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disparities in time served by those convicted of comparable crimes, and the linking of release decisions in part to empirical evidence on prisoners’ probabilities of subsequent offending (Gottfredson et al., 1978). The parole guidelines movement quickly lost steam, however, despite evidence of the guidelines’ effectiveness, when well implemented, in improving consistency in the setting of release dates and in time served for similar offenses (Arthur D. Little, Inc., and Goldfarb and Singer, Esqs., 1981; National Research Council, 1983, pp. 194-196). The four pioneering systems were abandoned in the 1980s, replaced in each case by presumptive sentencing guideline systems that also sought to achieve greater procedural fairness and consistency.

One advantage of parole guidelines is that they can make case-by-case decision making within a well-run administrative agency faster, less costly, and more easily reviewable than decisions made by judges. A second advantage is that, as commonly happened during the indeterminate sentencing era, parole boards can address prison overcrowding problems by adjusting release dates (e.g., Messinger et al., 1985). A major disadvantage, however, is that parole boards have authority only over those sentenced to imprisonment. Parole guidelines can reduce unwarranted sentence-length disparities among prisoners, but not between them and others sentenced to local jails or community punishments.

Voluntary Sentencing Guidelines During the 1970s, local courts and, occasionally, state judiciaries in most states created systems of voluntary sentencing guidelines (Kress, 1980;

National Research Council, 1983). Today, they would usually be referred to as “advisory” guidelines. Judges were not bound to follow them and needed to give no reasons if they did not; a defendant could not appeal the judge’s decision. Most early voluntary guideline systems were abandoned or fell into desuetude. Evaluations through the late 1980s, most notably of judicially crafted systems in Maryland and Florida, showed that they had few or no effects on sentencing decisions or disparities (Rich et al., 1982;

Carrow et al., 1985; Tonry, 1996, Chapter 3).

Voluntary guidelines have attracted renewed interest because of two recent U.S. Supreme Court decisions (U.S. v. Booker, 543 U.S. 220 [2005], and Blakely v. Washington, 542 U.S. 296 [2004]), which created new procedural requirements for presumptive sentencing guideline systems. A small number of states now operate voluntary guideline systems, but credible research evidence on their effects on sentencing disparities is not available.

However, prison population growth in two especially well-known systems using voluntary guidelines—in Delaware and Virginia—has long been below national averages.

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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Determinate Sentencing Laws The most influential reform proposals during this phase called for the abolition of parole release and the creation of enforceable standards to guide judges’ decisions in individual cases and provide a basis for appellate review (e.g., Morris, 1974; Dershowitz, 1976; von Hirsch, 1976). Policy makers responded. Maine in 1975 abolished parole release and thereby became the first modern “determinate” sentencing state in the sense that the length of time to be served under a prison sentence could be known, or “determined,” when it was imposed. California came second, enacting the Uniform Determinate Sentencing Act of 1976; the act abolished parole release and set forth recommended normal, aggravated, and mitigated sentences for most offenses. Other states—including Arizona, Illinois, Indiana, and North Carolina—quickly followed California’s lead in enacting such laws. Evaluations concluded, however, that the laws had little if any effect on sentencing disparities (Cohen and Tonry, 1983; Tonry, 1996). No additional states have created comprehensive statutory determinate sentencing systems since the mid-1980s.

Presumptive Sentencing Guidelines In 1978, Minnesota enacted legislation to create a specialized administrative agency—a sentencing commission—with authority to promulgate presumptive sentencing guidelines. Judges were required to provide reasons for sentences not indicated in the guidelines; the adequacy of those reasons could be appealed to higher courts. Minnesota’s guidelines took effect in

1980. Oregon, Pennsylvania, and Washington created similar systems in the 1980s. Evaluations showed that well-designed and -implemented presumptive guidelines made sentencing more predictable, reduced racial and other unwarranted disparities, facilitated systems planning, and controlled correctional spending (Tonry, 1996, Chapter 3). Kansas, North Carolina, and Ohio created similar systems.

The Minnesota, North Carolina, and Washington commissions operated under “population constraint” policies; the aim was to ensure that the number of inmates sentenced to prison would not exceed the capacity of state prisons to hold them. The population constraint policies worked.

During the periods when they were in effect, those states experienced prison population growth well below national averages.

The primary policy goal of the early presumptive guideline systems was to reduce disparities and unfairness (Lieb and Boerner, 2001; Frase, 2005;

Kramer and Ullmer, 2008). The approach was proceduralist and technocratic, focusing primarily on the development of procedures for improving consistency and predictability and of population projection models for use Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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in financial and facilities planning. The primary aim of North Carolina’s guidelines was to control the size of the prison population (Wright, 2002).

This aim was realized: after the guidelines took effect in 1994, North Carolina’s incarceration rate through 2011 fluctuated between 340 and 370 per 100,000 population, while most other states’ rates rose substantially.

Population constraint policies made obvious sense to the early sentencing commissions and the legislatures that established them.

Things quickly changed. From the mid-1980s through 1996, policy making in this area ceased to be significantly influenced by concerns about evidence, fairness, and consistency. In Minnesota, the legislature in 1989 instructed the commission to abandon its population constraint policy. In Oregon, the committee that had drafted and monitored the guidelines was disbanded, and the guidelines were trumped by a broad-based mandatory minimum sentence law enacted in 1994. The Pennsylvania Commission on Sentencing survived, but state supreme court decisions effectively converted the nominally presumptive guidelines into voluntary ones (Reitz, 1997;

Kramer and Ulmer, 2008).

