Charting the Evolution of Structure and Determinacy in State Sentencing and Corrections Policies 1970–2010

• Author: Andres F. Rengifo,Don Stemen
• DOI: 10.3818/JRP.14.2.2012.1
• Date: 01 December 2012
• Published date: 01 December 2012
• Subject Matter: Policy Essay and Two Commentaries

Structure and determinacy in Sentencing and correctionS PolicieS • 1

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

ChartingtheEvolutionofStructureand 

 DeterminacyinStateSentencingandCorrections

 Policies1970–2010

Don Stemen

Loyola University Chicago

Andres F. Rengifo

Rutgers University - Newark

* Abstract

This study examines state policies governing criminal sentencing and prison release decisions

between 1970 and 2010. The goal is to create common def‌initions and operationalizations

of policies to better specify state-level policy differences over time and across jurisdictions.

Relying on an independent review of state codes, we def‌ine and catalogue key legislative

initiatives adopted across the states, including presumptive sentences, sentencing guidelines,

and the abolition of discretionary release. We argue that a set of common def‌initions and

accounting is necessary for enhancing research on the content, adoption, and impact of

policies and for assisting policymakers in the development of reform initiatives in the areas

of sentencing and corrections.

This research was funded by a grant from the National Institute of Justice (grant # 2002-

IJ-CX-0027).

JUSTICE RESEARCH AND POLICY, Vol. 14, No. 2, 2012

© 2012 Justice Research and Statistics Association

Po l i c y Es s a y a n d Tw o co m m E n T a r i E s

P

2 • JuStice reSearch and Policy

There is no longer an “American” approach to sentencing and corrections. Through

the mid-1970s, state sentencing and corrections systems displayed several common

characteristics—broad judicial discretion in the setting of prison terms and equally

broad parole board discretion in release decisions, few or no restrictions on the use

of probation or nonincarcerative sentences, and limited provisions that enhanced

or extended sentences for specif‌ic offenses. Since the 1970s, however, the traits

once common across state sentencing and corrections systems have broken down,

replaced by patchworks of policies (Tonry, 1996, 2004). More than half of the

states shifted toward structure in sentencing decisions with the creation of sentenc-

ing guidelines or presumptive sentences. Roughly one third of states embraced

determinacy in release decisions with the abolition of discretionary parole release.

Mandatory sentencing laws that require the imposition of incarcerative sentences,

sentence enhancement laws that extend available prison sentences for specif‌ic of-

fenses, and truth-in-sentencing laws that require offenders to serve a higher por-

tion of their imposed sentences proliferated in the past 40 years. The “American”

approach to sentencing and corrections is now one of variation and change.

A growing body of literature has sought to describe these changes in state sen-

tencing and corrections systems and to catalogue the presence of discrete policies

across states (Bureau of Justice Assistance, 1996, 1998; Henry, Austin, & Clark,

1997; Lubitz & Ross, 2001; Ostrom, Kauder, Rottman, & Peterson,1998; Par-

ent, Dunworth, McDonald, & Rhodes, 1996a, 1996b; Pfaff, 2005; Sabol, Rosich,

Kane, Kirk, & Dubin, 2002; Shane-Dubow, Brown, & Olsen, 1985; Stemen &

Rengifo, 2005). Others have sought to understand the philosophical underpinnings

of the evolution in the “American” approach to sentencing and corrections (see,

e.g., Garland, 2001) and the factors spurring recent policy changes (Beckett, 1997;

Beckett & Sasson, 1999; Caplow & Simon, 1999; Chiricos, 1998; Garland,

2001;

Tonry, 2004). Finally, several studies have sought to determine the impact of specif‌ic

policies on trial rates, prison admission rates, incarceration rates, and recidivism

rates in individual jurisdictions and across states (see, e.g., Bales, Gaes, Blomberg, &

Pate, 2010; Greenberg & West, 2001; Jacobs & Carmichael, 2001; Marvell, 1995;

Marvell & Moody, 1996, 2000; Nicholson-Crotty, 2004; Sabol et. al., 2002; Schle-

singer, 2011; Smith, 2004; Spelman, 2009; Stemen & Rengifo, 2011).

Despite this wealth of literature, inconsistent operational def‌initions of policies

persist, particularly when applied to the form and content of structured sentenc-

ing and determinate sentencing (see also Chanenson, 2005). For the most part,

researchers and policymakers have applied these labels interchangeably or impre-

cisely, as has the U.S. Supreme Court in recent decisions addressing the constitu-

tionality of structured sentencing policies (Blakely v. Washington, 542 U.S. 296

[2004]; United States v. Booker, 543 U.S. 220 [2005]; Cunningham v. California,

549 U.S. 270 [2007]). Even when clear def‌initions of policies are given, commen-

tators often provide ambiguous accounts of which states have adopted specif‌ic

policies (see, e.g., Chanenson, 2005; Spelman, 2009), resulting in often conf‌licting

accounts of the adoption of policies across states. This lack of def‌initional and

Structure and determinacy in Sentencing and correctionS PolicieS • 3

operational clarity has led to potentially misleading f‌indings regarding the impact

of policies on state incarceration rates (see, e.g., Marvell, 1995; Nicholson-Crotty,

2004; Spelman, 2009; Stemen & Rengifo, 2011), plea rates and trial rates (Mar-

vell & Moody, 2000), and recidivism (Bales et al., 2010), and continues to create

considerable confusion in state courts’ interpretations of the constitutionality of

sentencing policies (see, e.g., Hall, 2009). This confusion affects policy develop-

ment, technical assistance, and the dissemination of best practices across jurisdic-

tions. Without a consistent def‌inition of terms and operationalization of policies,

research linking specif‌ic policies or groups of policies to outcomes may lead to

shifting conclusions, making it is increasingly diff‌icult to advise policymakers on

“what works” in sentencing and corrections.

This article addresses this issue by systematically def‌ining and operationalizing

structured sentencing and determinate sentencing. We focus on the mapping of

these two policy domains because they provide a broad, relatively stable founda-

tion from which to examine both sentencing and release decisions and encompass

most of the scholarly and policy-driven analysis on this topic. They also have the

potential to inform ongoing reform efforts aimed at promoting not only more con-

sistent sentencing outcomes but also more cost-eff‌icient, evidence-based penal sys-

tems. Relying on state-level policy data collected through an independent review of

state codes and prior research (see, e.g., Bureau of Justice Assistance, 1996, 1998;

Frase, 2005; Marvell, 1995; Marvell & Moody, 1996; Ostrom, Kauder, Rottman,

& Peterson, 1998; Stemen & Rengifo, 2005), we propose a “common language”

(see also Chanenson, 2005) to describe state sentencing and corrections systems

and develop a comprehensive account of states adopting specif‌ic structured sen-

tencing and determinate sentencing policies between 1970 and 2010.1 Such a com-

mon language and accounting is necessary for better understanding the content

and interconnections of policies and enhancing the impact of policy-based research

on sentencing and corrections policies in the United States.

* Prior Entangling of Structure and Determinacy

Structured sentencing and determinate sentencing are usually used in the literature

in reference to sentencing guidelines or the abolition of discretionary parole re-

lease. Often, however, these terms are used imprecisely or interchangeably. Several

authors, for example, use the term structured sentencing to refer exclusively to

1

Our focus in this paper is to def‌ine and detail state-level sentencing and corrections

policies and to examine changes in these policies over time. We believe that most of the

confusion about terminology and operationalization of policy variables occurs at this level

of analysis. As such, we do not catalogue federal sentencing policies (see Tonry, 1996 for a

detailed description of federal sentencing policies).