Cross-Jurisdictional Disposition Variability Under Sentencing Guidelines

• Author: Katrin Mueller-Johnson,Paula M. Kautt
• DOI: 10.1177/0734016808328673
• Date: 01 September 2009
• Published date: 01 September 2009
• Subject Matter: Articles

350

Cross-Jurisdictional Disposition

Variability Under Sentencing

Guidelines

The Example of Equivalent Sex Offenses

Paula M. Kautt

Katrin Mueller-Johnson

University of Cambridge, UK

The sentencing guidelines of different jurisdictions often have distinct objectives and approaches

to sentencing. Drawing on the arguments of past research as well as focal concerns and populist

punitiveness, the current research assesses whether or not differences in design and

implementation of the sentencing guidelines of two systems(Pennsylvaniaand Oregon) influence

the incarceration and sentence length decisions meted out to comparable sex offenders within

these jurisdictions.The authors hypothesize that, despite having similar grid-basedconfigurations,

variations in the history and structure of these guidelines significantly influence predictors of

sentencing outcomes across these jurisdictions. Usingindecent assaultand sexual abusecases, this

research explores how well the aforementioned orientations perform in explaining the

incarceration and sentence length decisions within and across these two jurisdictions.

Keywords: sentencing guidelines; comparative analysis; sex offenses; criminal sentencing;

state courts

In the latter part of the 20th century, amid allegations of unwarranted sentence disparity,

many states searched for a commonsense alternative to indeterminate sentencing.1The

advent of sentencing guidelines, standards specifying predetermined dispositions for given

offense gravity and prior record combinations (von Hirsch & Greene, 1993), seemed the

answer to many legislators’ prayers and a means of achieving sentence parity. By the late

1980s, this approach had become a favorite of both academics and legislatures (Tonry,

1987). At the close of the past century, more than a third of U.S. states as well as the fed-

eral government had implemented sentencing guidelines for criminal offenses (Lubitz &

Ross, 2001).

For those with only a passing familiarity with the criminal justice system, such preva-

lence gives the appearance of unified and equitable sentencing practice across the United

States. However, despite the common moniker, guideline systems generally bear only a

cosmetic resemblance. Although most utilize a grid-based structure of offense seriousness

and prior criminal record to guide judges to the prescribed sanction for a given offender,

Criminal Justice Review

Volume34 Number 3

September 2009 350-381

© 2009 Georgia State University

Research Foundation, Inc.

10.1177/0734016808328673

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Authors’ Note: The authors wish to thank Andrew von Hirsch, the editor, and the anonymous reviewers for

their helpful suggestions and feedback on this article.

Kautt, Mueller-Johnson / Variability Under Sentencing Guidelines 351

the similarity often ends there. The impetus behind, development, ratification process,

goals served, and practicalities such as the degree of specification of the different guide-

lines scores often vary substantially between guideline jurisdictions (Lubitz & Ross, 2001;

von Hirsch & Greene, 1993; Wooldredge & Griffin, 2005).

Given such variation, it seems unlikely that these interventions would have uniform

effects over sentencing outcomes. In fact, much like different countries, states and their

respective criminal codes are independent of one another, having differences in operation

and governance as well as serving divergent populations. Thus, one would intuitively

expect significant variation in both state guideline systems and the sentences meted out to

comparable offenders under them. Logically, these differences would reflect the varied

paths taken in devising and implementing guidelines (Kautt & DeLone, 2006; Kramer,

Lubitz, & Kempinen, 1989; von Hirsch & Greene, 1993). Yet, to date, only one known

study has compared sentencing outcomes under different guidelines to assess these possi-

bilities (Kramer et al., 1989).

Given the increasingly global field of criminology (Winslow & Zhang, 2008) where

empirical results are frequently used to shape policy in jurisdictions beyond the original

research site (Sentencing Commission Working Group [SCWG], 2008; Tonry, 1996), there

is a clear need for comparative studies assessing the impact of criminal justice interven-

tions. In this vein, the current research compares the effects of systemwide sentencing inter-

ventions over case-level sentencing outcomes in two different jurisdictions. Specifically,

we test for sentence variation within and between two grid-based guideline systems

(Pennsylvania and Oregon) in comparable sex crimes (indecent assault and sexual abuse,

respectively) both before and after additional changes to sentencing policy were intro-

duced. Our expectations are derived from focal concerns (Steffensmeier, Ulmer, & Kramer,

1998) and populist punitiveness (Bottoms, 1995). However, before discussing these in

detail, a brief review of sentencing guidelines is in order.

