Mitigating the Effect of a Criminal Record at Sentencing

• DOI: 10.1177/0887403412459542
• Date: 01 January 2014
• Author: Natalie R. Ortiz,Cassia Spohn
• Published date: 01 January 2014
• Subject Matter: Articles

Criminal Justice Policy Review

2014, Vol 25(1) 3 –28

© 2012 SAGE Publications

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DOI: 10.1177/0887403412459542

cjp.sagepub.com

459542CJP25110.1177/0887403412459542Cri

minal Justice Policy ReviewOrtiz and Spohn

1Arizona State University, Phoenix, AZ, USA

Corresponding Author:

Natalie R. Ortiz, School of Criminology and Criminal Justice, Arizona State University,

411 N. Central Ave., Suite 600, Phoenix, AZ 85004, USA.

Email: natalie.ortiz@asu.edu

Mitigating the Effect

of a Criminal Record

at Sentencing: Local

Life Circumstances and

Substantial Assistance

Departures Among

Recidivists in Federal Court

Natalie R. Ortiz1 and Cassia Spohn1

Abstract

The assumption in courts and sentencing research is that recidivists—or,

defendants with a criminal record who are facing new charges—are considered more

blameworthy and perceived as more dangerous by courtroom decision makers,

including prosecutors. Nagel and Schulhofer suggested that defendants with a prior

record may be viewed as sympathetic by federal prosecutors because of “human

factors,” leading to substantial assistance departures in these cases. We conceptualize

human factors as local life circumstances, or temporally bound situations that

make attributional statements about the defendant. We operationalize local life

circumstances in terms of employment status, financial responsibility to dependents,

and drug use, and determine whether these circumstances affect the likelihood of a

receiving a substantial assistance departure among defendants with an established

record of criminality. In addition to case characteristics, employment and drug use

increased the likelihood of a prosecutor-sponsored sentence departure among

recidivists in federal court.

Keywords

sentencing, drug offenders, prosecutors, criminal history

Article

4 Criminal Justice Policy Review 25(1)

Most central to the issue of criminal history is recidivism. While not all individuals

who have been convicted of a crime reoffend, a large number do, particularly offend-

ers who were sentenced to prison; moreover, they recidivate within a very short time

following release from prison (Langan & Levin, 2002; Spohn & Holleran, 2002).

Even among offenders who were not incarcerated on their initial conviction, allega-

tions of new crimes imply new court cases, new charges, and new prosecutions. The

dominating assumption is that recidivists—or, defendants with a criminal record who

are facing new charges—are considered more blameworthy and perceived as more

dangerous by courtroom decision makers, including prosecutors (Kramer & Ulmer,

2009; Steffensmeier, Ulmer, & Kramer, 1998; Ulmer, Kurlychek, & Kramer, 2007).

Despite such assumptions, empirical research focusing on recidivists, as a distinct

category of defendants, is limited. This is problematic because sentencing policies in

the 1990s not only accelerated the growth of the prison population but contributed also

to the proliferation of criminal records (Jacobs, 2006). Given the pervasiveness of

criminal records or criminal histories—1 in 33 adults was under some form of criminal

justice supervision at the end of 2010 (Glaze, 2011)—there is reason to suspect that

prosecutors may consider factors beyond a prior record in making decisions that affect

the sentencing of defendants with a prior record (Nagel & Schulhofer, 1992; Vigorita,

2001). For reasons that will be discussed, addressing the empirical void on the prose-

cution of recidivists is relevant for understanding prosecutorial decision making in the

federal court system under sentencing guidelines.

Theoretical Context of the Current Study

According to the “focal concerns” perspective, having prior convictions increases the

blameworthiness of defendants and signals that they are a threat to community safety

(Albonetti, 1991; Kramer & Ulmer, 2009; Steffensmeier et al., 1998; Wasik, 1987).

Such a position taken by courtroom actors, and to a different degree by policymakers,

translates to the philosophic principles of desert and utilitarianism. According to

retributive theory, recidivists are deserving of some form of punishment that is more

severe than that given to defendants without criminal records (Roberts, 1997).

Similarly, utilitarian justifications for punishment, including incapacitation and deter-

rence, justify the harsher punishments for recidivists that are mandated by sentencing

guidelines and various state laws on the grounds that such punishments reduce future

criminality and protect public safety (Kessler & Levitt, 1998).

In most state court systems with sentencing guidelines and in the federal system,

longer sentences for recidivists result from the fact that criminal history is one of the

two factors that determine the presumptive sentence (Kauder & Ostrom, 2008). In

states without sentencing guidelines, having a prior felony conviction may result in

more severe penalties through sentence enhancements (Kessler & Levitt, 1998). As a

circumstance with social relevance, a criminal record acts as a proxy for the defen-

dant’s moral character (Durham, 1987). Durham (1987) and others (Bridges & Steen,

1998; Roberts, 1997) maintain that a prior record makes an attributional statement that