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1
Making Sense of Sentencing:
A Review and Critique
of Sentencing Research
John Hagan and Kristin Bumiller
One of the few certain things about criminal sentencing
is that it is an increasingly common subject of empirical
research. The bibliography of this paper lists more than
40 studies of sentencing published in the past decade.
These studies are notable not only for number but also
for their diversity of methods and results. Although
early studies of sentencing relied heavily on the use of
contingency tables, a striking feature of the past decade
has been the widespread application of multivariate
techniques, including the development of structural
equation models and log linear analyses of the sentencing
process. The results have often been provocative,
touching most sensitively on issues of racial
discrimination in sentencing.
The results of recent studies are provocative not only
because they raise important issues of equality before
the law but also because they frequently appear to
contradict one another. To cite only one recent example,
while Eisenstein and Jacob (1977:v) conclude from a study
of sentencing in Baltimore, Chicago, and Detroit that
"blacks are not treated worse than whites . . . ,"
Lizotte (1978:577) uses some of the same data from
Chicago to calculate that ". . . the 'cost' of being a
black laborer is an additional 8.06 months of prison
sentence. . . ." The purpose of this paper is to
critically review these and other findings of sentencing
research and to outline directions this research
literature might usefully take in the future.
1
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2
TWO INCIPIENT THEORIES OF SENTENCING
The literature on criminal sentencing is not guided by a
dominant theory or set of theories. There have been
attempts by sociologists to tie this literature to the
debate between consensus and conflict perspectives (see
Hagan et al., 1979; Chiricos and Waldo, 1975; Lizotte,
1978) and to link it to a labeling perspective on crime
and deviance (Bernstein et al., 1977a). These perspec
tives do not have wide currency outside sociology,
however, so only a small part of the literature can be
tied directly to these theoretical frameworks. We argue
in this paper that there are two incipient theoretical
orientations implicit in the assumptions that sociolegal
researchers bring to this area of work. We believe that
an awareness of these two orientations--the individual-
processual approach and the structural-contextual
approach--is helpful to understanding developments in
this research literature.
Early sentencing research observed bivariate relation-
ships between attributes like race and sentencing
outcomes (i.e., type and length of sentence). These
studies (e.g., E. Johnson, 1957) were particularly
concerned with demonstrating the differential use of the
death penalty against blacks in the southern United
States. These studies are important today as a signi-
ficant source of historical-comparative data; however,
legitimate questions have been raised about their
tendency to equate correlation with cause in imputing
sentencing differentials to discrimination, without
controlling relevant "legal" variables (see Green, 1961;
Wolfgang and Riedel, 1973). As subsequent studies began
to take additional variables into account, initially with
tabular techniques, what we call an individual-processual
approach to sentencing research began to take form.
In the 1960s this research largely used contingency
tables to test whether attributes like race remained
significantly correlated with sentence outcome when type
of offense and/or prior record were held constant.
Although this research labored under the inherent
liabilities of tabular techniques, particularly problems
of controlling for more than one or two variables
simultaneously, it served the important function (at
least implicitly) of encouraging researchers to develop
models of the sentencing process. For example, the
burden of Edward Green's (1961, 1964) early and important
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work on sentencing was to argue that when "legal"
variables like offense type and prior record are taken
into account, the relationship between race and sentence
disappears. Implicit in this argument is the assumption
that prior record and current offense mediate (in a
causal and sequential sense) the race-sentence relation-
ship. Later arguments have focused on whether race
linked patterns of offense type and prior record should
be taken as reflecting differences in criminal behavior
or as reflecting earlier experiences of differential
treatment by legal authorities Afar "Y=m~l~ =~^ =
and ~wlamr~ 1 IRAQ=`
~ ~-Or ~` I ~--
_~___, ~ ,. Both positions could be correct;
what is important for our immediate purposes is that in
either case it is assumed that offense type and prior
record play a causally intervening role in the process by
which judges reach sentencing decisions. Two different
types of processes are involved, but each is an example
of an individual-processual approach to the Anal v.~i .~ And
understanding of sentencing data.
.. . . .
Mucn ot the sentencing research of the 1970S involved
variations and elaborations of individual-processual
models of the sentencing process. Most significant in
the development of this approach was the introduction of
a number of important "case-processing variables" into
these models and the application of more sophisticated
multivariate techniques in the effort to test the fit of
these models with actual case data. Among the new
variables considered were pretrial bail decisions (e.g.,
Bernstein et al., 1977a), plea and charging decisions
(e.g., Hagan, 1975c), and the presentence recommendations
of probation officers and prosecutors (e.g., Hagan,
1975b; Hagan et al., 1979). These studies made
increasingly explicit the premise that sentencing is an
end result of a decision-making process that involves
offenders moving through a series of potentially
important stages in a complex criminal justice system.
