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August 19, 2008

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?

August 19, 2008 at 07:12 AM | Permalink


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"if it turned out that disparate sentencing patterns correlated with reduce recidivism rates"

That's a mighty big IF about which to speculate, Doc. If judges' rate of imprisonment ranged from 23-58%, who's to say that the judges with more Ds on probation aren't the ones whose practices reduce recidivism?

Also, what was the recidivism rate for those whose sentences were longer than statutorily allowed - higher or lower? Your comment seems to assume longer sentences reduce recidivism, but neither the link provided nor most data I've seen supports that idea.

Finally, I don't personally have a big problem with sentence "disparity," though obviously sentences should fall within the ranges in the law. IMO sentences should be crafted around the individual circumstances of the case, not in a cookie-cutter one-size fits all fashion.

Posted by: Gritsforbreakfast | Aug 19, 2008 8:14:55 AM

Grits: You are, of course, 100% right that a mighty big IF is part of my speculation about any relationship between so-called disparity and so-called recidivism. (Indeed, I use the "so-called" adjective because the very concepts of disparity and recidivism are unstable and can vary from study to study.)

The key point I was trying to make was merely to flag the possibility that two things we hope to reduce through various sentencing reforms --- unwarranted disparity and repeat offenses --- may not be completely independent.

The Nevada data set forth above does not establish anything clear in this regard. But given that we rarely see efforts to measure a relationship between disparity and recidivism, I thought this data provided a useful time to flag a concern I have always had about the goals of sentencing reform.

Posted by: Doug B. | Aug 19, 2008 9:21:21 AM

Texas where Grits is and Oklahoma where I am have no guidelines and thus more "disparate" sentencing but also have among the lowest recidivism rates in the country. This is because we send so many people later assessed "low risk" on instruments such as the LSI-R to prison rather than probation, as other states do. It sounds like Nevada could have the same sort of thing going on. It appears that this kind of "disparity" could be relieved somewhat by having the assessments done upfront, pre-sentencing, but that requires paradigm changes and difficult logistics for correctional departments and law enforcement agencies. It also means that, if low risk offenders were moved to probation and other nonincarcerative sentences, corrections departments would see their recidivism rates for released inmates go up. Department directors might not be thrilled with the prospect of explaining how higher recidivism is a good thing. In any case, it indicates that the guidelines movement, in states still motivated by impacting disparity, should take more into account than the usual matrix factors associated with crim history or limited "offender scores" when developing guidelines. Some, like VA, have extensive worksheets with many of the assessment factors. Coupled with good data on how offenders have fared in terms of misconducts and recidivism once sentenced, IOW, what sentences seem to work best for offenders with a given assessment, these factors could inform judges at sentencing much better than the usual grid system. And it would also allow testing of your interest in whether and how disparity might be warranted.

Posted by: Michael Connelly | Aug 19, 2008 9:22:51 AM

Is it really a surprise that the courts are biased? A number of factors, including judges having to run for office and every politician appointing "tough on crime" attorneys to the bench, make minorities, the poor and drug addicts easy targets.

Posted by: JT | Aug 19, 2008 10:52:55 AM

Assuming a similar caseload, the fact that one judge had an incarceration rate of 58% versus another judge at 23% makes the case for mandatory sentencing guidelines.

Posted by: mjs | Aug 19, 2008 12:26:52 PM

In my county most of the racial disparity has been established when the accused is booked into jail. It appears (based on a small sample) that case processing increases the disparity by about 50%. It is possible this the result of bias by the court but case processing is very complex and most cases are disposed of by plea bargaining and as a consequence it is difficult to make a case that the court is biased. If there is bias it is most likely to be institutional bias rather than individual bias.

The outcome of the criminal justice process strongly depends on social economic status and SES and race/ethnicity are highly correlated. One of the questions about the Nevada and other studies is are what they are measuring caused by SES factors or race/ethnicity factors.

Posted by: John Neff | Aug 19, 2008 12:38:31 PM

I can't agree wholeheartedly with the aims Doug mentions for sentencing reform. I don't think that reducing sentencing disparity in the abstract is a worthwhile or meaningful goal. Basic to the rule of law is that punishment be proportional to the crime. What we face in this country is cultural and philosophical difference as to precisely what a proportional sentence is in every case. Such differences will always exist because people's perception of what proportional punishment is changes as their life circumstance changes; there is no uniform conception of justice either between individuals or within the span of an individual's life time. As a consequence, the goal of sentencing reform is better directed at being sensitive to both current cultural and social norms regarding justice as well as changes to those norms. Disparity in sentencing is a bad thing if the sentence under criticism offends basic norms of proportionality. But such disparity is a good thing if it is accurately reflective of the unique circumstances of the case or is sensitive to objective changes in underlying norms.

Posted by: Daniel | Aug 19, 2008 3:15:46 PM


Sociologists have done surveys of diverse sets of people where that were asked to rank order criminal offenses in order of increasing severity. There was general agreement about the rank order within a set and among sets independent of social economical status and political ideology.

This means that it should be possible to establish a relative scale of proportionality that has broad public support. However it is unlikely that an
absolute scale of proportionality will have broad public support (the ongoing fight over the DP is sufficient proof of that). Establishment of an absolute scale is a political process involving passing a bill that is signed by the governor or by overriding a veto.

The problem is that there does not appear to be a practical way to stop the
legislature from changing the relative rank of a particular offense and over time proportionality is degraded.

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