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O J C S Office of Justice Programs F A V M F O I N A C I J S R E BJ G O OJJ DP O F PR National Institute of Justice JUSTICE SENTENCING & Issues for the 21st Century September 1999 Papers From the Sessions on Sentencing and Corrections No. 2 Reconsidering Indeterminate and Structured Sentencing by Michael Tonry Directors’ Message

It is by now a commonplace that the number merican sentencing and corrections sentencing systems, and more than 30 retain of people under supervision policies are in ferment. No longer is some form of indeterminate sentencing. The in this country has reached a record high. As A there anything that can be characterized numbers are imprecise because systems differ a result, the sentencing policies driving that as the American approach. Thirty years ago so greatly that reasonable people can disagree number, and the field of corrections, where there was. Every State, the Federal Government, over which label best characterizes a particu- the consequences are felt, have acquired an and the District of Columbia had an indeter- lar system. All are affected by unprecedented salience. It is a salience defined minate sentencing system in which legisla- recently enacted three-strikes, mandatory more by issues of magnitude, complexity, and tures set maximum authorized sentences minimum, or truth-in-sentencing . expense than by any consensus about future (and occasionally, but seldom, minimum sen- directions. tences); chose among , Sentencing and corrections policies are frac- Are sentencing policies, as implemented through , and fines and set maximum sen- tured or fracturing. What look like monolithic correctional programs and practices, achieving tences; corrections officials had broad powers tough-on- policies in many jurisdictions their intended purposes? As expressed in the over good time and furloughs; boards are being undermined from within by new, movement to eliminate indeterminate senten- set release dates; and virtually all these deci- individualized programs and approaches. cing and limit judicial discretion, on the one sions were immune from review by appellate Many people, asked to characterize American hand, and to radically restructure our retribu- . The details varied, but the broad out- crime policies, might describe the unprece- tive system of justice, on the other, the purpos- es seem contradictory, rooted in conflicting lines were everywhere the same. dented and continuing expansion of jail and populations, the widely shared impulse values. The lack of consensus on where sen- tencing and corrections should be headed is In 1999, there is no standard approach. to lengthen sentences for violent offenders, thus no surprise. Some jurisdictions retain parole; some have the federally encouraged truth-in-sentencing abolished it. Most retain good time, but of movement that requires offenders to serve at Because sentencing and corrections policies lesser scope than in the past. A sizable minor- least 85 percent of nominal prison sentences, have such major consequences—for the ity have adopted some form of “structured the initiatives in many places to limit ’ allocation of government resources and, more sentencing.” Eight or 9 operate “presump- opportunities and worsen their living condi- fundamentally and profoundly, for the quality of justice in this country and the safety of its tive” sentencing guidelines systems, another tions, and the reluctance of elected officials citizens—the National Institute of Justice and the 8 to 10 have “voluntary” guidelines, and to advance policies that an opponent might Corrections Program Office (CPO) of the Office 2 jurisdictions in 1 State have “mandatory” characterize as soft. of Justice Programs felt it opportune to explore guidelines. Five have statutory determinate them in depth. Through a series of Executive Sessions on Sentencing and Corrections, begun

Research in Brief CONTINUED ... 2 Sentencing & Corrections

Directors’ Message While there is no doubt widespread support ■ ■ ■ for policies primarily premised on retributive CONTINUED ... notions of deserved and required harsh pun- Sentencing and corrections ishments, that is neither the whole nor a in the at in 1998 and continuing through the year 2000, practitioners and scholars foremost in their consistent story. The burgeoning drug century’s end movement, for example, is creating new field, representing a broad cross-section of ecause no single, widely shared vision of diversion opportunities for many thousands points of view, are being brought together to what sentencing and corrections should of offenders, and in some jurisdictions eligi- B find out if there is a better way to think about be about has emerged to replace indeterminate bility is being extended to increasingly serious the purposes, functions, and interdependence sentencing, any effort to describe “American of sentencing and corrections policies. offenses and offenders; increasing numbers sentencing and corrections policies” is bound of offenders who face mandatory prison We are fortunate in having secured the assis- to be oversimplified and inadequate. A com- sentences if convicted find themselves being tance of Michael Tonry, Sonosky Professor plicated classification might take several fac- diverted from prosecution altogether. In many of and Public Policy at the University of tors into account: Minnesota Law School, as project director. States, policies have been adopted that aim to divert many nonviolent offenders from prison One product of the sessions is this series of ■ The retention and scope of discretionary into community-based programs. Similarly— papers, commissioned by NIJ and the CPO as parole release. the basis for the discussions. Drawing on the though this has advanced less far—restorative ■ The retention and scope of good time. research and experience of the session partici- and community justice programs in many pants, the papers are intended to distill their places are moving toward dealing with ■ The existence and scope of prison adminis- judgments about the strengths and weaknesses increasingly serious and offenders. trators’ authority to release prisoners on fur- of current practices and about the most prom- loughs, to , or to various kinds ising ideas for future developments. Creative and ambitious people in many places of partial and intermittent confinement. are trying new things. Drug courts are one The sessions were modeled on the executive example. Efforts to incorporate broad-based ■ The breadth of mandatory minimum, three- sessions on policing held in the 1980s and strikes, and truth-in-sentencing laws. 1990s under the sponsorship of NIJ and community participation into corrections pro- Harvard’s Kennedy School of Government. grams and policy setting are another. Efforts ■ The existence of sentencing guidelines