Sentencing Law and Policy

A complete set of links to Smart Sentencing from the Missouri Sentencing Advisory Commission

I received this afternoon this helpful e-mail with links to some documents that should be useful for all sentencing fans:

The Missouri Sentencing Advisory Commission presents the latest in statistics, information, research findings and evidenced-based practice to help make informed decisions about how to punish criminal behavior.  The Commission launched Smart Sentencing, a periodic bulletin to keep judges, prosecutors, defense attorneys, probation officers and others concerned about sentencing issues current as to the latest information related to sentencing practices and their impacts...

The information in these bulletins is important and, we hope, useful.  We are grateful to the research staffs of the Department of Corrections and David Oldfield, its director of research, and the Office of State Courts Administrator and Anne Janku, its research director, for compiling the statistics and writing these bulletins, and to Beth Riggert, communications counsel of the Supreme Court, for editing assistance.  Here are the bulletins issued thus far:

• No. 1. THE U.S. PRISON POPULATION AT ALL TIME HIGH

• No. 2. PATTERNS OF GROWTH IN MISSOURI'S INCARCERATED POPULATION

• No. 3. PROBATION WORKS FOR NONVIOLENT OFFENDERS

• No. 4. DRUG TREATMENT CAN REDUCE RECIDIVISM

• No. 5. RECIDIVISM IN JUVENILE COURTS: MATCHING RISK LEVELS AND OFFENSE SEVERITY TO SANCTIONS

"Were hundreds of criminals given the wrong sentences because lawyers messed up a basic work sheet?"

The title of this post is the sub-heading of this remarkable new Slate piece by Ray Fisman to which a helpful reader pointed me.  Here is the start of today's must-read piece:

In early 2005, Emily Owens was halfway through her Ph.D. thesis in economics at the University of Maryland.  Her topic: the deterrence effect of long prison sentences.  She had just received data from the Maryland State Commission on Criminal Sentencing Policy on tens of thousands of cases that had appeared in the state's courts over the previous years, cases she hoped would help her close out her dissertation.  But as she started working through the numbers, she came across thousands of inconsistencies and errors in the sentencing recommendations provided to judges by the commission.  The errors ultimately translated into extra months and years of prison time for unlucky convicts and light sentences for lucky ones.  What might have been a run of the mill economic analysis of crime and punishment turned into a shocking account of human error.

The particulars of this story are best understood by reading the full Slate piece.  But this concluding paragraph to the piece will likely resonate for lots of folks outside of the Old Line State:

One lesson from the case of Maryland's work sheet errors is that multiple levels of evaluation helped to undo some of the damage (though you might not see it that way if you spent an extra couple of months in the slammer because your attorney can't do arithmetic).  It's a crucial insight given that states around the country have limited or abolished the discretion of parole boards as a result of Truth in Sentencing laws.  More generally, crime and punishment in America remains rife with prejudice and inconsistencies.  The poor and uneducated are convicted at rates disproportionate to their crimes; jurists and judges alike are biased and sometimes outright irrational.  Keeping some checks and balances in place — like the moderating effects of parole boards — might help to keep the justice system a little more just.

New report on mandatory minimum sentences from Pennsylvania Commission on Sentencing

The Pennsylvania Commission on Sentencing late last week released this important research report, which is titled "A Study on the Use and Impact of Mandatory Minimum Sentences."  The study was undertaken at the direction of the state legislature, and it examined 1) the extent to which mandatory sentences are imposed, 2) the processing of mandatory sentencing cases, and 3) the effectiveness of mandatory sentencing with respect to crime reduction.

This local press article, which is headlined "State commission says drug-free school zone law should be repealed," reports on some of the highlights:

In a 490-page report Friday, the Pennsylvania Commission on Sentencing recommended the repeal of the drug-free zone law that prosecutors invoked against Range. The report also advocated raising the threshold of cocaine needed to trigger enhanced penalties for trafficking -- from 2 to 5 grams -- and allowing more drug cases to go through intermediate punishment or boot-camp programs.

