Sentencing guidelines and prison population growth.

AuthorMarvell, Thomas B.


This paper explores the relationship between sentencing guidelines and prison populations in nine states. The guidelines are associated with declines in prison population growth in the six states where legislators decreed that guideline framers consider prison capacity when establishing guidelines for prison sentence lengths. In some states the guideline laws alone appear to have caused prison population growth to moderate, but in others the guidelines were probably only one aspect of a larger policy to limit prison expansion.

  1. Introduction

    One of the most significant trends in criminal justice is the growing emphasis on imprisonment. Legislators have continuously responded to constituent fears by establishing longer sentences or mandatory minimum sentences for wide varieties of crimes and criminals.(1) As a result, United States prison populations have increased nearly 400% in the twenty-five years from 1968 to 1993.(2)

    Sentencing guidelines have emerged as important moderating influences on this trend. Although their original purpose was to reduce sentencing disparity, the guidelines have acquired a second function in several states: to limit prison population growth by tailoring sentences to prison capacity. Legislators who either worried about prison costs or were not persuaded that more imprisonment effectively reduced crime required the guideline authors to consider prison capacity.(3)

    Presumptive sentencing guidelines are sentence ranges based mainly on the severity of the crime and the defendant's criminal history. The trial judge must either impose a sentence within the range or give written reasons for departing from it.(4) By 1990 (the cut-off date for laws evaluated in this article), nine states had statewide presumptive sentencing guidelines. They are: Delaware (effective 10 October 1987), Florida (effective 1 October 1983), Michigan (effective 1 March 1984), Minnesota (effective 1 May 1980), Oregon (effective 1 November 1989), Pennsylvania (effective 22 July 1982), Tennessee (effective 1 November 1989), Washington (effective 1 July 1984), and Wisconsin (effective 1 November 1985).(5)

    The initial step towards creating sentencing guidelines occurred when state legislatures (in Michigan, the Supreme Court) created a sentencing commission.(6) The commission drafted guidelines, and in six states those guidelines could go into effect without legislative approval.(7) According to Professor Albert Alschuler, this procedure allows the non-elective commissions to serve as buffers, allowing legislators to avoid public clamor for stiffer sentences.(8)

    Enabling legislation in six of the nine states charged sentencing commissions, directly in five states and indirectly in one, to consider prison capacity when drafting guidelines. The law creating the Minnesota sentencing commission states: "In establishing the sentencing guidelines, the commission shall take into substantial consideration current sentencing and release practices and correctional resources, including but not limited to the capacities of local and state correctional facilities."(9) The Florida law contains virtually the same language: "In establishing the sentencing guidelines, the commission shall take into substantial consideration current sentencing and release practices and correctional resources, including but not limited to the capacities of local and state correctional facilities."(10) In Washington, if the commission recommended guidelines that probably would result in a prison population above capacity, it had to submit to the legislature a second set of guidelines consistent with capacity;(11) in practice, however, the commission's initial recommendation was consistent with capacity.(12) The Tennessee legislature directed its commission don to formulate guidelines "consistent with ... a prison capacity figure arrived at by taking ninety-five percent (95%) of the present constitutional capacity of the prison system and adding any new prison beds constructed...."(13) The Oregon commission had to "take into consideration ... the effective capacity of state and local corrections facilities,"(14) and limiting prison population growth was probably the most important reason for creating sentencing guidelines in that state.(15) Finally, the Delaware legislation, although not mentioning prison capacity specifically, directed the commission to give "due regard for resources availability and cost."(16) Presumably, resources availability includes prison capacity.

    Three of the nine states did not include prison capacity among the criteria. The Pennsylvania legislature considered such a provision, but decided not to include it, and the sentencing commission did not factor in prison capacity.(17) In fact, the lawmakers rejected the commission's initial proposal (even though it would have increased prison populations substantially); instead, the guidelines became law only after the commission further toughened sentences.(18) The charge to the Michigan sentencing commission concerned only sentencing fairness.(19) The Wisconsin sentencing commission law does not mention prison capacity,(20) although controlling prison population growth later become part of the commission's efforts.(21)

    Descriptions of the guideline development process suggest that the commissions generally followed legislative mandates to consider prison capacity when formulating guidelines, especially by limiting imprisonment for non-violent crimes, although they sometimes made corresponding increases for violent crimes.(22) Thus, the question for the present study is whether these legislative directives have effectively moderated prison population growth.(23)

    Commentators differ on the issue of whether guidelines actually affected prison population growth. Washington and Minnesota prison populations flattened out for several years after those states initiated guidelines, while nationwide figures continued to grow. Professors Tonry and Alschuler considered these laws successes in this respect, but Alschuler questioned whether this effect is typical of other guideline states.(24) In contrast, Joachim Savelsberg faults the Minnesota guideline commission for failing to realize its goal of keeping prison population below capacity,(25) and David Boerner concluded that the guidelines might not have the effect assumed earlier after discovering that Washington increased prison populations by more than fifty percent in 1990-92.(26) Most commentators generally view the Florida guidelines as failures in most respects, including their inability to hold prison population in check.(27)

  2. Research Design

    This study estimates the impact of sentencing guidelines on prisons by employing the multiple time series design, which many consider the best procedure for evaluating state laws when a random experiment is not feasible.(28) The multiple time series design combines data from all states over nearly two decades. Dependent variables in the regressions are prison admissions and population in each state, and the independent variables include dummy variables representing the sentencing guidelines laws.(29) Among other benefits, the multiple time series design provides a large number of degrees of freedom, controls for the analysis of individual state law, and facilitates the use of control variables.(30)

    The standard regression procedure for multiple time series data is the Fixed Effects Model.(31) Its main feature is the inclusion of dummy variables for each state and each year, which control for...

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