Sentencing Drug Court Failures: Judicial Considerations With Increased Offender Information
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| DOI | 10.1177/0887403418814159 |
| Author | Benjamin R. Gibbs |
| Subject Matter | Articles |
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Article
Criminal Justice Policy Review
2020, Vol. 31(2) 237 –261
Sentencing Drug
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Considerations With
Increased Offender
Information
Benjamin R. Gibbs1
Abstract
This study explores the influential predictors of sentence severity within a sample of
drug court failures. This sample is unique, in that, judges possess greater amounts of
offender information at the time of sentencing, relative to conventional adjudications.
Due to defendants’ participation in a drug court program, judges possessed offender
program performance information in addition to traditionally assessed criminogenic
and offender indicators. Data were collected from 320 individuals who participated,
yet failed, in Midwestern adult felony drug court program. Results suggest that, in
these instances, judicial sentencing decisions were influenced by case and program
performance characteristics. Moreover, judges who oversaw defendants in the
program sentenced participant failures more harshly than judges who had no affiliation
with the drug court or offender prior to sentencing.
Keywords
sentencing, drug courts, drug offenders, punishment
Introduction
In judicial sentencing decisions, judges consider several factors when assessing offender
culpability and likelihood of offender recidivism (Steffensmeier, Ulmer, & Kramer, 1998).
1Ball State University, Muncie, IN, USA
Corresponding Author:
Benjamin R. Gibbs, Department of Criminal Justice and Criminology, Ball State University, North Quad
278, Muncie, IN 47306, USA.
Email: brgibbs@bsu.edu
238
Criminal Justice Policy Review 31(2)
The existing research in criminal sentencing demonstrates judges predominantly
take into account legally relevant variables, such as offense severity and criminal his-
tory in their decision-making process (Bushway & Piehl, 2001; Koons-Witt, Sevigny,
Burrow, & Hester, 2014; Steffensmeier & Demuth, 2006; Ulmer & Johnson, 2004),
while extralegal factors have also shown to be influential in final determinations of
criminal sanctions (Koons-Witt et al., 2014; Spohn, 2009; Steffensmeier & Demuth,
2006). The consideration of legally irrelevant defendant characteristics, such as age,
race, and gender, are thought to be the latent result of limited offender information
judges possess at the time of sentencing (Steffensmeier et al., 1998). Couched in causal
attribution (Albonetti, 1991) and the focal concerns’ perspective (Steffensmeier et al.,
1998), scholars suggest that judges, in part, unintentionally assess defendants’ threat to
the community based on these extralegal factors (Doerner & Demuth, 2010; Koons-
Witt et al., 2014; Rodriguez, Curry, & Lee, 2006).
Prior research on focal concerns have found that age (Ulmer & Johnson, 2004),
gender (Koons-Witt et al., 2014; Spohn, 2009; Steffensmeier & Demuth, 2006; Ulmer
& Johnson, 2004), and race/ethnicity (Koons-Witt et al., 2014; Steffensmeier &
Demuth, 2006; Ulmer & Johnson, 2004) are often predictors in the sentencing deci-
sions, yet the samples used in these studies do not vary in their posited interaction
between judge and defendant. Judges usually have little interaction with defendants
prior to sentencing and typically have incomplete information regarding offender
backgrounds with the exception of presentence investigation reports (Hoffman, 2000;
Wheeler, Weisburd, & Bode, 1982). As a result, judges are forced to make assessments
based on limited information regarding defendants’ likelihood of recidivism or threat
to the community, leading to illegitimate considerations of offender demographics.
An alternative to traditional models of criminal justice processing are specialty
courts, such as drug courts, which have taken a more interactive approach to judicial
participation and adjudication. Under this model, offenders are supervised in the com-
munity, frequently interact with judges, and in instances of failure, are subject to the
full statutory menu of sentencing options (Hora, Schma, & Rosenthal, 1999). An
essential component of the drug court model is judicial status hearings, where offend-
ers detail their progress through interactions with drug court judges (Senjo & Leip,
2001). These hearings, along with participant program performance, provide judges
with greater information and understanding of offenders and their life circumstances
(Hoffman, 2000; Hora et al., 1999). From a theoretical standpoint, judges may be less
reliant on a stereotype to assess offenders’ threat to the community, thus limiting the
consideration of extralegal factors in sentencing decisions. An increase in offender
information available to sentencing judges is not without its potential drawbacks.