Farrell and Swigert (1978a:442) make this point well:
"The highly structured nature of the judicial system
lends itself to a systematic analysis of legal -
processing. The discrete ordering of events--the social
characteristics of the defendants prior to their entry
into the system, their accumulated criminal histories,
the type of legal representation, pretrial release, the
mode of adjudication, and final disposition--constitutes
a series of stages that allows the researcher to assert
the causal sequence of relationships." Structural
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4
equation models and log linear techniques have provided
the technology for modeling this complicated Process.
Criminal sentencing is not only a matter of processing
individuals through a criminal justice system. Both the
individuals and the system occupy variable positions or
locations within a social structure, so individual
processing decisions can vary by social context. This
point has been recognized implicitly in some past
sentencing research, and it is made increasingly explicit
in recent work. For example, the early studies of
capital punishment often attempted to measure variation
in the use of capital punishment against individuals
across periods of time (E. Johnson, 1957), in different
jurisdictions (Bedau, 1964, 1965), and according to
whether the crime was interor intraracial (Wolfgang and
Riedel, 1973) in character (i.e., interracial crimes
represent a conflict across assumed status positions in
American society). These studies also suffered from the
limitations we have associated with the application of
tabular techniques, and they were undertaken with little
awareness of one another, thus limiting the full develop-
ment of their contextual implications.
Since 1977, a number of studies have emerged that
begin to exploit the possibilities of a structural-
contextual approach. Combining data sets from several
jurisdictions, Eisenstein and Jacob (1977), Levin (1977)
and Balbus (1973) have linked variations in the political
environment to sentencing behavior. Lizotte (1978) has
identified the class as well as racial positions of
individuals in the social structure and linked these to
sentencing outcomes. Most recently Hagan et al. (1980)
have distinguished proactive and reactive court organi-
of
zations and considered their impact on the sentencing
white-collar offenders in 10 federal district courts,
while Hagan (1982) has examined the consequences of
corporate entities compared with individuals acting
victim-complainants in the criminal justice process. All
of these studies add some feature of structural and
contextual variation to their consideration of the
individual processing that leads to sentencing decisions.
It should be emphasized that what we call the
individual-processual and structural-contextual
approaches are not mutually exclusive. Indeed, each of
these approaches is increasingly persuasive as it
includes variables emphasized in the other. For example,
it is impossible to be sure whether a political
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5
environment correlated with sentencing outcomes is a
cause of those differences in outcome unless the
variables considered in an individual-processual approach
are taken into account. Similarly, it is impossible to
know the generalizability of individual-processual
variables apart from structural and contextual consider-
ations. Thus the limitations on combining these
approaches are clearly not conceptual but rather have to
do with the availability of comparable kinds of data
across contexts. We return to this problem several times
in the course of this paper, for it is central to the
advancement of this area of work. Meanwhile, we proceed
to a discussion of a variety of more specific problems
that plague the various kinds of sentencing research we
have introduced.
DEFINITIONAL PROBLEMS IN SENTENCING RESEARCH
Confusion of central concepts has often made the
collation of findings from sentencing studies difficult.
The most important of these problems has involved the
attempt to draw distinctions between legal and extralegal
factors in sentencing decisions. Much of the sentencing
research of the 1960 s and early 1970s was premised on
such a distinction (see Green, 1961). The distinction
frequently drawn was that offense seriousness (as
indicated by the maximum sentence allowed by law) and
prior conviction record (often written into the law as a
basis for more severe sentences) were "legal" variables
and that race, sex, age, and other characteristics not
included in the law were "extralegal." Difficulties with
this distinction cut in at least two directions.
On one hand it has been noted that what are called
legal variables vary from jurisdiction to jurisdiction
(i.e., rankings of offense seriousness vary among
states), that what is legal at one stage of decision
making may not be at another (e.g., community ties may be
considered relevant for bail decisions and irrelevant at
sentencing), and that what is legal at the sentencing
stage (e.g., prior record) may be the product of
discrimination at earlier stages (e.g., by the police)
(see Bernstein et al., 1977b). On the other hand, it can
also be noted that what are called extralegal variables
are directly or indirectly built into some parts of the
criminal law. For example, probation statutes often
include consideration of the offender's age, and there
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6
remain some state statutes (e.g., many prostitution laws)
that justify differential treatment by sex. Many
statutes encourage judicial consideration of an
offender's employment record at various stages of the
criminal justice process (see, for example, the language
of the criminal code bill that passed the Senate
Judiciary Committee in the first session of the 19th
Congress), a factor that works disproportionately against
black offenders. Even though the Fourteenth Amendment to
the U.S. Constitution provides that No state shall . . .
deny to any person within its jurisdiction the equal
protection of the laws," the law seems to provide plenty
of latitude to do just that. In sum, the law is an
ambiguous guide as to those factors that may legitimately
influence sentencing decisions.