The recommendations, part of an overall study of mandatory minimums in the state, offer a change from the mid-1990s, when many of the beefed-up laws were enacted amid a popular mantra of get-tough-on-crime.

Critics say the laws are clogging prisons, breaking state budgets and failing to address the problems they aim to, prompting legislatures to reconsider the wisdom of warehousing offenders when studies show treatment is cheaper and produces less recidivism.

"This year in the budget process was the first year I've heard some serious discussion of the cost, and 'Let's look at those issues,'" said Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing, which advises the state on sentencing policy. "It's a rare time when I actually think there can be some progress moving forward with these recommendations."

But that may not prove to be the case, because school zones and other heightened penalties are popular among prosecutors and law enforcement officials.

Northampton County District Attorney John Morganelli is a supporter of the state's mandatory minimums, though he believes that more aren't needed. He said the minimums are a useful plea bargaining tool, because prosecutors can trade them for an admission of guilt. He said the goals of school zones are laudable. "It would be a mistake [to repeal them]," Morganelli said. "It would send a bad message that it's OK to deal drugs in school zones."

U.S. Rep. Charlie Dent, R-Lehigh, wrote Pennsylvania's school zone law in 1997 while serving in the state Legislature. He says it has helped keep drugs away from children. "The real issue is if these people were not in prison and on the streets, what would crime be then?" Dent asked.

The commission's report found school zones are "overbroad" and go beyond the goal of preventing drugs from being dealt to children. It also says the 1,000-feet parameter is problematic in dense urban areas and disproportionately affects minorities.

If you build good guidelines, judges will follow

The title of this post seems to be the message of this local article discussing data on how frequently state judges in Pennsylvania sentence within applicable state sentencing guidelines.  Here are some of the details from an interesting (and all-too-rare) press discussion of state sentencing patterns:

There were 101,576 criminal sentences handed down in Pennsylvania courtrooms in 2008, and 1,530 of them were imposed by judges in the four Valley courts, according to the Pennsylvania Commission on Sentencing’s annual report.

Statewide, about 90 percent of the sentences meted out to convicted offenders conformed with the guidelines and 5 percent were shorter than suggested by the guidelines. In the Valley, the rate ranged from 92 percent conformity in Northumberland County to 98 percent in Montour County.

Judge William H. Wiest, one of three judges in Northumberland County, said he follows the state’s recommendations almost all the time because “they are well thought out, fair and reasonable.” Wiest said he’d like to see the guidelines broadened to allow judges the option of meting out harsher sentences.

After 11 years on the bench, he’d like to see the state increase its recommended sentencing for first-time drug sale offenders from a maximum of three months in jail to a maximum of seven months and allow more leeway in sentencing convicted drunken drivers. “I’d like a greater range of discretion,” he said....

Martin Wilson, assistant district attorney in Union County, said the creation of statewide sentencing guidelines helped level the playing field and ensured offenders in Philadelphia would face the same penalties as an offender who commits the same crime in the rural city of Sunbury. “They definitely served a valuable service in an effort to be consistent,” he said.

"Forum: Does California need a sentencing commission?"

The title of this post is the headline of this piece in the Sacramento Bee that sets up yes/no commentary answers from leading voices in the sentencing reform debate in California.  Here is the set up, followed by links to the dueling commentaries:

For years, California has been considering a commission to coordinate sentencing guidelines and fiscal policy, and to pull together state and local corrections programs into a coordinated system.  In 2007, the Senate and the Assembly passed bills for a sentencing commission.  But the Legislature couldn't agree on a final bill, so the effort died.

This year, the dynamic changed.  The Senate approved of a sentencing commission as part of a larger prison reform bill, with the support of Gov. Arnold Schwarzenegger.  But the Assembly removed the sentencing commission from its legislation.  The final prison reform bill that passed and was signed by the governor did not include a sentencing commission.

Sentencing commissions, which have been implemented in more than 20 states, serve to propose new or revised sentencing guidelines for judges and prioritize bed space in states that struggle with overcrowded prisons.

