Sentencing Outcomes Under Competing But Coexisting Sentencing Interventions: Untying The Gordian Knot

• Author: Paula M. Kautt,Miriam A. Delone
• DOI: 10.1177/0734016806290138
• Published date: 01 June 2006
• Date: 01 June 2006
• Subject Matter: Articles

Sentencing Outcomes Under

Competing But Coexisting

Sentencing Interventions:

Untying The Gordian Knot

Paula M. Kautt

Institute of Criminology, University of Cambridge

Miriam A. Delone

University of Nebraska Lincoln

The latest evolutionary phase of criminal sentencing is a return to determinate sentencing

structures. However, the concurrent application of sentencing guidelines and mandatory min-

imum statutes in various jurisdictions often distorts and convolutes evaluations of such inter-

ventions’ effectiveness. To remedy this problem, the effects of such distinct reforms must be

separated from one another. Previous research has been unsuccessful in accomplishing this

task. The authors attempt to remedy this deficiency by using 1997-1998 federal sentencing

data to isolate the effects of the minima from those of the guidelines and assessing how the

predictors and conditioners of sentencing outcomes vary between them. The authors find sev-

eral significant and some unexpected differences in the effect of predictors across models of

incarceration and sentence length for the two intervention types.

Keywords: sentencing; sentencing guidelines; mandatory minimum statutes; determinate sen-

tencing; federal courts; judicial decision making; drug offenses

When Alexander the Great came to the city of Gordium, he encountered an unusual

puzzle in the form of a wagon bound to a tree by an intricate knot. Oracle prophecy

dictated that whomsoever could loose the wagon from this Gordian knot was destined to

rule all of Asia. However, despite years of attempts, the riddle had yet to be solved.

Alexander, wanting very much to be the foretold conqueror, faced a dilemma.

Unraveling current determinate sentencing outcomes is a modern, albeit less grandiose,

parallel to Alexander’s predicament. In the United States today, many court systems (both

state and federal) concurrently operate under two distinct determinate sentencing strategies—

sentencing guidelines and mandatory minimum statutes (Bureau of Justice Assistance

[BJA], 1998). This coexistence can confound evaluations of sentencing outcomes because

the effects of one initiative are not separated from those of the other, making it difficult to

discern the impact of either individual intervention. Although many states currently employ

both interventions (e.g. Pennsylvania, Minnesota, Ohio, Washington), this problem is par-

ticularly salient to the federal system, which, until quite recently,1operated under stringent

and presumptive variations of these two strategies.

Although determinate sentencing is not a new idea, this modern reality of coexisting—and

in some instances competing—determinate sentencing strategies is a relatively recent

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Criminal Justice Review

Volume 31 Number 2

June 2006 105-131

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development. Yet, unlike the Gordian knot of legend, few have attempted to solve the puzzle

posed by such coapplication. In fact, much of the research in this area is either unable to

separate the influence of such externally imposed interventions (General Accounting

Office, 1992) or, more commonly, focuses on the effects of one while ignoring the other

(Pasko, 2002; Steffensmeier & Demuth, 2000; Ulmer & Johnson, 2004). Although this lat-

ter neglect is understandable for offense areas where there is minimal strategy overlap, for

offense types where there is often substantial overlap (such as drug offenses), such disre-

gard limits and biases our understanding of determinate sentencing outcomes. Simply,

without disaggregating the effects of coexisting determinate sentencing strategies, it is

impossible to determine either how the impact of one intervention affects sentencing out-

comes or the operation of the other intervention (and vice versa). Yet empirical evaluations

have not to date determined whether one structure negates the other’s effects or, if in fact,

the interventions enhance one another’s capacity to achieve the goals for which they were

intended. Clearly, it is crucial that researchers disentangle the dynamic of coexisting inter-

ventions before assessing whether such sentencing reforms can be termed either successes

or failures. Only after this knot is unraveled and the independent effects of such interven-

tions identified can the impact of determinate sentencing reforms be fully understood in

both practical and theoretical terms.

The current research seeks to accomplish this task by examining the federal system,

arguably the most high profile coupling of structured sentencing interventions. Given the

wide use and prevalence of drug-related mandatory minimum statutes at the federal level,

we use drug offense data2from fiscal year 1997-1998 to isolate and separate the predictors

of sentencing outcomes under the coexisting federal sentencing guidelines (hereafter

Guidelines) and federal mandatory minimum statutes (hereafter Minima).3We argue that

the threads of “perceptual shorthand” (outlined under perspectives such as focal concerns

and causal attribution) and the applicable structured sentencing interventions (e.g., guide-

lines or mandatory minima) together bind criminal sentencing outcomes, constituting a vir-

tual Gordian knot of sentencing.

Determinate Sentencing Strategies

Recent years have seen a wide proliferation of determinate sentencing strategies, the

most common of which have been sentencing guidelines and mandatory minima (BJA,

1998). Although these strategies are often used in tandem, they are in fact based on distinct

and, some argue, competing sentencing rationales. Although several rationales have been

used to justify them, sentencing guidelines were primarily undertaken, to reduce the

extralegal disparity present under previous indeterminate strategies by standardizing sanctions

(Tonry, 1996). Extralegal disparity is present when case attributes not considered legally

relevant to the case (e.g., defendant race, marital status, or employment) significantly affect

the outcome, even after legally relevant factors are adequately controlled (Johnson, 2005;

Mitchell & MacKenzie, 2005).4Although sentencing guidelines can either be advisory or

presumptive (Doob, 1995) and the rationales behind them vary, most U.S. permutations

rely on a grid of offense seriousness and criminal history axes (often supplemented by a

wide array of departure and adjustment criteria) to direct judges to the appropriate sentence

106 Criminal Justice Review