This issue of legitimacy is complicated further by the
fact that it has empirical and moral as well as legal
dimensions. The empirical dimension involves the issue
of what the American public thinks should influence
sentencing, while the moral dimension is concerned with
what in some more ultimate sense actually should
influence sentencing. We speak to the former rather than
the latter issue in this paper, and we deal with it
primarily in a contemporary context, focusing first on
contemporary American judgments about influences on
sentencing. We also note that such judgments may vary
across time and place in the social structure (see Hagan
and Albonetti, 1982). To offer a specific example, what
are thought to be legitimate influences on sentences by
most Americans today may be significantly different from
what were thought to be legitimate influences earlier in
this century in the South. Conceptions of what consti-
tutes criminal justice change.
To acknowledge the moral and variable nature of what
influences on sentencing are regarded as acceptable, we
speak in this paper of legitimized and nonlegitimized,
rather than of legal and extralegal influences on
sentencing, and we regard the content of these categories
as the product of ongoing social and legal processes.
Legitimized and nonlegitimized influences are those
within a given social structure and context that the
public thinks should and should not affect sentence
severity. Although there obviously is no method for
unambiguously sorting all influences on sentencing into
these two categories, social survey techniques are one
important source of information on what influences are
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7
and are not regarded as legitimate by a surveyed
population.
The top half of Table l-1 presents data on public
attitudes toward nine factors that may influence
sentencing decisions. These data come from a national
survey of American adults interviewed in 1977 to measure
their perceptions of and experiences with local, state,
and federal courts as well as their more general
attitudes toward the administration of justice (see
Inter-University Consortium for Political and Social
Research, 1979). These data seem to indicate two rather
different kinds of concerns. The first is that offenders
with a prior record, offenders previously convicted of
the same crime, and offenders convicted of a violent
crime should receive tougher sentences than offenders who
have done none of these things. Well over 80 percent of
the respondents endorsed tougher sentencing of these
kinds of offenders. The second concern is that whether
an offender is well-to-do, poor, or of minority status
should have no influence on sentencing; similar levels of
support are apparent for this position. In terms of
measured attitudes, it is clear that the American public
regards prior record and type of offense as legitimate
influences on sentencing and that they do not recard
-
economic and ethnic characteristics as legitimate
influences on sentencing.
The bottom half of Table l-l summarizes the responses
of elite members of the community--i.e., judges, lawyers,
community leaders--who were surveyed separately. A
similar pattern is apparent. In the remainder of this
paper we speak of the variables in Table 1-1 as
legitimized and nonlegitimized influences on sentencing
decisions. Of course, as we noted above, these data
cannot resolve in any ultimate moral sense the issue of
whether the legitimacy of variables such as prior record
is or is not deserved. In addition, all relevant
influences are not considered in this survey. For
example, these data do not inform us as to public
attitudes toward the influence on sentencing of an
offender's employment record.
It is also important to note that the data presented
in Table 1-1 indicate that the American public as well as
some of its elite members believe that neither of its
primary concerns is translated fully into the admin-
istration of criminal justice in America. In general
these data indicate that both groups believe that
legitimized factors do not result in sentences as severe
OCR for page 8
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OCR for page 9
9
as they should be, and that nonlegitimized factors have
an influence on sentences that they should not have. For
example, while over 80 percent of the respondents thought
being well-to-do should have no influence on sentencing,
fewer than 30 percent thought this was actually the
case. There is good evidence that a substantial part of
the American public perceives its system of criminal
justice to be unjust, at least to some degree. Table 1-2
makes the additional point that black Americans are
particularly likely to perceive minority offenders as
receiving tougher sentences than whites (see also Hagan
and Albonetti, 1982). The Pearson's r for this
relationship is .18. This may not be surprising, but it
does help to focus the concerns of this review.
The latter finding leads to the final concern of this
section: Past research has confused discussions of
discretion, disparity, and discrimination in sentencing.
