The author(s) shown below used Federal funds provided by the U.S. Department of Justice and prepared the following final report: Document Title: Judges and Discrimination: Assessing the Theory and Practice of Criminal Sentencing Author(s): Charles W. Ostrom ; Brian J. Ostrom ; Matthew Kleiman Document No.: 204024 Date Received: February 2004 Award Number: 98-CE-VX-0008 This report has not been published by the U.S. Department of Justice. To provide better customer service, NCJRS has made this Federally- funded grant final report available electronically in addition to traditional paper copies. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. Judges and Discrimination Assessing the Theory and Practice of Criminal Sentencing Apprwed By: m Authored by: Charles W. Ostrom Michigan State University Brian J. Ostrom National Center for State Courts Matthew Kleiman National Center for State Courts With the cooperation of the Michigan Sentencing Commission and the Michigan Department of Corrections This report was developed under a grant from the National Institute of Justice (Grant 98-CE-VX-0008). The opinions andpoints of view in this report are those of the authors and do not necessarily represent the official position or policies of the National Institute or the Michigan Sentencing Commission. 1 The sentencing decision is the symbolic keystone of the c~minaljustice system: in it, the conflicts between the goals of equal justice under the law and indvidualzedjustice with punishment tailored to the offender are played out, and sociely5s moral principles and highest vaiues-life and libedy-are interpreted and appled. Research on Sentencing: neSearch for Reform (1983) The sentencing decision receives considerable attention from both researchers-who look at the determinants of the sentence choice-and policy makers-who look at the necessity and possibility of reform. Yet, despite decades of study, there are large gaps in our understanding of how "punishments are tailored" across the full range of sentencing options. Any effort to explain sentencing outcomes means coming to terms with judicial discretion and how it is put into practice. Judges are the voice of sentencing, but their freedom of choice is limited by the statutes and sentencing structures existing in a particular state. Since the late 1970s, judicial discretion has been constrained by the creation of sentencing guidelines and other means for structuring the sentencing decision. Some argue these structures unduly restrict a judge's ability to appropriately weigh the factors that play a role in sentencing, while others feel that additional measures, such as mandatory minimum sentencing laws, are needed to constrain judicial discretion further. But regardless of ones personal views on circumscribing judicial discretion, a comprehensive assessment of sentencing outcomes in 2 present day America must integrate understanding of the sentencing proclivities of individual judges with the way discretion is shaped and controlled. Our interest in sentencing outcomes is focused on disparity, According to the U.S. Congress, sentencing disparity exists "when defendants with similar criminal records found guilty of similar criminal conduct receive dissimilar sentences."' In practice, disparity refers to differences in sentencing outcomes that are associated with "extralegal" factors such as race, ethnicity, economic standing, gender, or the exercise of certain procedural rights (e.g., trial). Disparity exists whenever extralegal factors influence the sentence once the legitimate factors related to the offense/offender are taken into account. Not all sentencing variation is unwarranted; sentences properly reflect differences in the seriousness of the offense and/or the criminal history of the offender. Assessing disparity requires distinguishing between differences in sentences that meet the state's legitimate purposes in sentencing and those differences whose consideration is prohibited by the offender's constitutional rights. Existing data sources make clear why the issue of disparity in sentencing remains center stage. Between 1980 and 2000 the prison population in the United States grew by one million individuals. As can be seen in Figure 1-1, the rate per 100,000 population in 1980 was 139, growing to 460 per 100,000 by 2000 - an increase of 300%. Dramatic increases have been experienced in all states. 28 U.S.C. 5 991(b)(l)(B). 3 figure 1-1 : Incarceration rates for prisoners under State or Federal jurisdiction, per 100,000 residents e 500 0 3 450 -(P g 400 2 350 8 300 8 250 200 150 !!l Q) 100 5 50 .-a toJ ,,,,,,,,,,,,,,,,,,I 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 Year Figure 1-2 shows that the increases in prison population have not occurred across the board. Although violent offenders comprise the largest share of prison population, the greatest increase has been for drug offenders. In 1980, 58% of those coming to prison were convicted of violent offenses and 6% for drug offenses. By 2000,48% were coming for violent offenses while 21% were coming for drug offenses. Proportionally, there are lO0/o fewer violent offenders and 15O/0 more drug offenders than in 1980. 4 Figure 1-2 Number of Prison Sentences by Offense Type, 1980-1999 600,OOo 500,000 400,OOo 300,OOO 200,000 100,OOo a I 1980 1983 1986 1989 1992 1995 1998 The racial mix of prison population has remained remarkably stable over the past two decades. While blacks make up 12S0/o of the US. population, they account for about one half of the prison population: African Americans are still over-represented in state prison population versus the total population in all states.* The average incarceration rate for Blacks is 1,547 per 100,000 population while the average for Whites is 188 per 100,000 -the incarceration rate for Blacks is approximately 8 times higher than for Whites. On the surface, these numbers raise the specter of discrimination. Our empirical approach to assessing disparity is illustrated through a comprehensive analysis of sentencing outcomes in Michigan. Sentencing in Michigan is structured through a set of sentencing guidelines that are described in detail in Chapter 5. While we believe our methods have utility for measuring disparity in all sentencing systems, the choice to develop and refine them within * In a recent Bureau of Justice Statistics (BJS) special report (Bonczar et al. 1997) using 1991 as a base year, it was noted that Blacks have a 28.5% chance of going to prison in their lifetime, Hispanics have a 16% chance, and whites have a 4.4% chance. 5 a guidelines context offers several advantages (see also Ulmer 1997). To begin with, guidelines are an accepted part of the sentencing landscape and viewed by many as the best means to structure judicial discretion to attain consistency and fairness in sentencing. In addition, the control of disparity is often an explicit rationale for their development. Finally, guidelines require the collection and classification of a great deal of objective data essential for the empirical study of disparity. Therefore, beyond clarification of the statistical methods, our approach allows us to address the larger issue of how the guidelines model of structuring judicial discretion can be designed to better achieve the articulated goals of consistency and elimination of unwarranted disparity-with data sufficient to conduct a full and comprehensive study. We begin with an overview of the recent history to control judicial discretion through sentencing guidelines. It also serves to place the Michigan system in broader perspective. We then turn to the specific goals of this book. The Changing Nature of Judicial Discretion Judicial discretion is increasingly constrained through sentencing guidelines as well as mandatory minimum penalties, three-strikes laws, and other forms of structured sentencing. The sentencing reforms since the 1970s have sought to limit judicial discretion and, at least on paper, have largely succeeded in that objective. Judges in many states find that statutory provisions mandate the factors that must be considered when passing sentence, designate the relative importance of those factors, and specify a presumptive sentence (or 6 range) for a defendant based on offense seriousness and prior criminal involvement. The attention given to judicial sentencing should be understood as a part of a sea change that occurred in sentencing philosophies. The 1970s brought the transition from a venerable system of "indeterminate sentencing" to a new one organized around the principle of "just desserts." Indeterminate sentencing combined two main features. First, judicial discretion in sentencing was wide and largely unchecked, save for legislatively specified maximums and (less commonly) minimums. Second, judicial decisions regarding sentence length was paired with a system of state parole boards, appointed by the governor, whose release decisions determined the actual length of time offenders spent in custody. The formal principle underlying indeterminate sentencing was substantive rationality: achieving the sentence that is just for each individual defendant (Ulmer and Kramer 1996). This principle encouraged the use of extralegal factors to establish, for example, the rehabilitative potential of the offender. The heyday of indeterminate sentencing coincided with a period of optimism about the potential for rehabilitation--the 1960s--in which