and Those sessions played a role in conceptualizing to incorporate restorative and community ele- whether they (1) cover felonies and misde- community policing and spreading it. Whether ments in individual programs or on depart- meanors or felonies only; (2) cover all the current sessions and the papers based on mentwide, countywide, or statewide bases sentences or confinement only; (3) are pre- them will be instrumental in developing a new are still another. In Wisconsin and elsewhere, sumptive, voluntary, or mandatory and, if paradigm for sentencing and corrections, or practitioners are experimenting with new presumptive or mandatory, whether they are even whether they will generate broad-based forms of indeterminate “risk-based” sentenc- rigorously enforced by the appellate courts support for a particular model or strategy for ing. In many places, developments of the past as in the Federal system or loosely as in change, remains to be seen. It is our hope that decade—structured sentencing, recognition Pennsylvania. in the current environment of openness to new of victims’ interests, and expansion of com- ideas, the session papers will provoke com- munity and intermediate —are Once those distinctions are made—and they ment, promote further discussion and, taken being extended. understate the range of variation—there together, will constitute a basic resource docu- ment on sentencing and corrections policy would be no more than a few States in any In an effort to shed light on some of the com- issues that will prove useful to State and local category. policymakers. peting conceptions of sentencing and correc- tions in this country, this paper presents an The structure of sentencing Jeremy Travis overview of the state of indeterminate and and corrections in the States Director National Institute of Justice structured sentencing and examines argu- No one has attempted a survey of how U.S. Department of Justice ments for and against each approach. The American jurisdictions handle sentencing other two current conceptions of sentencing and corrections. For one thing, such a survey Larry Meachum Director and corrections—community/restorative and would be too complex. No conventional cate- Corrections Program Office risk-based—are discussed in two separate gories or labels encompass all the important U.S. Department of Justice policy briefs in this publication series. structural differences in the States’ sentencing and corrections systems. The Bureau of Justice Sentencing & Corrections 3

Assistance (BJA), U.S. Department of Justice, parole but jails are the responsibility of and corrections, since it remains the majority has, however, published two recent surveys local—usually county-level—managers. approach. Why has it survived in so many that attempt to characterize State sentencing places? Possible explanations include inertia ■ Some States have partly consolidated systems. (any existing arrangement creates vested systems in which two State agencies have interests that resist change), efficiency (the authority over State-level functions—for Thirty-six States and the District of Columbia discretion granted officials readily permits example, one agency operates and have indeterminate sentencing systems, BJA adjustments to accommodate new circum- probation and a second operates parole, or reported in its most recent State sentencing stances), and general satisfaction (prosecu- one operates prisons and a second operates survey.1 The rest had determinate sentencing tors, judges, and corrections officials may probation and parole—and local agencies systems. BJA’s key test to distinguish between believe it provides useful tools for achieving operate jails. the two types of systems was whether parole legitimate goals). release remained available for a sizable frac- ■ Some States have fragmented systems in tion of cases; the 14 determinate sentencing which separate agencies operate State pris- Origins and characteristics States had largely eliminated parole release ons, probation, and parole while local agen- Full-blown indeterminate sentencing existed (though typically not parole supervision), and cies operate jails. in every American from the 1930s the indeterminate sentencing States had not. to the mid-1970s, at which point Maine and ■ Some States have more fragmented systems California became the first to reject core fea- in which authority is divided among various Using a different organizing scheme, BJA tures such as parole release and the idea that combinations of one to three State agencies; found there were 5 “statutory determinate probation ought to be available in nearly these coexist with various combinations of sentencing states” (States where there was no every case. local jail, probation, and parole agencies and, parole release, and where sentencing standards sometimes, consolidated local community were stated in ), 30 “indeterminate “Individualization” was the fundamental idea corrections agencies. sentencing jurisdictions” (States where there behind indeterminate sentencing. At every was parole release, and where there were no ■ Some States have even more fragmented stage officials needed broad authority to tailor sentencing guidelines), 6 “voluntary/advisory systems in which separate State and local dispositions to the treatment needs of individ- sentencing guidelines states” (voluntary agencies have authority over guidelines with or without parole release), overlapping functions (for and 10 “presumptive sentencing guidelines example, State and local pro- there is no single american approach to states” (States with or without parole release bation systems) or parallel sentencing and corrections. and where presumptive guidelines were functions. An example of the backed by appellate review).2 latter is Minnesota, where some counties have county-level community ual offenders and the public safety risks they How the States corrections agencies while in other counties posed. Probation officers were to assert broad organize corrections the State Department of Corrections performs authority over probationers and to help them Just as there is no single American approach to those functions. find jobs and overcome personal problems, sentencing and corrections, there is no single and they were also to help judges make the approach to the way they are organized. The All this diversity is a challenge and an oppor- best decisions by preparing comprehensive principal functions of corrections managers tunity. The challenge is to overcome the politi- diagnostic presentence investigation reports. and the scope of their authority vary widely: cal and practical barriers to change posed by Judges needed broad authority to set appro- such great diversity. The opportunity is that ■ A few States, including Delaware, have con- priate sentences; parole boards needed so many corrections managers have so much solidated corrections systems in which one authority to set release dates and release range for innovation and exploration. State agency has authority for management conditions; and prison managers needed authority to award and deny good time, grant of prisons, jails, probation, and parole (now ■ ■ ■ vestigial in Delaware); managers in such sys- furloughs, and move prisoners between insti- tems thus have the broadest scope of authority. Indeterminate sentencing tutions and programs. ■ A few States have partly consolidated systems t is curious that indeterminate sentencing is The Model Penal Code, developed in the in which one State agency has authority for Ithe least discussed, studied, or openly sup- 1950s, was the high point in the conceptual- management of prisons, probation, and ported of the four conceptions of sentencing ization of indeterminate sentencing. Although 4 Sentencing & Corrections