For our purposes we regard discretion as the latitude of
decision provided by law to someone in imposing a
sentence we regard discrimination as a pattern of
sentencing regarded as unfair, disadvantaging, and
prejudicial in origin; and we regard disparity as a form
of unequal treatment that is often of unexplained cause
and is at least incongruous, if not unfair and
disadvantaging, in consequence. An illustration of the
confusion that can occur in the use of these terms is
Farrell and Swigert's conclusion (1978a:450) from an
important study of the impact of prior offense record on
sentencing that "the use of a prior record as meaningful
information in the disposition of a criminal case
TABLE 1-2 Perceived Influence of Minority Status on
Sentencing by Race of Respondent
Influence
Much Little No Little Much
Race Lighter Lighter Influence Tougher TougherTotal
White 4.7 14.7 49.0 26.3 5.4
(76) (237) (791) (424) (87)1,615
Black 1.7 3.9 40.4 32.6 21.3
(3) (7) (72) (58) (38)178
NOTE: Ganuna = .45; Pearson's r = .18.
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10
compounds the discretion of prior adjudications." This
use of the term discretion renders the conclusion of this
study unclear: Do the authors mean only that the
latitude of decision available to authorities has been
increased in a legally acceptable manner? The context
suggests that what is really meant is that reliance on
prior record as a factor in sentencing institutionalizes
a form of discrimination. In any case, our purpose in
defining these terms is to make our use of them as
unambiguous as possible.
METHODOLOGICAL PROBLEMS IN SENTENCING RESEARCH
Ideally, social science research is a commutative
enterprise: Research problems are refined in their
definition, increasing amounts of data are brought to
bear, findings accumulate, and knowledge increases. The
reality of sentencing research falls far short of this
ideal. In this section we consider some of the
methodological sources of this shortfall.
Alternative Measures of Sentence Severity
One problem in the commutation of results from sentencing
studies is that they operationalize the dependent
variable--sentence--in a variety of ways. The only clear
area of agreement on this issue seems to be an implicit
consensus that sentences can be ordered in terms of
severity; the type of ordering applied, however, varies
considerably from study to study. These orderings range
from a basic binary division between those offenders
sentenced to prison versus those who are not (see, for
example, Clarke and Koch, 1976) to Uhlman and walker's
93-point scale that attempts to differentiate in
considerable detail ". . . between and among degrees of
deprivation of individual freedom and the varying
severity of nonprison sanctions" (1980:327 and
Appendix). Somewhere between these two approaches is the
position taken by Hagan et al. (1979:516), who
operationalize the concept of sentence severity by using
two different binary codings of the same set of sentence
outcomes. The first coding separates prison sentences
from all others, while the second coding separates the
most lenient disposition in their data set, deferred
sentences, from all others. The assumption, confirmed in
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11
their subsequent analysis, is that if there is a single
dimension of severity, then we should expect to find
similar effects of opposite signs when the two coding s
are used to examine the determinants of sentencing. our
purpose is not to favor one or another of the preceding
approaches, but to make clear the diversity of dependent
measures that have been used in sentencing studies. In
order to cumulate findings from these studies, it is
necessary to adopt a common standard, or variety of
standards, to be used in some meaningful way across
studies. Reanalysis of the original data may be the only
definitive way of doing this.
Sampling Problems
Another problem that complicates the cumulation of
results from sentencing studies is the variety of court
settings and stages in the criminal justice system at
which this research is done. Sentencing studies have
been done in federal, state, and municipal courts,
drawing samples from locations in the system as early as
prosecutors' offices and as late as corrections
institutions. There are good arguments for drawing
samples from all of these settings and stages. Hagan et
al. (1980) argue that federal court samples are important
because they include larger numbers of white-collar
offenders than lower courts, while Feeley (1979) argues
that studies of municipal courts are needed because 90-95
percent of all cases are handled in these lower courts,
with the result that "Next to the police, the lower
criminal courts play the most important role in forming
citizen impressions of the American system of criminal
justice" (p. xv).
With similar conviction, arguments are made for
collecting data relevant to sentencing decisions at
various stages of the criminal justice system. On one
hand it is suggested that focusing exclusively on
offenders sentenced to prison allows consideration of a
homogeneous set of dispositions that can be compared in a
straightforward way. On the other hand it is suggested
that considering a broader range of offenders, to whom
various kinds of sentences and other kinds of sanctions
are attached, may reduce problems of bias resulting from
nonrandom selection processes that may characterize the
criminal justice system, from the earliest stages of
detection through the imposition of final dispositions.
OCR for page 44
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Representative terms from entire chapter:
sentencing research