Opponents of sentencing commissions say it is an attempt to soften punishment for criminals; those in favor say California's sentencing policies aren't working because the state relies overwhelmingly on incarceration rather than rehabilitation.

• Yes: Other states have formed successful panels

• Yes: It works well in North Carolina

• No: Non-elected board could rewrite sentencing laws

• No: it's a recipe for more crime

Interesting empirical study of sentencing in Nevada

I just came across this paper on SSRN, titled "Felony Sentencing in Rural and Urban Courts: Comparing Formal Legal and Substantive Political Models in the West." Here is the abstract:

This study explored two models of sentencing in urban and rural districts in Nevada (2007 felony sentencing data, N=10,873).  It was hypothesized that sentence lengths and dispositions would differ between rural and urban districts.  Furthermore, it was hypothesized that urban districts would follow a formal legal model – in which only legal variables (crime features, criminal history) act as predictors of sentencing outcomes, whereas rural districts would follow a substantive political model – in which extralegal factors (age, sex, race / ethnicity, etc.) also predict sentencing outcomes.  The authors found that urban and rural districts in Nevada conformed to a substantive political model of sentencing (including both legal and extralegal factors), though legal factors were often the strongest predictors of sentencing outcomes.

I have long thought that a lot more could be learned from the careful study of modern state sentencing systems, and this helpful paper confirms my desire to see more researchers analyzing more state sentencing patterns.

Notable materials from the Missouri Sentencing Advisory Commission

Though I am usually able to keep up with most of the activities of the US Sentencing Commission (and most of the stuff posted on its website), I never have enough time to review (and praise) all the interesting and important work being done by many state sentencing commissions.  Fortunately, helpful readers sometimes alert me to some of this work appearing publicly on state commission websites.

For example, thanks to a helpful reader, now I can note (and praise) these materials recently added to the official website of the Missouri Sentencing Advisory Commission:

RECENTLY ADDED: Smart Sentencing Bulletins, Issue 1 and Issue 2 and the February 2009 and April 2009 Progress Report on Recommended Sentencing.

In addition to encouraging folks interested in state sentencing developments to check out all these goodies from the Missouri Sentencing Advisory Commission, I also encourage folks involved in state sentencing developments to keep alerting me to notable reports and materials.

A close look at Alabama's experiences with sentencing reform

In my view, there is clearly far too little scholarship on state sentencing systems (and probably too much on the federal sentencing system). It is thus exciting and refreshing to see this new piece on SSRN by Joseph Colquitt, titled "Can Alabama Handle the Truth (in Sentencing)?." Here is its abstract:

This Essay examines truth in sentencing, discusses its strengths and weaknesses, and analyzes what it will mean for Alabama.  The piece neither seeks to support or oppose the existing legislative mandate to adopt truth in sentencing in Alabama.  Rather, the Essay seeks to shed light on the issues, induce a healthy dialogue, and encourage the involved parties to garner a broad base of knowledge, carefully deliberate, properly design Alabama's truth-in-sentencing scheme, and ensure that the state has built the necessary infrastructure to support truth in sentencing.  Otherwise, adopting any truth-in-sentencing scheme would be imprudent. The Essay also examines Alabama past and present sentencing models and reports on the Sentencing Commission's voluntary sentencing guidelines presently used in the state as well as the challenges it faces in developing a truth-in-sentencing scheme in compliance the existing legislative mandate.

An Ohio example of how the prison economy budget can mix up the usual political rhetoric

In my own home state of Ohio, a very tight budget and a growing prison population have created a fascinating and dynamic set of political and practical conversations about state sentencing reform.  This local article today, headlined "Seitz offers plan for prison reform: Overcrowding strains budgets," details some of the on-going debate and reveals why we are not quite seeing politics as usual:

State Sen. Bill Seitz says sweeping prison reform is the only way to reduce overcrowding and ease strain on Ohio's incarceration budget.  The conservative Green Township Republican last week introduced Senate Bill 22, which would allow more minor offenders to be sentenced to community programs, give more good-time credit to inmates, give the parole authority the ability to deal with parole violators and create sentencing alternatives for parents convicted of failing to pay child support.