developed for the American Law Institute, an tenced to imprisonment but also to exercise Public sentiment. Although neither the first establishmentarian organization of , some influence upon its length.” It then points nor the final proposed drafts contained provi- judges, and law professors, the group that out that proposals to shift all authority over sions for mandatory sentences or probation wrote the Code’s sentencing and corrections sentence length to a treatment board or cor- ineligibility (except concerning life sentences provisions included , psychia- rections administrators were “considered at and the death penalty), the final draft implicitly trists, mental health specialists, and leading length” before being rejected. acknowledged that public reaction might corrections professionals. sometimes be relevant in setting sentences. Authorized probation sentences. In the In language creating a presumption against In retrospect, it is almost startling how much first proposed draft, judges were authorized imprisonment and for probation in every case, attention in the Model Penal Code was given to to sentence any person to probation when the the final draft included a new provision: “A the perceived need to accommodate offenders’ “deems that his imprisonment is unnec- lesser sentence will depreciate the seriousness treatment needs and prospects and how little essary for protection of the public.” The com- of the defendant’s crime.” It was among the attention was given to notions of “deserved mentary explains that the draft language “is reasons for disregarding the presumption and ,” “just deserts,” or public opin- based upon the view that suspension of sen- ordering a term of imprisonment. A similar ion. The Code’s principal sentencing, parole tence or probation may be appropriate dispo- provision about the seriousness of the crime release, and good time provisions, set forth sitions on of any offense” (emphasis was added to a list of considerations that in the following sections, reflect this.3 added) unless a mandatory sentence of death might justify disregarding the presumption or life imprisonment is prescribed. that prisoners would be released when first Purpose of sentencing. The first official eligible for parole. draft of the Code lists eight “general purposes Reconsideration of sentences. The first of the provisions governing the sentencing proposed draft made every prison sentence David Rothman, the leading historian of and treatment of the offender.” The first three “tentative” for the first year and authorized American corrections institutions, explains are: “To prevent the commission of offenses; the corrections commissioner to petition for that indeterminate sentencing policies, as To promote the correction and rehabilitation resentencing. The commentary explains why: they developed from the mid-19th century of offenders; To safeguard offenders against Judges have limited opportunity to study the onward, and the underlying beliefs leading excessive, disproportionate or arbitrary pun- offender, and corrections officials may later to their adoption, were based on two widely ishment.” Nowhere is mention made of decide that the judge “proceeded on the basis held views. First: “imposing deserved punishment,” “acknowl- of misapprehension as to the history, charac- edging the seriousness of the crime,” “express- ter, or physical or mental condition of the An environmental interpretation of ing public outrage,” or anything similar. defendant.” crime made a mockery of personal culpability. No one who was raised in a Authorized prison sentences. The first Good time. Prisoners were to receive 6 days’ slum could be held strictly accountable proposed draft of the Code divided all good time for each month served on good for his actions. The wretchedness of the felonies into three classes, with the following behavior, and corrections officials could social setting was so great that responsi- authorized minimum and maximum prison award another 6 days per month for “espe- bility could not be assigned in uniform sentences: cially meritorious behavior or exceptional and predictable fashion. Elemental fair- performance of his duties,” according to the ■ First degree: minimum 1 to 20 years; ness dictated that the offender be treat- Code’s first proposed draft. The good time maximum life imprisonment. ed as an individual. It was not merely a credits would apply to (and thus advance) sensible and effective principle, but a just ■ Second degree: minimum 1 to 3 years; both the minimum term before parole release one. Any other method was vengeful.4 maximum 10 years. eligibility and the maximum term before ■ Third degree: minimum 1 to 2 years; mandatory release. Second, Rothman notes, beginning in the maximum 5 years. 1920s and 1930s, psychological explanations Parole release. The first official draft made of criminality began to be embraced. Both Supporting commentary explains that “it is prisoners eligible for parole release on com- these beliefs—the environmental and the psy- desirable that the court play a substantial role pletion of their minimum sentences less any chological—lent themselves to individualized in sentencing, with authority not only to deter- applicable good time and created a presump- sentencing and corrections policies, since their mine whether the defendant should be sen- tion that prisoners would be released when treatment implications depended on the par- they first become eligible. Sentencing & Corrections 5