Critics argue drug court performance information may unjustly lessen the likelihood
or disqualify a defendant from traditional probation sentences upon program failure
(Hoffman, 2000; Hora et al., 1999). Moreover, drug court judges who also sentence
program failures may hold biases against defendants based on information collected
during the normal course of drug court operations (Satal, 1998).
To date, there has been no research focusing on sentencing outcomes of drug court
participants; therefore, the purpose of this study is to examine the factors influencing
Gibbs
239
judicial decision-making in criminal sentencing with a sample of drug court partici-
pant failures. I analyzed sentencing outcomes, both the decision to incarcerate and
length of sentence decision, of 320 drug court participants who failed the program to
determine the direct influence legal, extralegal, and program performance characteris-
tics have on criminal sentencing. In addition, a measure to capture increased interac-
tion and familiarity a judge has with an offender was included in an attempt to
determine its effect on the sentencing decision. Specifically, I focused on (1) what are
the individual direct effects legal, extralegal, and program performance characteris-
tics have on sentencing drug court failures? (2) What is the effect increased interac-
tion between a judge and offender has on criminal sentencing?
The current research contributes to the existing literature on criminal sentencing and
drug courts in a number of ways. First, this research addresses the gap in the existing lit-
erature by analyzing sentencing outcomes among drug court participants. I am not aware
of any existing studies focusing on criminal sentencing that uses such a sample. Second,
program performance measures were analyzed to assess their impact on judicial decision-
making at the sentencing phase. In addition, this research addresses the criticism that drug
court judges sentence their failed participants more severely than judges not intimately
involved with the drug court program. This study sample includes observations who dif-
fered in their sentencing experiences. Two-thirds of the sample were sentenced by their
drug court judge, while the remaining observations faced final adjudication from an out-
side judge who lacked familiarity with offenders being sentenced relative to the drug
court judges. This split sample allowed me to examine the effect judicial–offender famil-
iarity had on sentence severity. Finally, this study adds to the research by Holleran and
Spohn (2004) by including jail as one of the sentencing categories rather than the dichoto-
mous in/out outcomes often analyzed in prior sentencing studies.
Theoretical Framework
This research is guided by the focal concerns perspective, which posits that judges
have three primary concerns when sentencing defendants—blameworthiness, protec-
tion of the community, and practical constraints and consequences (Steffensmeier
et al., 1998). Unlike prior perspectives that attempt to explain sentencing disparities
solely based on offender demographics (Anderson, 1976; Bobo & Hutchings, 1996;
Chesney-Lind, 1986; Ulmer & Johnson, 2004), focal concerns posit that judges con-
sider a host of crime-specific and offender characteristics when assessing individual
culpability and threat to the community. Yet, this assessment is handicapped due to the
limited offender information judges possess at the time of sentencing. Subsequently,
judges develop a “perceptual shorthand,” using stereotypes and generalizations to
assess individuals’ likelihood of recidivism. Albonetti (1991) described this evaluative
process as uncertainty avoidance/causal attribution. The stereotypes considered by
judges are causal attributes, linking extralegal offender characteristics to offenders’
inclination toward future criminality. These attributes are assessed within a bounded
rationality, where judges base sentencing decisions on prior experiences to generate
satisfactory contemporary results, but not necessarily ideal ones. The focal concerns’
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Criminal Justice Policy Review 31(2)
perspective suggests that judges will engage in this bounded rationality to best address
their concerns of blameworthiness, protections of the community, and practicality of
their resource constraints.
The judicial concern of blameworthiness centers on legal elements, such as serious-
ness of offense and harm caused by the offender. Those convicted of serious crimes
can expect severe sentences. ...
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