Circumventing the Sentencing Grid: Encouraging Downward Departures in Presumptive Prison Cases

Published date01 April 2023
Date01 April 2023
Subject MatterArticles
Criminal Justice Policy Review
2023, Vol. 34(3) 261 –290
© The Author(s) 2023
Article reuse guidelines:
DOI: 10.1177/08874034221146885
Circumventing the Sentencing
Grid: Encouraging Downward
Departures in Presumptive
Prison Cases
Brian Renauer1, Christopher M. Campbell1,
Mark Harmon Leymon1,
and Ann Leymon1
This study examines sentencing outcomes of Justice Reinvestment Initiative
(JRI) focused on reducing incarceration by encouraging downward departures to
community-based sanctions in presumptive prison cases. The sample includes 3,930
defendants enrolled in the JRI program. Pre-adjudication assessment reports and a
judicial settlement conference were used to help the court decide if a case warranted
a departure offer. A quasi-experimental design with propensity score matching
balanced JRI program defendants to 1,153 historic defendants that would have been
eligible in the previous year. Logistic regressions assessed the impact of both program
participation and race/ethnicity, controlling for other factors on prison versus
probation sentence outcomes and sentence length in prison outcomes. On average,
across all racial groups, program participants are 52% less likely to go to prison. The
impact of participation on sentencing outcomes was also equitable across the race/
ethnicity of defendants. However, the program did not affect sentence length of
prison outcomes.
justice reinvestment, plea bargaining, sentencing disparity, risk assessment
1Portland State University, OR, USA
Corresponding Author:
Brian Renauer, Department of Criminology & Criminal Justice, Portland State University, Portland, OR
97207-0751, USA.
1146885CJPXXX10.1177/08874034221146885Criminal Justice Policy ReviewRenauer et al.
262 Criminal Justice Policy Review 34(3)
Although the nation has observed a decrease in imprisonment by 13% from 2007 to
2017, the imprisonment rate remains at 440 sentenced prisoners per 100,000 U.S. resi-
dents (Bronson & Carson, 2019). Concern over the remnant impacts of mass incar-
ceration continues to push jurisdictions to become more creative in determining the
best research-based initiatives that can scale back imprisonment while balancing pub-
lic safety (Skeem & Lowenkamp, 2016). Many approaches at the state level have
fallen under the banner of “Justice Reinvestment Initiatives” (JRI). To impact prison
growth, JRIs have focused on “back end” incarceration interventions (e.g., early prison
leave, community resources for returning prisoners) and/or “front end” interventions
that are designed to curb the use of prison sentences (e.g., revisions to sentencing laws
and practice; Harvell et al., 2016). Despite the wide implementation of JRI initiatives,
there has been little empirical research on the results of these policies (Sabol &
Baumann, 2020).
This study examines the impact of a “front end” JRI initiative on sentencing out-
comes. Some states like Oregon, South Dakota, Mississippi, and Nebraska have devel-
oped JRI programs that create, expand, and incentivize jurisdictions to use more
“downward departure” plea agreements to community-based probation sentences in
presumptive prison cases (Harvell et al., 2016). The term downward departure is used
in this study to refer to cases where a finalized plea agreement entails either a reduc-
tion of the sentence from the original sentencing grid recommendation of prison to
probation or a reduction in total prison months from the sentencing guideline recom-
mendation. Hence, the sentencing outcome is less punitive (i.e., downward) and a
departure from statutory sentencing guidelines/policy. We use the term presumptive
prison to refer to cases where the defendant has at least one filed charge they are
accused of that the sentencing grid or mandatory sentencing laws stipulate a prison
sentence, depending on the defendant’s criminal history and crime seriousness. To
obtain a departure from sentencing guidelines/policy in the program, the prosecution
and defense can either negotiate a stipulated plea agreement to less serious charges, a
different sentencing grid location, or shorter sentence, which must be accepted by the
sentencing judge. To differentiate this type of JRI effort, we refer to it as a “downward
departure program” that embodies the notion that the JRI effort is purposely trying to
promote cooperative prison departures often through the use of policy incentives or
reinvestments. Such programs are not true “diversion” efforts in the sense that the
defendant must still plead guilty and may face prison time as a penalty for failure
while under community supervision. Encouraging downward departures runs counter-
intuitive to the “get-tough” philosophies in recent decades. JRI programs seeking to
affect prison growth through downward departures usually incentivize the effort by
increasing local funds for more intensive probation supervision, specialty courts pro-
gramming, and/or treatment services that assuage concerns that defendant risk and
public safety will not be accounted for. Cases that are presumptive prison under most
state sentencing guidelines are also more likely to involve defendants with substantial
criminal histories and committing more serious crimes. The higher risk aspect of

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