"While it is important that the Legislature continues to pass strong laws to help keep our communities safe, this effort must be balanced with policies that work to responsibly reduce Ohio's prison population and its financial impact on taxpayers across the state," Seitz said....

Hamilton County Prosecutor Joe Deters stopped short of criticizing a fellow Republican, but said the bill would compromise safety and if the budget needs relief, cuts should be made elsewhere. "The problem with any of these laws is they are entirely budget driven, and not safety driven," Deters said.

"Bill is one of the best legislators I have ever met, he is very smart and he is looking for ways to get money out of the budget, but he is looking in the wrong place," Deters said. "The first job of government is to protect its citizens, and a viable prison system is critical to community safety."

Seitz, who served nearly eight years in the Ohio house before moving to the Senate in 2007, said reform has been needed for years. But the budget crisis means the legislature has to act now, he said.

Seitz's bill mirrors proposals by the [Democratic] Strickland administration.  Gov. Ted Strickland's two-year budget, which must be passed by June 30, proposes spending $3.65 billion in fiscal years 2010 and 2011 to run prisons. Collins said there is about $10 million in the state budget for counties to fund community-correction programs, including halfway houses....

The Seitz bill varies slightly from Strickland's proposal, reducing earned credit to five days a month instead of seven. Violent offenders and sex offenders would not be eligible for good-time credits. "There are many things for Democrats and Republicans to fight about in this budget," Seitz said. "I hope this is not one of them."

Seitz said the reforms do not compromise safety. "We all want to increase the penalties for this and that," Seitz said. "And it might be warranted, but where is the money? The prison budget has been cut, cut, cut." Something has to give, he added....

Seitz said sentencing disparities for people convicted of crack cocaine versus powder cocaine crimes must be corrected, that judges need more authority over judicial release, and that inmates at the end of their sentences should transition into community-based correctional facilities....

Hearings could start as soon as next month, Seitz said. "Until people put their money where their mouth is on criminal sentences, there is no other choice," Seitz said.

Departure patterns as a guide to whether guidelines are balanced

This effective local article about judicial departure rates from Virginia's state sentencing guidelines provides a terrific reminder about what judicial decisions can tell us about balances (and imbalances) in an advisory sentencing system.  Here are some statistical snippets from the article:

According to the Virginia Criminal Sentencing Commission’s 2008 annual report, judges in the 16th Circuit sentenced criminals in felony cases within sentencing guidelines 76.9 percent of the time.  They strayed from sentencing guidelines for more serious consequences in 13.7 percent of 642 cases while opting for lighter sentences in 9.3 percent.

In fiscal 2007, 16th Circuit judges followed the guidelines for 80.6 percent of 568 total cases. The judges in the circuit ... chose more severe sentences 8.8 percent of the time and lighter sentences 10.6 percent of the time....

The most recent commission report also detailed statewide compliance to sentencing guidelines in certain crimes.  Judges across Virginia stuck to sentencing guidelines 63.4 percent of the time in 232 total homicide cases, choosing more serious sentences 21.6 percent of the time and less severe sentences 15.1 percent of the time. 

Morris said he wasn’t surprised that judges strayed from the guidelines more often in violent crimes.  “That is where judges are really considering punishment and removing the person from the community for a lengthy period of time,” Morris said.

Of the 551 sexual assault cases in fiscal 2008, 20.5 percent of sentences were higher than the guidelines suggested, while 13.2 percent were lower than the recommendation. However, 22.8 percent of 202 total rape cases had less severe sentences, while 8.9 percent of sentences were more severe. Officials explained that disparity might have to do with the number of charges that falls into the sexual assault category, potential factual issues in rape cases and certain factors, such as age, that can worsen the recommended sentences.

