Punishing for the Past (Sometimes): Judicial Perspectives on Criminal History Enhancements

• Date: 01 September 2021
• DOI: 10.1177/00328855211029663
• Published date: 01 September 2021
• Subject Matter: Articles

https://doi.org/10.1177/00328855211029663

The Prison Journal

2021, Vol. 101(4) 443 –465

© 2021 SAGE Publications

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DOI: 10.1177/00328855211029663

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Article

Punishing for the Past

(Sometimes): Judicial

Perspectives on Criminal

History Enhancements

Rhys Hester1

Abstract

Prior criminal record is routinely cited as one of the primary determinants

of sentencing, and the common view is that prior record was a leading factor

in non-guidelines jurisdictions going back decades. Yet, recent findings from

a non-guidelines state failed to conform to this account. This study uses

interviews with judges from a non-guidelines state to understand the role

of prior record in sentencing in an unstructured sentencing state. This

study also reexamines some of the early sentencing guidelines formation

literature and finds some indications that pre-guidelines, prior record was

not universally an instrumental predictor of sentence length.

Keywords

sentencing, sentencing guidelines, prior record, criminal history

Introduction

Empirical sentencing research consistently cites prior record as one of the

strongest predictors of punishment outcomes (although there are suggestions

that the role of criminal history is more prominent in the U.S. than in some

1Clemson University, SC, USA

Corresponding Author:

Rhys Hester, Department of Sociology, Anthropology and Criminal Justice, Clemson

University, 139 Brackett Hall, Clemson, SC 29634, USA.

Email: RHYSH@clemson.edu

1029663TPJXXX10.1177/00328855211029663The Prison JournalHester

research-article2021

444 The Prison Journal 101(4)

other western jurisdictions, e.g., Lappi-Seppälä, 2011; Roberts & Sanchez,

2015). American scholars have considered criminal history an indispensable

control in modeling sentencing decisions for half a century. Beginning in the

late 1970s, sentencing guidelines systems formalized the role of prior record

in punishment by making it one of the two determinants of the recommended

sentence. As scholars have observed—“two legal variables—offense severity

and prior record—are associated most strongly with sentencing outcomes”

(Steffensmeier et al., 1998, p. 775), and “it is irrefutable that the primary

determinants of sentencing decisions are the seriousness of the offense and

the offender’s prior criminal record” (Spohn, 2000, p. 481).

Yet, recent empirical findings from a non-guidelines state revealed that

while criminal history was highly predictive of the decision to incarcerate, it

was not a significant predictor of the sentence length determination (Hester

& Hartman, 2017). These findings motivated the current study which exam-

ines the connection between prior record and punishment outside of sentenc-

ing guidelines through two distinct but complimentary approaches—first,

through a historical analysis of the early sentencing guidelines formation

documents from the 1970s and 1980s, and second, through qualitative inter-

views with a sample of non-guidelines trial judges.

The first statewide sentencing guidelines were adopted in the early 1980s,

with a sentencing grid as a defining feature. The grids harnessed two dimen-

sions—offense severity and prior record—to structure punishment ranges.

These early statewide systems often gathered data on past sentencing prac-

tices but formulated their own punishment recommendations in a prescriptive

fashion (Knapp, 1982; Kramer & Ulmer, 2009). Yet, they adopted the two-

dimensional grid approach seemingly as part and parcel of the decision to

develop guidelines. How the two-dimensional grid came to be has largely

been forgotten in the story of structured sentencing reform and potentially

has important substantive implications for the prominent role that prior

record has come to play in modern sentencing.

Exploring these issues of the origins of guidelines and the practices of

non-guidelines judges answers calls for more research in non-guidelines

jurisdictions (e.g., Engen, 2009). Guidelines research has dominated the sen-

tencing field for the past several decades (Ulmer, 2012). Prior record is indis-

putably a highly predictive factor in guidelines states where the guidelines

have prescribed its role as a determinative factor. (In fact, prior record effects

are often found in guidelines research even when controlling for the pre-

sumptive or recommended sentence.) But, two-thirds of U.S. states continue

to operate without guidelines (Frase, 2019), creating a “dark area” in our

understanding of how sentencing operates in most of the U.S.