SENTENCING RESEARCH FOR SENTENCING REFORM

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EDITORIAL INTRODUCTION

SENTENCING RESEARCH FOR SENTENCINGREFORM

In this special section of Criminology & Public Policy, we explore themeaning and likely impacts of recent U.S. Supreme Court rulings on crimi-nal sentencing. The three articles published here by Bushway and Piehl(2007), Frase (2007), and Hofer (2007) and the two outstanding reactionessays by Piquero (2007) and Hunt (2007) demonstrate the value, limits,and challenges of research to evaluate the impacts of sentencing reforms. Ithink they also demonstrate why it is now more important than ever tomove from evaluation to better understanding sentencing as a foundationfor future reforms of sentencing.

Since the early 1970s sentencing research has focused almost exclusivelyon the concept of unwarranted disparity in sentencing. Prompted by ear-lier work that suggested substantial impacts of race on sentences anddemonstrated the essential chance nature of sentencing, researchers beganto explore how social science methods could assist courts in restricting dis-parity in sentencing. Quickly many states created sentencing commissionsthat specified what factors should drive sentences, and social scientistsdeveloped ways to operationalize those factors. Sentencing research dur-ing the past 30 years has largely been directed at determining the effective-ness of the guidelines and at how they could be improved within thecontext of their legal foundations. I believe this work has been among themost important modern contributions criminologists have made to theoperation of the criminal justice system. Yet this work generated twoproblems for research on sentencing: (1) It led to estimates of the effectsof the impacts of specific factors on poorly specified models of sentencing;and (2) it diverted our attention from sentencing to sentencing reform—asif we could reform sentencing without more fully understanding it. Therecent Supreme Court decisions discussed in the following articles andreaction essays will force us (as all of the contributors to this section sug-gest in different ways) to address both of these problems.

Both of these problems derive from the fact that much of contemporaryresearch on sentencing is limited by the data that sentencing commissionscollect and make available to researchers. No one familiar with real sen-tencing, even in presumptive guideline jurisdictions, would argue thatsentences are given by judges using only the elements contained in guide-lines. Yet researchers will claim they can estimate the effect of, for exam-ple, race by controlling for all other elements in the guideline database asif that was all that influenced sentencing. Our understanding of sentencing

VOLUME 6 NUMBER 3 2007 PP 399–402 R


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has been limited by the narrow view we have taken of what and who influ-ences sentencing1—the limit being what is available from the sentencingdatabase. United States v. Booker [U.S. 220 (2005)] and Blakely v. Wash-ington [124 S. Ct. 2531 (2004) (O’Connor, S., dissenting)] draw attention tothe fact that whatever is used in sentencing should be subject to reviewand debate. Although the justices think of this as a legal standard to bemet, we as researchers should recognize that our goal is the same—under-standing all of the factors and actors that actually determine criminalsentences.

The limits we have placed on ourselves in doing research on sentencingwere appropriate as long as the question was whether the guidelines work.Now the question is, once again, what determines a particular sentence?The model for this research is to be found in death penalty research not inthe sentencing research model of the last 30 years. Until our analysis ofsentencing is more complete, we will be unable to meet the standard thatall of our authors describe in different ways and the standard set by thecourt—it has been proven—by a legal and or scientific standard.

The articles and essays that follow are not meant to be doomsday tombs.The actions of the Supreme Court may cause problems for some sentenc-ing reforms, but they will benefit sentencing research if they result inresearch that includes the role of charging in the process, expand the rangeand depth of variables we test as predictors of sentence (including theidentification of the judge and her relevant characteristics), and require usto spend more effort in systematizing our research by developing empiri-cally grounded theories of sentencing. If we do this, we will have a betterunderstanding of sentencing, can be more confident in our statementsabout unwarranted disparity, and recommend reforms that have a strongerresearch foundation.

This may be especially true as we try to understand departures fromguidelines. A departure is only a departure within the framework of aguideline system. Departures are, after all, a legal sentence. Especiallynow, whatever determines a departure must be established in court. How-ever, my experience is that most departures (which are downward depar-tures) are endorsed by all parties involved (what are sometimes referredto as ABA pleas) and/or reflect deficiencies in the prosecutor’s case(weakness of the evidence). From the norms of the court, these are notdepartures but sentences that reflect the notions of justice in that court.The rigidity of guideline systems (i.e., the use of grids and limited numbersof variables in determining prescribed sentences) produces the concept of

1. A notable exception to this is in the study of the imposition of the death pen-alty where researchers have gone well beyond easily available data to capture compre-hensive data depicting what and who determines when death is requested and imposed.


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departures, which has little if any meaning in the real world of sentencing.Imagine if we approached sentencing as a more dynamic system in whichwe allowed judges to select from a list of factors that could be used insentencing and had been demonstrated to predict desired sentencing out-comes and met the legal standard for proving those factors existed in aparticular case, provided judges with historical data on sentences for thosewith the constellation of factors selected by the judge, allowed the judge toselect a sentence from the range established by statute, and monitoredsentencing at the judge level to search for disparity—would there be anydepartures? I think not. Disparity could be addressed; sentencing wouldbe more purpose driven, and research would focus on the determinants ofsentencing not the operation of a necessarily poorly specified model of thismost important criminal justice process.

The articles in this section raise these issues and many others for me.They address with great care issues raised for our field by court decisionsthat have already greatly impacted sentencing and sentencing reform.They have forced me to rethink what I consider to be important issues forcriminologists to consider in doing sentencing research. For that I am verygrateful.

CHARLES F. WELLFORDUniversity of Maryland

Senior Editor

REFERENCES

Bushway, Shawn D. and Anne Morrison Piehl2007 Social science research and the legal threat to presumptive sentencing

guidelines. Criminology & Public Policy. This issue.

Frase, Richard S.2007 The Apprendi–Blakely cases: Sentencing reform counter-revolution?

Criminology & Public Policy. This issue.

Hofer, Paul J.2007 United States v. Booker as a natural experiment: Using empirical research

to inform the federal sentencing policy debate. Criminology & PublicPolicy. This issue.

Hunt, Kim Steven2007 Standards of evidence. Criminology & Public Policy. This issue.

Piquero, Nicole Leeper2007 What about organizational defendants? They’re affected as well. Crimi-

nology & Public Policy. This issue.


402 EDITORIAL INTRODUCTION

Charles Wellford is Professor of Criminology and Criminal Justice at the Universityof Maryland, Vice Chair of the Maryland Criminal Sentencing Policy Commission, andpast president of the American Society of Criminology.

Documents

SENTENCING RESEARCH FOR SENTENCING REFORM