In fiscal 2008, judges stuck to the guidelines more often in fraud, high abuse-risk drug and larceny cases, with 84.5 percent, 83.3 percent and 82.8 percent in compliance, respectively.

These data (as well as those reflected in the chart reprinted here) showcase that Virginia state judges are, generally speaking, as likely to find a guideline-recommended sentence to be too lenient as too harsh.  In sharp contrast, in the federal system, sentencing judges are roughly 10 times more likely to sentence below the guidelines than above the guidelines.  (In drug trafficking case, this ratio goes even higher; judges conclude that the federal guideline range is too harsh roughly 20 times more often than they conclude the federal guideline range is too lenient.)

Though a perfectly equal amount of upward and downward departures does not necessarily shows that a guideline system is perfectly balanced, a departure pattern like what we see in Virginia seems much sounder than what we see in the federal system.  And, what is especially troubling is that, both before and after Booker, despite departure patterns suggesting the federal guidelines are already way too harsh, the vast majority of US Sentencing Commission guideline amendments call for making the guidelines even harsher.

Kentucky legislature struggling with correction costs and sentencing reforms

This local story, headlined "Changes sought in Ky. penal code: Major reforms not on session agenda," provides an interesting window on one state's struggles with correction costs and sentencing reforms.  Here are a few excerpts:

In a short, 30-day session and with a gaping budget hole to fill, the 2009 General Assembly is not expected to take up comprehensive corrections reform, despite a surging inmate population.

Earlier this month Justice Cabinet Secretary J. Michael Brown submitted to Gov. Steve Beshear 11 proposed reforms, most of which are relatively small changes to the penal code.  But in light of the state's budget problems, "comprehensive (corrections) reform is delayed," said Rep. Robin Webb, D-Grayson....

With a burgeoning corrections budget and a fast-growing prison population, criminal justice officials have been clamoring for the first sweeping reform since the penal code was established in the 1970s. The state's prisons house about 21,000 inmates, a figure that is projected to reach 31,000 within a decade. The growth rate is the fastest in the nation, according to a recent report by the Pew Center on the States....

Despite the budget crisis, Brown said the state must be careful not to make program cuts that could increase the recidivism rate and instead should try to find funding for initiatives that could lower the rate.  Officials estimate that roughly 30 percent of all inmates re-offend within two years of being released from prison. "How do we put programs in place that are going to make it more likely, rather than less likely, the individual is going to succeed on the outside?" Brown said.

Notable new stories from the most dysfunctional sentencing state

In the wake of Blogo-gate, there has been lots of talk about what state should be considered most politically corrupt.  That got me to thinking about which state should be considered most dysfunctional when it comes to sentencing.  And these headlines (and the underlying stories) reminded me why a state other than California would have a hard time making the case for most dysfunctional:

• From the San Francisco Chronicle here, "Two lawmakers team up to oppose new Death Row"
• From the OC Register here, "Trim wasteful prison spending: Deficit-burdened state can't afford to lock up so many nonviolent parole violators."
• From The Daily Journal of California here, "High Court Lets 9th Circuit Sentencing Decision Stand"

These stories highlight just some of the many reasons California is clearly the most dysfunctional sentencing state.  Whether we focus on the death penalty, prison overcrowding, constitutional sentencing jurisprudence or federal habeas review, California has something crazy and problematic going on both politically and practically.  I guess the California-based Criminal Justice Legal Foundation never has to worry about running out of things to do. 

New risk-oriented sentencing law operative in Pennsylvania

This local article from Pennsylvania provides an effective review of a notable new sentencing law that its now operative in the Keystone state. Here are some excerpts:

Local crooks in the big house now have a better reason to change their ways. The state's Recidivism Risk Reduction Incentive Act went into effect this week. It means many nonviolent offenders, such as drug users and serial shoplifters sentenced to a state prison term, must be given a third, incentive-based sentence along with their minimum and maximum sentence.

