SENTENCING
Overview/Review
The “PSI” and “Risk Assessment”
Sentencing Disparity
Sentencing Guidelines
Who Dictates Time Served?
Review
• The penalty ordered by the court after a defendant has
been convicted of a crime
• Structures
• Determinate vs. Indeterminate
• Mandatory (mand. minimum, mand prison)
• Truth in Sentencing, 3-Strikes, Life W/O Parole
• Concurrent vs. Consecutive
Sentencing Options
• Secure Confinement
• Prison/Jail
• Split sentences, shock probation
• Intermediate Sanctions
• Halfway houses, boot camps, electronic monitoring
• Community
• Probation, Intensive Probation
• Fines, Restitution, Community Service
• Other “conditions of probation”
Considerations at Sentencing
• Presentence investigation report (PSI)
• Social history
• Current employment, family, housing status
• Information about current offense(s)
• Victim statement, police report, etc.
• Criminal history
• Sentencing recommendation
• Guideline score (offense-based, grids)
• Risk assessment
• Legal issue—should defendant be allowed to see the
PSI?
• Uses beyond sentencing
Risk Assessment
• Actuarial prediction of the risk for reoffending
• History: emerged in the 1980s, became common 1n 1990s
• Interview and/or review of criminal file
• Criminal history factors
• Static prediction
• Salient factor score
• Dynamic
• Level of supervision inventory
Sentencing Guidelines
• Emerged as an alternative to indeterminate sentencing
structures in the 1980s
• Conservatives and liberals both embrace
• Advisory vs. Presumptive
• United States v. Booker (2005)
•
Grids or scales with instructions
• Prison/not, length of sentence
• Mitigating/aggravating circumstances
• Created by “sentencing commissions”
• Variation in purpose, structure, how “political”
Sentencing Disparity
• Legal factors
• Prior record
• Offense seriousness
• Extralegal factors
• Gender, race/ethnicity, social class
• Demeanor
• Family situation
• Employment
• Some are viewed as “legitimate,” others not…
Do Guidelines Reduce Disparity?
• Legal factors explain most sentencing differences
• Some studies find that, after controlling for legal factors, extra-legal
factors still matter (but are weak predictors)
• Gender most common
• Race (sometimes)
• Not much sentencing disparity to reduce
• Studies mixed on whether they reduce disparity
Sentencing Discretion
• Who plays a role in a sentence?
• Legislature
• Front end / back end
• Probation (PSI)
• Prosecutor
• Judge
• Parole board/corrections official/PO
• Discretion Hydraulics
• “Indirect” sentencing by others
Reasons why guidelines may not reduce
disparity
• Some biases are built into guidelines
• Crack Multiplier
• Prior Record
• Based on “past practices”
• Bias from other sources
• Discretion shifted to prosecutors
• Police create the “pool” of offenders
Courtroom Workgroup
• Judges, Defense Attorneys, Prosecutors, and Probation
Officers share a set of informal norms/rules
• “The Going Rate”
• Legal Variables
• Relationship between victim/offender, mitigating/aggravating
circumstances
• Prosecutor charging decisions (plea negotiations)
• Probation Officer PSI recommendations