcommons.law.villanova.edu/vlr/vol29/iss1/2 2 Martin: Interests and Politics in Sentencing Reform: The Development of S 1983-84] SENTENCING GUIDELINES ished parole release. 5 Parole boards responded by establishing guide- lines to structure parole, 6 and the judiciary adopted voluntary sentencing guidelines.7 Two states, Minnesota and Pennsylvania, have responded by in- stituting similar alternative approaches to sentencing reform. In 1978, each state legislature created a hybrid body called a sentencing guidelines commission which was authorized to produce sentencing DEI'T OF JUST., DETERMINATE SENTENCING: REFORM OR REGRESSION? 13-18 (1978). Other states that have since adopted analogous legislation are as follows: Alaska (for second and subsequent offenders), Arizona, Colorado, Illinois, Indiana, New Jersey, and North Carolina. See generally von Hircsh & Hanrahan, Determzate Penalty Systems in America: An Overview, 27 CRIME & DELINQ. 289 (1981). Typically, pre- sumptive sentencing schemes do not attempt to regulate the judicial decision whether or not to imprison, but instead govern the duration of a prison sentence if the judge has chosen to impose one. Id. at 299. 4. Between 1977 and 1980 mandatory minimum sentencing laws were adopted in 27 states and were under consideration in 14 others. These laws typically directed that repeat offenders who commit violent crimes or crimes involving a firearm be sentenced to a prison term of not less than a specified period of years. U.S. DEP'T OF JUST., CRIME IN THE UNITED STATES-1979 (1980). 5. "Parole release" refers to "the conditional release, for a specified period, of an offender who has already served a portion of his sentence in a correctional institution. While on parole, the released prisoner remains in the custody of the paroling author- ity and may be returned to the penal institution for violations of parole regulations or for commission of a new offense." D. LIPTON, R. MARTINSON & J. WILKS, THE EFFECTIVENESS OF CORRECTIONAL TREATMENT: A SURVEY OF TREATMENT EVAL- UATION STUDIES 9 (1975). Parole release has been abolished in Alaska, California, Colorado, Illinois, Indiana, New Mexico, and North Carolina. Von Hirsch & Hanra- han, supra note 3, at 299 n.28. 6. Parole guidelines to establish explicit standards for release decisions were first developed by the (then) United States Board of Parole. In 1976, these guidelines were mandated for use through the entire federal system and have served as a model for many of the 17 states that, as of 1979, were reported to have parole guidelines. UNIFORM PAROLE REPORTS, PAROLE IN THE UNITED STATES: 1979 at 11 n.1. See generally von Hirsch & Hanrahan, supra note 3, at 309-12. See also Project, Parole Re- lease Decisionmakingand the Sentencing Process, 84 YALE L.J. 810 (1975) (analyzing inno- vations in the federal parole system, including hearing reforms and detailed parole guidelines). 7. Following the successful implementation of the U.S. Parole Commission's guidelines, the developers sought to test the feasibility of guidelines for sentencing. See generally L. WILKINS, J. KRESS, D. GOTFREDSON, J. CAUI'IN & A. GELMAN, SENTENCING GUII)EIINES: STRUCTURING JUDICIAl, DISCRETION (1978) [hereinafter cited as STRUCTURING JUDICIAL DISCRETION]. Massachusetts, Denver, and Phila- delphia adopted voluntary sentencing guidelines using a methodology sometimes termed "the Albany approach,"