ticular environmental conditions or psycho- among cases; and that dispositions are most control risks to the public, and aid in offend- logical problems affecting individual offenders. likely to be just and appropriate when they er reform. The satisfaction, professional are tailored to the nature of the crime, its self-esteem, and effectiveness of corrections Rothman reports that life seldom comported effects on the victim, and the characteristics officials are probably enhanced as a result. with theory and that treatment programs were of the offender. seldom as available, generous, or effective Insulation from public emotion. Indeter- as rhetoric suggested they should have been. Rehabilitation as a goal. Indeterminate minate sentencing removes the important He also suggests—as the title of his book, sentencing views human beings as malleable decisions about individual offenders from Conscience and Convenience, reveals—that and redeemable and, accordingly, allows public attention. (or arraignments and the administrative convenience and autonomy maximum scope for efforts to that indeterminate sentencing granted judges provide services to offenders and corrections officials (“Convenience”) was and to expose them to oppor- indeterminate sentencing views human as important a source of its endurance and tunities for self-improvement beings as malleable and redeemable. widespread support as were the humane and advancement. Recognizing principles (“Conscience”) on which it was rehabilitation as a goal aids nominally premised. institutional managers because it justifies pub- guilty pleas) take place in public and can easily lic investment in a wide range of programs be reported in the mass media, but decisions By the mid-1970s, many of the rationales and and services that help keep prisoners active about parole release and good time are made practices of indeterminate sentencing began to and maintain and staff morale. in settings where public attention is much less be challenged. Civil rights and prisoners’ rights likely to be focused. Especially for notorious activists claimed that broad discretion pro- Public safety as a goal. Indeterminate sen- crimes or for behaviors temporarily receiving duced arbitrary and capricious decisions and tencing allows judges and corrections officials heightened attention, this enables judges to that racial and other invidious biases influ- routinely to take public safety considerations announce sentences that appear to be harsh enced officials.5 Research findings cast doubt into account when making decisions about when public passions are aroused but allows on the effectiveness of rehabilitative treatment individual offenders. Decisions about parole parole and corrections officials later on to - programs.6 Proceduralists urged that broad, release can take account of offenders’ risk tune sentences after these passions have abated. standardless discretion denied constitutional profiles, and decisions about probation con- due process.7 Conservatives argued that broad ditions, supervision, and revocations can be Administrative efficiency. Indeterminate discretion permitted undue leniency and fine-tuned to the particular risks individual sentencing allows corrections managers to undermined the deterrent effects of .8 offenders present and the temptations they face. deal with problems of overcrowding or with Others argued that a system that did not tailor changes in resource allocation by adjusting punishment to culpability was unjust.9 Delegation of authority. Indeterminate sen- policies governing award of good time, setting tencing places decisionmaking authority in of parole release dates, or releasing offenders Positive attributes the hands of officials who are in direct con- on furloughs or to intermittent or partial Indeterminate sentencing must have proper- tact with the offender and his or her circum- confinement. ties that are valued. Why else has it survived stances. This parallels developments in the in so many places? What is considered “posi- private sector, where in recent years shifting Disadvantages tive,” however, inevitably varies with the identity authority downward—as close to the cus- What is negative is also in the mind of the of the evaluator. A number of claims (some of tomer as possible—has commonly come to observer, so the criticisms of indeterminate them inconsistent with others) can be made be seen as desirable. The closer decision- sentencing, like the positive values attributed in favor of indeterminate sentencing, although making is to individual customers (or prison- to it, are sometimes inconsistent. no single individual is likely to subscribe to ers), the less likely it is that decisions will be all of them. based on inaccurate or incomplete informa- Disparities. A principal criticism of indeter- tion or stereotypes. minate sentencing is that it too often results in Sentencing as a human process. Indeter- stark differences in sentences for people who minate sentencing acknowledges that every Professionalization. Indeterminate sentencing have committed similar crimes, and these human being is a unique bundle of attributes assumes that judges and corrections officials disparities often result more from differences and experiences; that rigid policies often can- have specialized knowledge and experience in the values, beliefs, and personalities of the not take into account meaningful differences that can be used to design effective programs, judges or parole board members than from 6 Sentencing & Corrections

differences among offenders.10 Proponents of assessments. The “deserved punishment” include, notably, the focus of indeterminate indeterminate sentencing might respond that criticism holds that people should receive sentencing on the offender as a unique indi- while it is undesirable that different sentences particular punishments and that anything less, vidual, the administrative flexibility it provides result from caprice or idiosyncrasy, there is in the Model Penal Code’s phrase, “depreci- managers, and its relatively light focus on dis- nothing inherently wrong if offenders convict- ates the seriousness of the crime.” Put more parities measured solely in terms of crimes ed of the same crimes receive different sen- colloquially, a “coddling criminals” complaint and criminal histories. These qualities make tences when this is justified by their respective has regularly been lodged against indetermi- indeterminate sentencing potentially more risk profiles or treatment needs. nate sentencing since its beginnings. reconcilable with community/restorative sentencing and risk-based sentencing than is Bias and stereotypes. A second recurring Public sentiment. Some critics contend that structured sentencing, with its emphases on criticism is that the broad discretion accord- indeterminate sentencing allows the “behind- detailed rules, “certain” punishments, and ed judges and corrections officials gives too closed-doors” decisions of judges and others public accountability. to frustrate realization of the public’s (or elected officials’) ■ ■ ■ a “coddling criminals” complaint has views. This criticism is the con- regularly been lodged against indeter- Comprehensive minate sentencing since its beginnings. verse of the “positive” attribute discussed above—that