For court staff, the new law means a lot of math: The RRRI sentences would be equal to three-fourths of the minimum sentence imposed when the minimum sentence is three years or less, or five-sixths of the minimum sentence if the minimum sentence is more than three years.  Inmates must complete programs like anger management and substance abuse counseling to meet the terms of their RRRI.  It would be up to the state Parole Board to decide if they are successful.

“This is one to watch,” said Bucks County President Judge David Heckler. “This is something that holds them accountable, but also provides them with the tools they need to successfully reenter society.”... 

Even before defendants can begin any of the court-ordered programs judges tack onto their sentence, they must go through a lengthy classification process to determine which of the state's 27 prisons is the best fit for them.... 

Whether the RRRI act will go smoothly remains to be seen. Although the new law went into effect Nov. 24, an education plan for lawyers and judges is in the works. To be eligible for an RRRI sentence, defendants must meet [many] requirements....  The RRRI law is modeled after a successful New York program. Lawmakers will monitor the program for the next two years and make changes, if needed.

Wisconsin state appellate court urges guideline repeal

This Chicago Tribune article provides this report on an interesting ruling from a Wisconsin state appellate court today:

Wisconsin lawmakers should scrap a law requiring judges to consider sentencing guidelines when punishing people who commit certain felonies, an appeals court said Wednesday. The state commission that kept the guidelines current no longer exists and that makes considering them a pointless exercise, the District 2 Court of Appeals said.

Lawmakers eliminated the Wisconsin Sentencing Commission in a cost-saving measure in last year's state budget. The commission was created in 2001 to study sentencing patterns in Wisconsin, with a goal of making them more uniform from county to county....

But lawmakers failed to repeal a law that requires judges to consider the guidelines when they eliminated the commission. The appeals court warned Wednesday that is giving defendants an avenue for appeal since many judges are no longer filling out the worksheets or looking at the guidelines. Lawmakers must get rid of the law, Chief Judge Richard Brown wrote for a three-judge panel.... Brown made the plea at the end of an opinion in which the court upheld a 30-year prison term for a former Mr. Wisconsin body building champion convicted of torturing and sexually assaulting a woman for hours. The trial judge did not mention the guidelines when he sentenced Timothy Kaprelian of Racine on two counts of second-degree sexual assault and one count of false imprisonment last year.

The appeals court ruled that was a "harmless error" since the judge did consider many of the same factors before imposing the sentence. Lawyers should not cite similar errors as grounds for appeal in the future, it said. "Given the demise of the commission ... most trial judges have fashioned their own highly workable -- and perhaps more elaborate -- assessments and, as here, the record demonstrates that the sentence was the result of a thoughtful, deliberative process," Brown wrote.

The 16-page ruling in Wisconsin v. Kaprelian is available at this link.

Pennsylvania on verge of notable sentencing reforms

As detailed in this local story and this AP account, important sentencing reforms are working their way through Pennsylvania.  Here are the basics from the local reporting:

Nonviolent offenders could spend less time in prison if they complete educational programs and demonstrate good behavior, under legislation before Gov. Ed Rendell.

Proponents say the measures represent the biggest sentencing reforms in Pennsylvania since violent-crime rates started building in the 1980s, leading to a flurry of tougher mandatory minimum prison terms and longer sentences. Supporters say the new measures should lower the risk of repeat offenses and help curb a 25-year trend of higher inmate populations and prison construction....

Most state law-enforcement groups have supported the package. State Attorney General Tom Corbett opposes the legislation. He said Monday that the bills water down Pennsylvania's tradition of being a "truth-in-sentencing" state.

But state House Speaker Dennis O'Brien, R-Philadelphia, Beard, and other supporters noted that all of the breaks envisioned in the new bills require the consent of local prosecutors and judges.  "This represents a new approach to criminal justice for offenders convicted of nonviolent crimes," O'Brien said. "It will make the public safer, ensure that offenders receive services essential to break the cycle of crime ... and ensure that crime victims are treated fairly."

