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

• Author: Brian Renauer,Christopher M. Campbell,Mark Harmon Leymon,Ann Leymon
• DOI: http://doi.org/10.1177/08874034221146885
• Published date: 01 April 2023
• Date: 01 April 2023
• Subject Matter: Articles

https://doi.org/10.1177/08874034221146885

Criminal Justice Policy Review

2023, Vol. 34(3) 261 –290

© The Author(s) 2023

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/08874034221146885

journals.sagepub.com/home/cjp

Article

Circumventing the Sentencing

Grid: Encouraging Downward

Departures in Presumptive

Prison Cases

Brian Renauer1, Christopher M. Campbell1,

Mark Harmon Leymon1,

and Ann Leymon1

Abstract

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.

Keywords

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.

Email: renauer@pdx.edu

1146885CJPXXX10.1177/08874034221146885Criminal Justice Policy ReviewRenauer et al.

research-article2023

262 Criminal Justice Policy Review 34(3)

Introduction

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