indeter- structured sentencing minate sentencing insulates or much of the past two decades, it decisions about individuals’ Fappeared that structured sentencing much rein to their conscious biases or lives from the influence of short-lived would gradually replace indeterminate sen- unconscious stereotyping. Offenders whose passions and political pressures. tencing, but this now looks less likely. Although lives and backgrounds are far removed from these sentencing guidelines systems can achieve Treatment effectiveness. No list like this officials’ personal knowledge and experience many of their creators’ goals, they cannot eas- one would be complete without mention of might receive less empathy and understanding ily encompass newer goals, especially those of the widely adopted “nothing works” point of than those with whom officials have more in community/restorative and risk-based view. In retrospect it is clear that such claims common. sentencing. were often overblown, and that subsequent Inadequate implementation. Some critics research justified greater optimism about Structured sentencing has developed incre- argue that corrections systems seldom if ever the effectiveness of some kinds of treatments mentally, beginning with unsuccessful pilot carry through on the implied promises of inde- for some kinds of offenders. Nonetheless, if projects to develop voluntary sentencing terminate sentencing. Vocational training is “tailoring sentences to offenders’ rehabilitative guidelines. They were typically developed by often not relevant to the job market. Psychiatric, needs” was traditionally a major rationale for academic consultants supported by Federal psychological, and medical services often are indeterminate sentencing, the widely shared grants, working under the general oversight of low quality. Funds are seldom sufficient to perception that treatment was seldom effec- of committees of judges.11 Their goal was to provide a rich array of services tailored to tive presented a major challenge. document the main tendencies in past sen- offenders’ needs in prison or in the commu- tencing patterns and to restate those patterns nity. During the height of indeterminate sen- Compatibility with community/ restorative sentencing in nonbinding guidelines. The rationale was tencing, many American prisons were squalid, that judges are protective of their sentencing To many people today, some of the “positive brutal places. discretion and will oppose creation of binding features” of indeterminate sentencing have guidelines and resist any that are developed, but Deserved punishments. An additional criti- an antiquated quality, while many of the they might be influenced by voluntary guidelines cism is that indeterminate sentencing severs “criticisms” represent influential contempo- developed under judicial oversight. This ration- the link between seriousness of crime and rary ideas. Thus it is strange that a majority of ale was undermined by evaluation research severity of punishment. This is not quite the the States still have sentencing and corrections that revealed that voluntary guidelines had no same criticism as the one leveled at dispari- systems that can fairly be described as inde- discernible effects on sentencing patterns. ties, since severity of offense is only one way terminate. Possible reasons for retaining these in which sentences can be disparate (or com- systems—inertia, hypocrisy, managers’ self- Between 1975 and 1985, voluntary guidelines parable). For example, disparities might be interest—were mentioned earlier. However, were developed in many States, usually at measured in terms of treatment needs or risk other qualities may also be important. These Sentencing & Corrections 7

county- or judicial-district levels but some- Washington and Oregon, other early pre- If Minnesota was the exemplar of structured times at State levels (for example, Maryland, sumptive guidelines States); Pennsylvania, sentencing as it existed in 1980, North Carolina Delaware, Utah, Florida, Massachusetts, New North Carolina, and the Federal system cov- is the exemplar in the late 1990s. Although not Jersey, Michigan, and Wisconsin). A few States ered misdemeanors as well. all guidelines States have presumptive guide- (for example, Virginia, Arkansas, and Missouri) lines, most features of the evolved approach ■ Prisons and jails. Minnesota set standards adopted them as late as the 1990s. Most of are being emulated: using projection models for sentences to confinement in State prisons the local-level guidelines and many of the to link sentencing policy with corrections only; Pennsylvania, Oregon, the Federal system, original State-level guidelines were long ago resources; setting standards for prison, jail, and North Carolina set standards for jail sen- abandoned. and nonconfinement sentences; and promot- tences as well. ing creation of local community corrections The next step was State-level presumptive ■ Confinement and nonconfinement programs and State funding to pay for them. guidelines, so called because they are based sentences. Minnesota, Washington, Oregon, on the presumption that cases should be han- and the Federal system (and, initially, Strengths dled in accordance with applicable guideline Pennsylvania) set no standards for noncon- The success of structured sentencing is partly ranges. Under such systems, judges can impose finement sentences; more recently, North due to the fact that it has served the different other sentences but are required to cite their Carolina, Pennsylvania (in 1994), and Ohio policy goals of the 1970s and the 1990s. In reasons for doing so, and parties to the case established standards for nonconfinement Minnesota, Washington, and Oregon, the pri- can appeal the adequacy of these reasons in guidelines. Other States in the process of mary 1970s goals were to reduce sentencing high courts. Minnesota led the way with a developing guidelines (Massachusetts, for disparities and the possibility of gender or three-part strategy consisting of creation of a example) are following suit. racial bias, and to achieve a form of “truth in permanent sentencing commission, promul- policymaking” by tying sentencing policies to ■ Community corrections funding. gation by the commission of presumptive corrections spending policies. In most of the Recognizing that guidelines for nonconfine- guidelines, and establishment of appellate early guidelines States (Pennsylvania being ment sentences are unlikely to be followed sentence review to ensure that judges or effective unless there are departed from guidelines only in appropriate credible programs to receive cases. The initial guidelines that took effect in offenders, North Carolina cou- the success of structured sentencing 1980 set presumptive standards for prison pled development of guidelines is partly due to the fact that it has