The Complexities of Prior Record, Race, Ethnicity, and Policy

• Published date: 01 December 2008
• Author: Matthew S. Crow
• Date: 01 December 2008
• DOI: 10.1177/0734016808320709
• Subject Matter: Articles

502

The Complexities of Prior Record,

Race, Ethnicity, and Policy

Interactive Effects in Sentencing

Matthew S. Crow

University of West Florida

Using sentencing data from 1994 to 2002, spanning two different sentencing policies, this study

examines the complex relationship between felony offenders’ prior record, race/ethnicity,

current offense, and sentencing outcomes. Expanding on past research, this study incorporates

multiple dimensions of prior record and analyzes the differential impact of these dimensions

across race/ethnicity and offense type. Unlike previous research, the current study examines

these complex effects across different sentencing policies. The findings suggest that sentencing

authorities’ calculations of risk and dangerousness may not be based solely on legal

considerations such as prior record and offense type or on extralegal factors such as race and

ethnicity. Instead, it appears that a complex interplay exists between these legal and extralegal

characteristics. Furthermore, the importance of policy change with regard to prior record and

race/ethnicity is highlighted by the findings.

Keywords: sentencing; prior record; race; ethnicity; sentencing policy

Prior criminal record, along with current offense seriousness, is consistently one of the

most salient factors in sentencing research (Kleck, 1981; Spohn, 2000; Zatz, 1987). In

addition, sentencing guidelines across the nation give great weight to the criminal history of

an offender in sentence calculations. An offender’s prior record is thought to be an important

indicator of both culpability and future dangerousness (Steffensmeier & Demuth, 2000, 2001;

Steffensmeier, Ulmer, & Kramer, 1998). In addition, criminal record is viewed as a key deter-

minant of sentencing outcomes under multiple sentencing philosophies, including modified

deserts-based rationales (von Hirsch, 1976), which currently dominate many sentencing poli-

cies nationwide (Tonry, 1996). Regardless of the logical defensibility of assigning such sig-

nificance to prior record under prevailing sentencing philosophies (Singer, 1979), the

importance of criminal history as a determinant of sentencing outcomes is well established

(Albonetti, 1991; Blumstein, Cohen, Martin, & Tonry, 1983; Kleck, 1981).

Whereas an offender’s prior record is afforded substantial weight in sentencing calcula-

tions, research has suggested considerable complexity in the nature of criminal history’s

effects on sentencing outcomes. Although the utilization of prior criminal record as a deter-

minant of sentences is, arguably, justifiable under most sentencing philosophies, problems

Author’s Note: Correspondence concerning this article should be addressed to Matthew S. Crow, Department

of Criminal Justice and Legal Studies, University of West Florida, 11000 University Parkway, Pensacola, FL

32514, e-mail: mcrow@uwf.edu.

Criminal Justice Review

Volume 33 Number 4

December 2008 502-523

© 2008 Georgia State University

Research Foundation, Inc.

10.1177/0734016808320709

http://cjr.sagepub.com

hosted at

http://online.sagepub.com

Crow / Complexities of Prior Record, Race, Ethnicity, and Policy 503

of equity arise if this important legally relevant variable is not used by decision makers in

a uniform manner for different types of offenders. This is particularly true if the effects of

an offender’s criminal history differ depending on the race of the offender.

The current study examines the complicated nature of prior criminal record as a deter-

minant of sentencing outcomes. Previous research suggests that this complexity exists in

relation to several issues. First, examining the effects of prior record involves decisions

regarding the measure to be utilized. Not all measures of prior record are created equal

(Welch, Gruhl, & Spohn, 1984). For example, Welch et al. (1984) provide evidence that

measures of prior felony conviction and prior incarceration are significantly related to sen-

tencing outcomes, whereas measures of prior arrest are not statistically associated with sen-

tencing outcomes. Second, the effects of criminal history may differ across race and

ethnicity. In other words, evidence of interactions involving race/ethnicity and prior record

on sentencing outcomes exists throughout the literature (Spohn, 2000). Finally, there is also

evidence that race interacts with current offense type, the primary legally relevant influence

on sentencing outcomes (Albonetti, 1997; Klein, Petersilia, & Turner, 1990; Kramer &

Steffensmeier, 1993). This complexity suggests a multidimensional nature regarding the

effects of prior record on sentencing outcomes. Multidimensionality relates to the different

impact of various measures of prior record as well as the interactive effects of prior record.

The research reported here expands on this past research regarding the multidimension-

ality of prior record in sentencing in several ways. First, the analysis is conducted on con-

temporary sentencing data over an 8-year time span. Most analyses that primarily focus on

prior record utilize cases sentenced prior to 1990 (Spohn & Welch, 1987; Vigorita, 2001;

Welch et al., 1984). Second, the data employed for this study capture sentencing under two

different sentencing-guideline systems. Most previous studies examined the complex influ-

ences of prior record in indeterminate or nonguideline jurisdictions. Given the explicit

inclusion of prior record in most jurisdictions’ guidelines, it is important to revisit the mul-

tidimensionality of prior record under different guidelines.

To this end, it is important to note that Engen and Gainey (2000) argue that under sen-

tencing guidelines, “the rules have changed” regarding the modeling of prior record. They

contend that to properly model prior-record effects (along with offense severity) the guide-

lines’ presumptive sentence should be utilized, because guidelines do not just quantify

these legally relevant variables but actually prescribe sentences (Engen & Gainey, 2000).

Although their argument is compelling and should be considered in much sentencing

research, the author of the current study follows a different path for modeling prior record.

This analysis examines multiple dimensions of prior record, rather than utilizing the pre-

sumptive sentence, because the complexity of the impact of various types of prior record is

of interest here. Even within sentencing guidelines there is usually considerable room for

variability in outcomes. The position presented in this article contends that prior record has

a complex relationship with sentencing outcomes that cannot be limited to its contribution

to a presumptive sentence. Furthermore, several states do not utilize sentencing guidelines,

and the possibility exists that some states that currently operate under guideline systems

may need to revise or even abandon their guidelines in light of recent Supreme Court deci-

sions.1Therefore, it is useful to examine prior record in detail to gain a better understand-

ing of the complexity of its influence under different policies.