Sentencing on the Evidence

• Author: Elizabeth Griffiths,Esther Nir
• Published date: 01 May 2018
• Date: 01 May 2018
• DOI: http://doi.org/10.1177/0887403416635248
• Subject Matter: Articles

Criminal Justice Policy Review

2018, Vol. 29(4) 365 –390

© The Author(s) 2016

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DOI: 10.1177/0887403416635248

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Article

Sentencing on the Evidence

Esther Nir1 and Elizabeth Griffiths1

Abstract

The type and quantity of evidence in a case is a critical factor for deciding guilt but

should have little or no influence on the sentencing determinations of judges post

conviction; this is because case evidence goes to guilt decisions by triers of fact,

whereas sentences are imposed upon those already convicted. This study examines

the effects of evidentiary type and the total quantity of physical evidence in a case on

length of custodial sentence. The results demonstrate that violent felony cases with

forensic evidence and those cases with more varied pieces of physical evidence result

in longer custodial sentences for convicted defendants. Thus, the findings indicate that

inculpatory evidence in criminal trials has enduring effects post conviction and, more

broadly, suggest that judicial discretion at sentencing is, at least in part, influenced by

the judge’s confidence in the defendant’s guilt.

Keywords

sentence length, evidence, sentencing disparity, forensic, punishment

Criminologists and legal scholars have routinely lamented the substantial sentencing

disparities that exist in the processing of criminal cases. Despite having been con-

victed of like offenses, defendants with similar criminal backgrounds tried in federal

and state court systems receive widely disparate sentences (Ulmer, 2012; Wooldredge,

2010). Various rationales have been posited for these disparities, including the struc-

ture of sentencing guidelines (Frankel, 1972; Kramer & Ulmer, 1996), the mode of

conviction (N. J. King, Soulé, Steen, & Weidner, 2005; Piehl & Bushway, 2007), racial

and ethnic discrimination (Albonetti, 1997; Scott, 2011; Steffensmeier & Demuth,

2000), local organizational constraints (Ulmer, 2012), and various idiosyncrasies in

the discretionary power of judges, among other sources of difference (Frankel, 1972;

Wooldredge, 2010). With respect to judicial discretion, history shows that, of the many

1Rutgers University–Newark, NJ, USA

Corresponding Author:

Esther Nir, School of Criminal Justice, Rutgers University–Newark, 123 Washington Street, Newark, NJ

07102, USA.

Email: esther.nir@rutgers.edu

635248CJPXXX10.1177/0887403416635248Criminal Justice Policy ReviewNir and Grifths

research-article2016

366 Criminal Justice Policy Review 29(4)

relevant sentencing factors, “each is capable of being answered, and is answered by

sentencing judges, in contradictory or conflicting or at least differing ways” (Frankel,

1972, p. 5). Indeed,

judges carry their own experiences, biases, and foibles with them into the role; they vary

widely in their explicit views and “principles” affecting sentencing; they vary, too, in the

accidents of birth and biography generating the guilts, the fears, and the rages that affect

almost all of us at times and in ways we often cannot know. (p. 7)1

But whatever their causes, sentencing disparities result in a host of negative conse-

quences, including the uneven administration of punishment, perceptions that the sys-

tem is unjust, and resentment among prisoners, among others (Lynch, 2009; Tonry,

1996; Walker, 1993).

In theory, sentencing determinations should rely on legally relevant sentencing fac-

tors, including the seriousness of the offense and the defendant’s prior criminal record

(Roberts, 1994; von Hirsch, 1992). In practice, however, extralegal factors such as the

defendant’s race, age, and gender have been found to influence the punitiveness of

sentences (Doerner & Demuth, 2010; Feldmeyer & Ulmer, 2011; Johnson, Stewart,

Pickett, & Gertz, 2011; R. D. Peterson & Hagan, 1984). Although less attention has

been directed at it as a source of disparity, there is some evidence that the confidence

a judge has in a jury’s verdict may also affect the length of imposed sentences (Gertner,

1999). For example, in the case of U.S. v. Juarez-Ortega (1989), codefendants Juarez-

Ortega and DeLuna were charged and tried together for two counts of distributing

cocaine and one count of carrying a firearm during a drug trafficking offense; the

weapons charge mandated a 5-year minimum consecutive sentence. DeLuna was con-

victed of all three charges, whereas Juarez-Ortega was convicted on both cocaine

charges but acquitted on the weapons charge. Yet the judge imposed identical sen-

tences upon each defendant. In justifying the sentence, the judge stated,

I have been disappointed in jury verdicts before but that’s one of the most important ones,

because what it did, it set up a disparity in result between the two defendants . . . This

firearm was used. [The jury] had to absolutely disregard the testimony of the government

agent for no reason—no reason. (U.S. v. Juarez-Ortega, 1989, pp. 748-749)

Thus, the judge’s disagreement with the jury’s verdict for Juarez-Ortega resulted in

both defendants being subject to the same penalty despite being convicted on varied

counts (Gertner, 1999). The outcome of U.S. v. Juarez-Ortega suggests that judicial

confidence in the correctness of a jury’s guilty verdict may influence sentence

severity.2

Confidence in the verdict may be partially or even primarily a function of the

judge’s evaluation of the evidence garnered against the defendant. Indeed, a small

body of research has spread beyond the characteristics of defendants and victims,

courtroom working groups, and social and organizational contexts to explore the role

of case-specific features, including strength of evidence, on case disposition, and, to a