sentences received for committing felonies. with enactment of a communi- served the different policy goals of the 1970s and the 1990s. ty corrections act that appro- The Minnesota presumptive guidelines achieved priated money to be distributed their primary goals: Judges followed them in to counties to establish and a large majority of cases; sentencing dispari- an exception), increasing sentencing severity operate county-level corrections programs. ties were reduced in general and in relation or reducing crime rates were not seen as Pennsylvania followed suit when it revised its to race, gender, and geographic area; and primary goals. guidelines in 1994. Ohio did likewise, and appellate courts developed case-law standards new sentencing commissions appear to view for the allowable scope of and grounds for By contrast, many of the newer guidelines community corrections funding as an essen- departures. What is more, a policy decision systems were developed with just such aims. tial accompaniment of their proposals. tying sentencing standards to available prison Voluntary guidelines in Virginia, for example, capacity was made, thereby making Minnesota ■ Legal force. Minnesota’s guidelines were are expressly based on the premise of incapac- one of a handful of States to escape severe presumptive. Although most of the guidelines itation as a goal and attempt to incorporate prison overcrowding in the 1980s.12 developed later (Pennsylvania, Washington, research findings on selective incapacitation Oregon, Kansas, Ohio) were also presump- and criminal careers. Such guidelines provide Since these initial guidelines took effect, the tive, North Carolina and the Federal sentenc- a mechanism for enhancing the likelihood evolution of structured sentencing has con- ing commission made their guidelines even that judges will impose harsher sentences, sisted of subsequent steps that one by one more restrictive. Each adopted “mandatory” and tying policy to corrections capacity is fleshed out the Minnesota approach: guidelines (an oxymoron?) and attempted to a way to manage the fiscal consequences of ■ Felonies and misdemeanors. Minnesota prevent judges from imposing sentences other the new policies. The from North created guidelines for felonies only (as did than as guidelines prescribed. Carolina is that guidelines appear to be suc- cessful at achieving these 1990s goals. 8 Sentencing & Corrections

Whether they reflect the goals of the 1970s or Provide impetus for community correc- voluntary guidelines systems that few believe 1990s, well-designed and implemented struc- tions funding. Guidelines provide a politically significantly constrain judges’ decisions in tured sentencing systems arguably possess the credible basis for proposals for State funding individual cases. Even the current bellwether following strengths: of local corrections programs. Since probation States of North Carolina, Pennsylvania, and and other community-based programs have Ohio have not succeeded in catalyzing the Set and change sentencing policies. long been notoriously underfunded and typi- development and funding of sufficiently ample Guidelines enable policymakers to establish cally are the first target of budget cuts and community corrections programs, and none and change sentencing policies. Of course, reallocations, guidelines have the effect of has so far managed to devise policies governing no policy is ever implemented exactly as its enhancing the funding, scope, and program- choices among intermediate or community authors intended. Practitioners often resist matic richness of community corrections. punishments. new policies they disagree with and, to vary- The North Carolina, Pennsylvania, and Ohio ing degrees, manipulate and circumvent them. sentencing commissions have all achieved Dehumanization. The second criticism of Nonetheless, at least in the 1980s and 1990s, conspicuous success at using structured sen- structured sentencing is more basic: that sen- having structured sentencing systems has tencing to leverage increased State investment. tencing until recently was and in the future enabled jurisdictions to successfully alter sen- should be a “human process,” and that much tencing patterns. In North Carolina, for exam- Other arguments can be made for structured structured sentencing flies in the face of that ple, the goals were to increase the likelihood sentencing. The sentencing commissions have vision. Nearly every nonpartisan expert body that many serious offenders would receive created institutional capacities, previously that has considered the desirability of manda- prison sentences and to lengthen their prison lacking in many States, for projecting the tory sentencing laws has urged either their terms. Both goals were achieved the first year, effects of proposed changes in sentencing rejection or their limitation to a tiny fraction with 100 percent of those convicted of the policy. In a number of States, the commis- of the most serious cases. Yet every State target crimes going to prison. Another North sions are regularly called on to perform that adopted mandatory minimum sentencing laws Carolina goal was to free up needed prison service. Similarly, the commissions have cre- in the 1980s and 1990s, and both the Federal beds by diverting people convicted of less ated a cadre of State sentencing policy experts and North Carolina guidelines are described serious offenses to intermediate and commu- where none existed before. by their developers as “mandatory”; judges nity punishments. This goal too was met, and must impose the mandatory sentence whether the percentage of nonviolent offenders sen- Disadvantages or not on the facts of a particular case it tenced to State prisons plummeted. Criticisms of structured sentencing are based appears just or called for. Many judges have on two concerns: that it has insufficiently real- long opposed guidelines and mandatory sen- Project and regulate prison space needs. ized its potential and that current initiatives tencing laws because their rigidity can result Guidelines enable policymakers to make need to be extended and perfected; and that in injustices in individual cases. As structured responsible decisions about construction, it has gone too far and made sentencing too sentencing becomes more comprehensive, operation, and financing of prisons. Experi- impersonal and mechanical. these problems will steadily worsen. ence in the 1980s with the Minnesota, Washington, and Oregon guidelines showed Unfulfilled promise. If it were clear that cur- Worries that “capacity constraints” can work, and the rent trends toward comprehensive structured Comprehensive structured sentencing raises North Carolina experience with more com- sentencing were desirable, a number of as-yet- worrisome issues about the roles of correc- plete and comprehensive guidelines in the