Sentencing Guidelines

Toward the end of the past century, commentators observed that indeterminate sentenc-

ing permitted vast discretion and was largely open ended (Frankel, 1973). This led to the

espousal of establishing specific criteria to guide judicial sentencing decisions (Tonry,

1987). One popular method was the formulation of sentencing guidelines (von Hirsch,

Tonry, & Knapp, 1987). Here, a commission or other body representing both the legal sys-

tem and general public develops standards for sentencing (von Hirsch & Greene, 1993).

The resultant guidelines generally require legislative approval and can be advisory or pre-

sumptive, based on past sentencing practices, designed to change past policies or even

reflect a new philosophy of sentencing (Miethe & Moore, 1985). Across the board, such

initiatives were designed to standardize sentencing and promote uniformity (Lubitz &

Ross, 2001).

Yet after more than 20 years of sentencing guidelines, some notable inconsistencies have

emerged. For example, in some instances, guidelines moderate sentencing policy and ratio-

nalize it, bringing sentencing outcomes into closer alignment with sentencing goals than

they were previously (Miethe & Moore, 1985), as was historically the case in Minnesota.

In others, they appear to augment preexisting problems such as increasing extralegal dis-

parity (e.g., by defendant race) and/or prison overcrowding, as has been shown under the

federal sentencing guidelines (Tonry, 1996). Although studies evaluating individual guide-

line effectiveness abound (e.g., D’Alessio & Stolzenberg, 1995; Hofer, Loeffler, Blackwell,

& Valentino, 2004; Ulmer & Johnson, 2004), there is a decided dearth of research explor-

ing how they compare to one another (Frase, 2005; Kramer et al., 1989) or why some func-

tion as intended whereas others seem to cause more problems than they solve (von Hirsch

& Greene, 1993). Given that jurisdictions contemplating sentencing guidelines actively

look to those that already have them for guidance (SCWG, 2008; Tonry & Hatlestad, 1997),

some formal comparison of how existing guidelines have affected sentencing outcomes is

imperative.

Commentators have observed that political environment influences guideline effective-

ness. von Hirsch and Greene (1993) argued that sentencing commissions unable to exercise

independence and linked to partisan agendas produce highly politicized and subsequently

ineffective guidelines. They contended that jurisdictional history, the appointing authori-

ties’ level of politicization, the presence of alternate sentencing structures (e.g., mandatory

minimum statutes), and the specific rationale(s) and purpose(s) behind guideline formation

(e.g., disparity reduction, discretion control) all influence guideline effectiveness. Certainly,

the aforementioned factors can constrain sentencing commission choices. For example,

although the majority of U.S. guidelines employ a grid-based structure, rationales behind

implementing guidelines are much less standardized. Justifications include minimizing

sentence disparity by extralegal factors (Martin, 1984), controlling “unfettered” judicial

discretion (Miethe & Moore, 1985), reducing escalating prison populations (Kirkpatrick,

1992), enhancing penalties, and becoming “tough on crime” (Truitt, Rhodes, Kling, &

McMullen, 2001). Moreover, some systems have clear, unambiguous objectives, whereas

others have multiple, conflicting goals (Wooldredge & Griffin, 2005). Such variation in

rationales, which is a natural by-product of the independence of the different states and

their legislatures as formally established under the U.S. Constitution, means that not all

guidelines are created equal.

Beyond this, the bodies formulating guidelines (generally called commissions) also vary

in their composition, means of appointment, term length, experience with the criminal jus-

tice system, and political visibility. Although one benefit expected of the commission

model was to shelter guideline development from political pressures or special interests

(von Hirsch et al., 1987), this advantage rarely materialized in practice (Martin, 1984; von

Hirsch & Greene, 1993). Commissions remain accountable to the politicians and legisla-

tures that create them and appoint their membership. Such entities can also reject, approve,

or modify the guidelines or impair their operation with mandatory minimum statutes.

Moreover, commissions still depend on these bodies for financial support. Thus, commis-

sions remain vulnerable to political pressure and politicization (von Hirsch & Greene,

1993). How these entities respond to such pressure can have a significant impact over the

sentencing policies they produce (Barkow, 2005) as well as the sentences meted out under

them. Such observations furnish criteria for empirically comparing and assessing sentencing

outcomes both within and between guideline jurisdictions. Below, we apply two divergent

perspectives, focal concerns and populist punitiveness, to devise a framework in which to

couch and refine the above assertions, transforming them into testable hypotheses.

352 Criminal Justice Review