In the AP story, AG Corbett has this notable quote: "'I am going to take a look at what the crime rate is when that goes into effect, and I want to see what it looks like five years from now,' said Corbett, a Republican currently seeking re-election."  I think this is a great suggestion, though an ideal analysis ought to include regional and national crime rate data during this same period.  In other words, as AG Corbett suggests, these pending PA reforms might create a great natural experiment on the sentencing law-crime rate links. 

Evidence that judges will follow sensible sentencing guidelines

Though I do not know all the particulars of the state sentencing guidelines in Pennsylvania, I do know that this local story highlights that sentencing judges will generally follow sentencing guidelines that provide sensible sentencing advice.  The story is headlined "Study: Judges usually comply," and here are excerpts:

Judges in Montgomery County appear to be conforming to state sentencing guidelines and rarely sentence convicted criminals above or below those guidelines, according to a recent study.

Of the 5,537 county sentences reviewed by the Pennsylvania Commission on Sentencing in 2007, 95 percent were within the guidelines recommended by state legislators.  Only 5 percent of the sentences doled out to criminals by county judges in 2007 were outside the guidelines, either above or below state recommendations.

District Attorney Risa Vetri Ferman believes the statistics reflect that the guidelines are accomplishing their purpose in the county. "It shows that our judges take sentencing very seriously and they scrupulously follow the law," Ferman said. "The lion's share of the cases fall into the standard range of the sentencing guidelines because that's where they belong."...

Statewide, overall conformity to the guidelines was high during 2007.  About 91 percent of the 97,360 sentences imposed by judges in all 67 counties during 2007 were within the recommended guidelines.

Interesting sentencing data coming from Nevada study

This article from the Carson Times reports on a sentencing study coming from Nevada that includes some notable and perhaps surprising findings:

About 12.5 percent of felony defendants sentenced in Nevada in 2007 received punishments that fell outside the limits set by law, according to a university study presented Monday to a commission evaluating sentencing practices in the state.

Of the cases studied that year, 1,364 defendants received a minimum or maximum sentence that went beyond what was allowed by statute, said Matt Leone, a researcher with the Grant Sawyer Center for Justice Studies at the University of Nevada, Reno.  "There were folks being sentenced on a one-to-five to a maximum that exceeded five years," Leone told members of the Advisory Commission on the Administration of Justice, an interim legislative panel.  "They were given one-to-10 when the statute said one-to-five."...

The UNR group conducted its study to review the sentencing practices since 1995, when the Legislature passed laws to ensure that inmates paid appropriate punishments.

Besides the apparent sentencing disparity, the group also found that men were more likely to receive tougher punishments than women, and blacks received higher minimum and maximum sentences than whites and Hispanic offenders.  But researchers said when they looked deeper into the cases, they found that the tougher punishments for men and blacks were related to a list of other factors, including having a criminal history, using a weapon, tending to use drugs and alcohol, committing more crimes against people and being more likely to have a history of violence.

The report also said that Nevada has one of the lowest recidivism rates in the country: it came in 10th out of 40 states studied.  The rate was based on a study that questioned whether an offender committed another crime within three years of being released.

The study also found a large disparity among judges over whether a defendant is sent to prison or receives probation.  The highest prison-sentencing rate was 58 percent, while the lowest was 23 percent of the defendants incarcerated.

These last two findings spark a concern I have long had about efforts to reduce sentencing disparity, namely the relationship between sentencing disparity and recidivism.  Would there be and should there be a huge concern about reducing sentencing disparity if it turned out that disparate sentencing patterns correlated with reduce recidivism rates?

Is Booker Heading to Minnesota?

This interesting article discusses the plight of Minnesota judges forced to sentence within a strict state guidelines regime.  Sound familiar?  Here are some excerpts describing the system and its shortcomings:

The system is split into 11 levels.  The lowest levels are for the least severe crimes -- making threats or assaulting a police horse, for example.  The highest levels are for the most severe crimes, such as murder.  The system also takes into account a criminal’s history.  Each time a criminal is convicted of a crime, he is assigned points.