incomplete tasks could be identified for this tions officials, the scope for incorporating 1990s confirms this. Recent projections show system. Because a kind of inertia sets in after key elements of community/restorative and that North Carolina prisons will operate below a State makes major changes in sentencing risk-based sentencing, the politicization of capacity through 2007. laws, many States have sentencing systems sentencing policy, and the quality of justice that are locked, like flies in amber, at an delivered to criminal defendants. Reduce sentencing disparities. Guidelines earlier developmental stage. Minnesota, enable policymakers to reduce the extent of Washington, and Oregon, for example, after Diminishing corrections officials’ roles. unwarranted racial, ethnic, gender, and geo- years of trying to create guidelines for inter- The implications of structured sentencing are graphical disparities in sentencing. mediate punishments (and in Oregon, guide- different for officials who operate prisons and lines for misdemeanors), failed to do so. those who operate probation agencies and Other States (Maryland, for example) retain community programs. Prison managers could Sentencing & Corrections 9

become little more than operators of human street-level drug trafficking. Such people are, reduce authorized sentencing criteria solely warehouses. As structured sentencing coupled in many jurisdictions, supposed under pre- to the offender’s crime and to some measure with truth-in-sentencing and its “85 percent” sumptive or mandatory guide- rule becomes more pervasive, many prison lines to be sent to prison for a reduction of sentencing standards to managers may find that: fixed term. If judges and pros- simple numerical formulas may provide ecutors comply with the guide- an irresistible temptation to adopt sym- ■ They lack the resources needed to operate lines, offenders for whom bolic policies in pursuit of short-term meaningful rehabilitative and other programs enrollment in these programs political goals. inside the facility. is appropriate will be sent to ■ They have lost the discretion to furlough prison. As a consequence, prisoners or release them to halfway houses program development will be stunted. of his or her criminal history; mandatory sen- or to other forms of intermittent or partial tencing laws typically base sentences only on If judges and prosecutors ignore or circum- confinement including house arrest. the offender’s crime, thereby reducing sen- vent applicable guidelines, there will be tencing criteria to one or two dimensions. Yet American corrections since the founding of increased risks that: human beings—offenders, judges, and prose- the American Correctional Association has cutors alike—are multidimensional creatures, ■ The justice system will lose credibility. always encompassed commitments to help and thus considerations other than simply the offenders learn how to live satisfying, law- ■ Arbitrary and idiosyncratic decisions will be crime and the criminal history are often rele- abiding lives. But current sentencing trends made to divert certain offenders and not others. vant to determining the most appropriate dis- threaten to impoverish the functions and the position in a particular case. To the extent that ■ Decisions will be made on the bases of vision of correctional managers and make structured sentencing prevents judges and conscious bias or unconscious stereotypes. American prisons uniquely bleak and inhu- lawyers from doing what is just, the overriding purpose of the justice system is undermined. mane places. Continued politicization. Reduction of sen- tencing standards to simple numerical formu- Managers who work with probation and com- ■ ■ ■ las may provide an irresistible temptation to munity penalties will face the challenge of adopt symbolic policies in pursuit of short-term The other conceptions of finding the funding and the political authority political goals. As Franklin Zimring observed to create and operate value-adding programs. sentencing and corrections in the early days of determinate sentencing, There is, of course, a possibility that the status if sentencing standards can be expressed as n some respects this document may be mis- and authority of community corrections man- numbers written on a blackboard, all that is Ileading. It begins by suggesting that there agers will be enhanced if structured sentenc- needed to change them is an eraser and the are four contending conceptions of sentencing ing expands, but, if past experience is any political will.13 This is essentially what hap- and corrections and emphasizes the diversity guide, they will find it difficult to obtain new pened repeatedly in California since enactment of American approaches to sentencing and funds and retain old funds in the next eco- in 1976 of the Uniform Determinate Sentencing corrections, but it focuses on only two of the nomic downturn. Even in the expanding econ- Law. It happened even in liberal Minnesota four—indeterminate and structured sentenc- omy of the mid-to-late 1990s, community where, in 1990—with one stroke—the ing—elaborating the contrasts between them. corrections managers have nowhere obtained presumptive lengths of all prison sentences Most likely, diversity is the more important adequate funding to operate the programs were doubled. Reasonable people can differ characteristic. Other documents in this series that are needed. about the appropriateness of particular sen- of publications from the Executive Sessions on Sentencing and Corrections focus on the Constraints on development of programs. tencing standards, but a process that facilitates impulsive changes is unlikely over time to other conceptions—community/restorative Many newly developing community, restorative, 14 produce good policies. and risk-based sentencing. and rehabilitative programs (including drug courts, drug treatment programs, and sex Diminution in the quality of justice. A How sentencing and corrections in the United offender treatment programs) are beginning fourth worry is a corollary of those discussed States will evolve remains to be seen. The next to target more serious categories of offenders. above and reiterates the recurring criticisms 25 years are likely to witness at least as much These can include people charged with by judges and others of determinate and change as have the past 25. assaults, sex crimes, minor robberies, and structured sentencing. Guidelines typically 10 Sentencing & Corrections

