Thursday, August 24, 2006

So You Want to Structure Sentencing? Part II

Part I discussed the decision to pursue sentencing guidelines. Here we take up the issue of “To Grid or Not to Grid.” (You might notice a little overlap here as Mike and I are not joined at the hip, but have similar ideas about a lot of this -- see posts below)

Tom asked whether the grid approach to guidelines is preferable to some other method. That is an interesting question, and worthy of a deep thinker. Unfortunately for you, we’re all you’ve got here, and we expect to fall somewhat short of “deep thinker” status.

Sentencing Grids are a matrix usually consisting of a vertical axis, offense severity (and possibly other characteristics of the current offense), and a horizontal axis, prior criminal record (the main offender characteristic of interest, the one that most studies find dominates the judicial sentencing decision regarding the characteristics of the individual defendant).

Sentencing grids are the common choice for a guideline format in the US, since Minnesota’s system was developed in the late 70’s. The most detailed and complex, I think it’s fair to say, is the U.S. federal sentencing guidelines (see training example here and here), a 256-cell matrix with many other factors to consider. Most other grid-based schemes are simpler (The District of Columbia has two grids – here and here - and a total of 60 cells - Why we chose a grid is another story.)

However, a sentencing grid is not the only scheme. Wisconsin (example here) and Ohio (here) have gone a different direction that still considers offense severity and prior criminal record, but has a more narrative-based approach. These seem like very thoughtful schemes to me. In many ways these systems require more of judges in terms of articulating their reasons and purposes, and this has always been an issue in grid systems (e.g., reasons for departure from the grid), and I assume it is an issue for non-grid systems. Delaware's guideline system is not really a grid, but is focused on a five-level continuum of sanctions that is also quite interesting to me, and seems to embrace the principles of graduated sanctions (“stepping up” and “stepping down”) that are prominent in drug courts, for example.

Virginia (where I was research director in the ‘90’s) is not a grid but a series of factors that are scored and the final score determines both the in/out decision and the sentence length (example here). This is a sophisticated approach that is highly quantitative (Again emphasizing the need for good data – See Part I of this series). Again, it mostly focuses on the same sorts of factors one sees in grids (mostly aspects of offense severity/harm and prior criminal record) and my own opinion is that it is sort of a multi-dimensional grid, somewhat more complex but still a variation on a grid (They might disagree with that characterization – but there you go).

In Part I, we already mentioned that there are some non-grid initiatives in other countries (here, here, here, etc.).

Grids are sometimes dismissed as “cookie cutter justice.” This characterization, in my opinion, is generally unfair (Take the bait - an opportunity of reader reaction!). Even a simple grid can address many of the most important purposes of sentencing – just deserts, culpability of the offender, harm to the victim, public safety through incapacitation or specific deterrence (Prior record - found on all grids – is the best predictor of future risk to public safety in any study with which I am familiar), etc. They may even be directed at other goals such as restoration of the victim and the community, although I’m not sure any grids have gone far down this path to date.

Finally, sentencing guidelines systems are complex and context specific. There is no “right way” but there are better and worse ways and local context, politics, considerations regarding judicial discretion, whether or not there will be appellate review, etc. etc. etc. Grids can make for bad policy, but that doesn’t mean too much as a guide to other jurisdictions, as far as I am concerned. The quality of the grid usually reflects the dedication of the actors that put it together, their ability to strike reasonable compromise, etc. Now getting a diverse group of citizens, legislators and public safety professionals to agree on a particular sentencing scheme – Whew, that’s the tough part!

1 comment:

neil said...

I note your link to the Sentencing Commission for Scotland. This body is no longer in existence, "functus" is, I believe the rather appropriate Scots legal term. It was never intended to be a permanent body and completed its work in late 2006. The final report of the Commission which is available on the website and to which I would provide a link if I had the technical expertise, recommended the establishment of an Advisory Panel for sentencing along the lines of the English SAP model. The manifestos of two of the main political parties in Scotland (Scottish National party and Scottish Labour Party) in the run up to the May 2007 elections contained a commitment to establish a Sentencing Council with powers to establish sentencing guidelines. A minority government was formed by the SNP following the elections but there has not yet been any announcement concerning a Sentencing Council/Commission.

Congratulations on the site which is hugely informative and very helpful to those of us in jurisdictions outsde the US which may be thinking about sentencing reform.

Professor Neil Hutton
former member of the Sentencing Commission for Scotland