Judges plot a criminal’s point score with the crime level to find the appropriate sentence.  The grid provides judges a fixed range for jail time.

* * *

Judges can depart from the grid, but a separate jury trial must be held to find sufficient aggravating factors or the defendant must agree to let the judge depart.  Once a departure has been made, the judge must then file a report to the commission detailing reasons for departure.  Judges say departures are increasingly rare, partly because the jury trials they require are cumbersome and partly because of budget cuts to the state judiciary.  Judges departed from the guidelines in no more than 15 percent of cases between 1981 and 2006, according to the commission.

The complaints in Minnesota that the grid does not properly account for variations within the same classes of crimes are similar to those heard in the federal system before Booker.  If Minnesota's response to Blakely was to require a jury trial before a judge could depart from the grid, do these complaints suggest that even that system is too inflexible?  Will Minnesota's sentencing experiment survive, or is it proof that Booker's remedy really was a good alternative?

Guest bloggers

"Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences"

This title of this post is the title of this new piece from Professors Nancy King and Susan Sherry appearing on SSRN that looks like a must-read for the long weekend.  Here is the abstract:

This Article tells the story of how fundamental shifts in state sentencing policy collided with fundamental shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. The conventional assumption is that state prisoners seeking habeas relief allege constitutional errors in their state-court convictions and sentences. But almost twenty percent of federal habeas petitions filed by state prisoners do not challenge state-court judgments. They instead attack administrative actions by state prison officials or parole boards, actions taken long after the petitioner's conviction and sentencing. Challenges to these administrative decisions create serious problems for federal habeas law, which is designed to structure federal review of state-court judgments, and is ill suited for review of administrators' actions. Courts find themselves trying to squeeze square pegs into round holes, and the confusion is particularly intolerable given the stakes for prisoners, state prison systems, and federal courts. This Article is the first to identify this significant problem, to analyze its disparate and complicated causes, and to propose a simple and rational way for Congress to respond.

New study indicates success of state guideline systems

This AP story reports on a new study providing empirical praise for states moving to guideline sentencing systems (even voluntary ones).  Here are snippets from the AP report:

State sentencing guidelines virtually erase discrimination in criminal punishments, regardless of how much judges are allowed to deviate from recommended prison terms, according to a study released Thursday. 

The National Center for State Courts examined significantly different guidelines in three states: Virginia, where the guidelines are voluntary; Michigan, which offers some judicial discretion and Minnesota, which has the most mandatory system of the three.  The study concluded that the guidelines in each of those states result in consistent sentences that generally are not influenced by race and economic status.

Wiping out racial discrimination was the major goal of a sentencing guidelines movement that began in the 1970s. "These findings stand in marked contrast to the inconsistent and discriminatory sentencing practices documented in all three states prior to the implementation of guidelines," the researchers wrote. 

The study was released at a National Governors Association retreat on sentencing and prison issues in Jacksonville, Fla. At least 20 states and the District of Columbia use guidelines that consider the nature of the offense and the defendant's criminal history. Minnesota, Michigan and Virginia were studied because their guidelines allow varying degrees of judicial discretion.

"No matter what form the guidelines took, they seemed to eliminate any measurable discrimination," Michigan State University political science professor Charles W. Ostrom, one of the report's four authors, said in a telephone interview. He said that finding was particularly surprising in Virginia. "The voluntary nature of the Virginia guidelines do not preclude it from having real positive effects," Ostrom said. "We thought it would not compare favorably to Michigan and Minnesota."...

The study by the nonprofit, Williamsburg, Va.-based NCSC was funded by the National Institute of Justice, the research arm of the U.S. Department of Justice. The report was financed by the Pew Charitable Trust's Center on the States.

I cannot seem to find a copy of this report on the web anywhere, but I will post this important new research as soon as I can get my hands on it.

UPDATE:  A helpful reader sent me this link to the NCSC report, which is titled "Assessing Consistency and Fairness in Sentencing: A Comparative Study in Three States."  I see lots of interest in this document, which I hope to blog more about in the near future.