More generally, presumptive sentencing guidelines fell from favor. The three most recent presumptive guideline systems—those of Kansas, North Carolina, and Ohio (abandoned in 2006)—were established in the mids. A few voluntary systems have been developed since then. Sentencing commissions in Florida, Louisiana, Tennessee, and Wisconsin were abolished, and Washington’s lost its staff and budget in 2011 (Frase, 2013).

A number of studies have concluded that sentencing guidelines, especially with population constraints, help control the size of the prison population. Marvell (1995) compared prison population growth from 1976 to 1993 in nine states that had voluntary or presumptive guidelines with the national average and concluded that guidelines based on population constraints produced lower rates of population increase. Nicholson-Crotty (2004), using prison data for 1975-1998 in a 50-state analysis, concluded that guidelines based on capacity constraints tend to moderate growth in incarceration and that guidelines not based on such constraints exacerbate it. Stemen and colleagues (2006) analyzed state sentencing patterns in the period 1975-2002 and concluded that states that adopted presumptive guidelines and abolished parole release had lower incarceration and prison population growth rates than other states.

The promulgation of federal sentencing guidelines, which took effect in 1987, signaled the end of the phase of modern U.S. sentencing reform that targeted disparities and the beginning of a phase focused on increased certainty and severity. The Sentencing Reform Act of 1984 directed the U.S.

Commission on Sentencing to develop guidelines for reducing disparities, to provide for nonincarcerative punishments for most nonviolent and nonserious first offenses, and to be guided by a prison population constraint policy.

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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The commission ignored the directives concerning first offenses and prison capacity and instead promulgated “mandatory” guidelines that greatly increased both the percentage of individuals receiving prison sentences and the length of sentences for many offenses (Stith and Cabranes, 1998). The federal guidelines were effectively converted from presumptive to voluntary by the U.S. Supreme Court in U.S. v. Booker, 543 U.S. 220 (2005).

Presumptive sentencing guidelines developed by a sentencing commission are the most promising means available to jurisdictions that want to reduce or avoid unwarranted sentencing disparities, improve budgetary and policy planning, or both. The well-documented successes of the Minnesota, Oregon, and Washington guidelines in the 1980s and of the North Carolina guidelines since their promulgation in 1994 show that both sets of goals are attainable.

Phase II: Changes Aimed at Increased Certainty and Severity Sentencing laws enacted from the mid-1980s through the mid-1990s differed substantially from most of those enacted in the preceding period.

Whereas the earlier initiatives were aimed principally at making sentences more predictable and consistent and making processes fairer and more transparent, initiatives in the second phase of change in modern sentencing law typically targeted making sentences harsher and more certain and preventing crime through deterrence and incapacitation. The focus shifted from fairness to certainty, severity, crime prevention, and symbolic denunciation of criminals. The shift toward severity took place despite three generations of efforts, often with federal demonstration project funding, to develop alternatives to incarceration (sometimes synonymously called “intermediate sanctions” or “community penalties”) (Morris and Tonry, 1990).

The policy initiatives of the second phase, symbolized by the proliferation of mandatory minimum sentence laws, undermined pursuit of the aims of the first phase. Two centuries of experience has shown that mandatory punishments foster circumvention by prosecutors, juries, and judges and thereby produce inconsistencies among cases (Romilly, 1820; Reekie, 1930;

Hay, 1975; Tonry, 2009b). Problems of circumvention and inconsistent application have long been documented and understood.

To illustrate this point with modern experience, we draw on the findings of the American Bar Foundation’s Survey of the Administration of Criminal Justice in the United States, which was conducted in the 1950s.

According to Frank Remington, director of the project, “Legislative prescription of a high mandatory sentence for certain offenders is likely to result in a reduction in charges at the prosecution stage, or if this is not done, by a refusal of the judge to convict at the adjudication stage. The issue...

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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thus is not solely whether certain offenders should be dealt with severely, but also how the criminal justice system will accommodate to the legislative charge” (Remington, 1969, p. xvii). Newman (1966, p. 179) describes how Michigan judges dealt with a lengthy mandatory minimum sentence for drug sales: “Mandatory minimums are almost universally disliked by trial judges.... The clearest illustration of routine reductions is provided by reduction of sale of narcotics to possession or addiction.... Judges...

actively participated in the charge reduction process to the extent of refusing to accept guilty pleas to sale and liberally assigning counsel to work out reduced charges.” Newman (1966, p. 182) tells of efforts to avoid 15-year mandatory maximum sentences: “In Michigan conviction of armed robbery or breaking and entering in the nighttime (fifteen-year maximum compared to five years for daytime breaking) is rare. The pattern of downgrading is such that it becomes virtually routine, and the bargaining session becomes a ritual. The real issue in such negotiations is not whether the charge will be reduced but how far, that is, to what lesser offense” (Newman, 1966,

p. 182). Dawson (1969, p. 201) describes “very strong” judicial resistance to a 20-year mandatory minimum sentence for the sale of narcotics:

“Charge reductions to possession or use are routine. Indeed, in some cases, judges have refused to accept guilty pleas to sale of narcotics, but have continued the case and appointed counsel with instructions to negotiate a charge reduction.” Many individuals committing offenses targeted by mandatory punishments do, of course, receive them, but others on whose behalf officials circumvent the laws do not. Mandatory punishments transfer dispositive discretion in the handling of cases from judges, who are expected to be nonpartisan and dispassionate, to prosecutors, who are comparatively more vulnerable to influence by political considerations and public emotion.6 The following subsections review sentencing policy initiatives in the second phase of change in modern sentencing law.

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