Notes New York: Basic, 1975; and Wilson, James Q., Michael Tonry, Sonosky Professor of Law and Public Thinking about Crime, New York: Basic, 1975. 1. Bureau of Justice Assistance, 1996 Survey of Policy at the University of Minnesota Law School, is State Sentencing Structures, BJA Monograph, 9. Morris, Norval, The Future of Imprisonment, the organizer and director of the Executive Sessions Washington, DC: U.S. Department of Justice, Chicago: University of Chicago Press, 1974; and on Sentencing and Corrections. September 1998, NCJ 169270. The figures Von Hirsch, Andrew, Doing Justice: The Choice of This study was supported by cooperative agreement reported are as of February 1996. Punishments, New York: Hill and Wang, 1976. 97–MUMU–K006 between the National Institute of 2. Bureau of Justice Assistance, National 10. Blumstein, Alfred, Jacqueline Cohen, Susan E. Justice and the University of Minnesota. Assessment of Structured Sentencing, BJA Martin, and Michael Tonry, eds., Research on Findings and conclusions of the research reported Monograph, Washington, DC: U.S. Department of Sentencing: The Search for Reform, Washington, here are those of the author and do not necessarily Justice, February 1996, NCJ 153853. The figures DC: National Academy Press, 1983. reflect the official position or policies of the U.S. reported are as of 1994. 11. Gottfredson, Don M., Leslie T. Wilkins, and Department of Justice. 3. Model Penal Code (Tentative Draft No. 2), Peter B. Hoffman, Guidelines for Parole and Philadelphia: American Law Institute, 1954; Sentencing, Lexington, MA: Lexington Books, 1978. The National Institute of Justice is a component Model Penal Code (Tentative Draft No. 5), of the Office of Justice Programs, which also 12. Knapp, Kay A., The Impact of the Minnesota Philadelphia: American Law Institute, 1956; includes the Bureau of Justice Assistance, the Sentencing Guidelines: Three-Year Evaluation, Model Penal Code (Proposed Final Draft No. 1), Bureau of Justice Statistics, the Office of Juvenile St. Paul, MN: Minnesota Sentencing Guidelines Philadelphia: American Law Institute, 1961. Justice and Delinquency Prevention, and the Commission, 1984. Office for Victims of Crime. 4. Rothman, David J., Conscience and 13. Zimring, Franklin, E., “Making the Punishment Convenience: The Asylum and Its Alternatives This and other NIJ publications can be found Fit the Crime: A Consumer’s Guide to Sentencing in Progressive America, Boston: Little, Brown, at and downloaded from the NIJ Web site Reform,” Hastings Center Report 6 (1976): 13–21. 1980: 553–554. (http://www.ojp.usdoj.gov/nij). 14. These documents are, respectively, 5. American Friends Service Committee, Struggle NCJ 175722 Incorporating Restorative and Community for Justice: A Report on Crime and Punishment Justice Into American Sentencing and in America, New York: Hill and Wang, 1971. Corrections, by Leena Kurki, Research in Brief— An overview of the current state of sentencing and 6. Martinson, Robert, “What Works?—Questions Sentencing & Corrections: Issues for the 21st corrections in the United States is presented in and Answers About ,” Public Century, Washington, DC: U.S. Department of the first paper in this series, Fragmentation of Interest 35 (2) (1974): 22–54. Justice, National Institute of Justice/Corrections Sentencing and Corrections in America, by Program Office, September 1999, NCJ 175723; Michael Tonry, Research in Brief—Sentencing 7. Davis, Kenneth Culp, Discretionary Justice: A and Reforming Sentencing and Corrections for & Corrections: Issues for the 21st Century, Preliminary Inquiry, Baton Rouge, LA: Louisiana Just Punishment and Public Safety, by Michael Washington, DC: U.S. Department of Justice, State University Press, 1969; and Frankel, Marvin E. Smith and Walter J. Dickey, Research in Brief— National Institute of Justice/Corrections Program E., Criminal Sentences: Law Without Order, Sentencing & Corrections: Issues for the 21st Office, September 1999, NCJ 175721. New York: Hill and Wang, 1972. Century, Washington, DC: U.S. Department of 8. Van den Haag, Ernest, Punishing Criminals: Justice, National Institute of Justice/Corrections Concerning a Very Old and Painful Question, Program Office, September 1999, NCJ 175724. Sentencing & Corrections 11

The Executive Sessions on Sentencing and Corrections Convened the following distinguished panel of leaders in the fields:

Ronald Angelone John Gorczyk Dennis Maloney Thomas W. Ross Director Commissioner Director Superior Court Judge, Department of Corrections Department of Corrections Deschutes County (Oregon) 18th Judicial District Commonwealth of Virginia State of Vermont Department of Community Justice Chair, North Carolina Sentencing and Policy Advisory Commission Neal Bryant Kathleen Hawk Sawyer Larry Meachum Senator Director Director Dora Schriro Oregon State Senate Federal Bureau of Prisons Corrections Program Office Director U.S. Department of Justice Office of Justice Programs Department of Corrections Harold Clarke U.S. Department of Justice State of Missouri Director Sally T. Hillsman Department of Correctional Services Deputy Director Mark H. Moore Michael Smith State of Nevada National Institute of Justice Guggenheim Professor of Criminal Professor of Law U.S. Department of Justice Justice Policy and Management University of Wisconsin Cheryl Crawford John F. Kennedy School of Government Deputy Director, Program Martin Horn Harvard University Michael Sullivan Development Division Secretary Secretary National Institute of Justice Department of Corrections Norval Morris Department of Corrections U.S. Department of Justice Commonwealth of Pennsylvania Emeritus Professor of Law and State of Wisconsin Barbara Damchik-Dykes Susan M. Hunter University of Chicago Morris Thigpen Project Coordinator Chief, Prisons Division Director Executive Sessions on Sentencing National Institute of Corrections Joan Petersilia National Institute of Corrections and Corrections U.S. Department of Justice Professor of Criminology, U.S. Department of Justice Law and Society Walter Dickey Michael Jacobson School of Social Ecology Michael Tonry Evjue-Bascom Professor of Law Professor of Law and Science University of California, Irvine Sonosky Professor of University of Wisconsin John Jay College of Criminal Justice Law and Public Policy City University of New York Kay Pranis University of Minnesota Ronald Earle Planner Project Director District Attorney Leena Kurki Department of Corrections Executive Sessions on Sentencing Austin, Texas Research Associate State of Minnesota and Corrections Law School Tony Fabelo University of Minnesota Michael Quinlan Jeremy Travis Director Project Associate Former Director Director Texas Criminal Justice Policy Council Executive Sessions on Sentencing and Federal Bureau of Prisons National Institute of Justice Corrections U.S. Department of Justice U.S. Department of Justice Richard S. Gebelein Superior Court Judge John Larivee Chase Riveland Reginald A. Wilkinson Wilmington, Delaware Chief Executive Officer Principal Director Crime and Justice Foundation Riveland Associates Department of Rehabilitation and Correction Joe Lehman State of Ohio Secretary Department of Corrections State of Washington