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Judges and Discrimination: Assessing the Theory and Practice of Criminal Sentencing

NCJ Number
Date Published
October 2003
364 pages
This report provides a theoretical and empirical study of the sentencing process addressing three challenges: the extent to which judges are consistent in their sentencing behavior, the degree to which there is evidence of discrimination in felony sentencing, and the magnitude of the local variation in sentencing within a given State.
Large gaps are acknowledged in the understanding of how punishments are tailored across the full range of sentencing options. Even though State sentencing statutes and sentencing structures limit a judge’s freedom in their choice of sentencing, there is a need to come to terms with judicial discretion and how it is put into practice. A comprehensive assessment of sentencing outcomes in present day America must integrate understanding of the sentencing proclivities of individual judges with the way discretion is shaped and controlled. The interest on sentencing outcomes focuses on judicial discretion, as well as on the disparity of sentences and the degree of variation in sentencing within a State. The scope and content of this report, supported by the National Institute of Justice, U.S. Department of Justice is guided by the empirical study of criminal sentencing, specifically judicial discretion, sentence disparity, and State sentence variation. Each chapter in this report will address a distinct issue in sentencing literature, formulate a theoretical approach, and use a blend of analytic techniques to provide an answer. The ultimate goal is to develop and empirically test a comprehensive model of the sentencing process. The analysis of the judicial sentencing process proceeds in three sections: sentencing in theory, sentencing in practice, and prospects for reform. It begins by reviewing cybernetic/structural organization theory, attribution theory, social context/worlds theory, and personal construct theory, thereby identifying the fundamental elements shaping the judicial sentencing decision in chapter 2. In chapter 3 the sentence type decision is characterized using five distinct categories. Chapter 4 develops a measure of the sentence severity dependent variable for the prison-type decision. In chapter 5, data will be presented and will operationalize the relevant offender characteristics identified in chapter 2 into a set of independent variables to use in both the model of sentence type and of sentence severity. Chapters 6, 7 and 8 will evaluate the model of sentencing empirically. Specifically, chapter 6 empirically evaluates the sentence type model; chapter 7 explores the methodology of estimating sentence severity models; and chapter 8 conducts a comparative statistics analysis of the two models. Lastly, chapter 9 builds a sentencing guidelines system consistent with the theory developed in the first eight chapters. The system is built in a way that enables policymakers to forecast accurately the short and long term consequences of any changes in the system. The intent has been to illustrate each aspect of the analysis through a comprehensive study of sentencing outcomes in Michigan. It is believed that the project makes four fundamental contributions to the study of sentencing in the United States: theoretical, measurement, methodological, and substantive. The argument throughout is that effective sentencing reform has a greater likelihood of success if firmly grounded in both theory and realities of sentencing in the United States. Seven recommendations are presented and discussed. Tables, appendices, and references

Date Published: October 1, 2003