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6 The Politics of Sentencing Reform: Sentencing Guidelines in Pennsylvania and Minnesota Susan E. Martin The 1970s were characterized by a variety of reforms designed to increase determinacy in criminal sentences. Among these reforms was the legislative creation of state sentencing commissions to develop and implement guide- lines to structure sentencing decisions. In 1978 two states, Minnesota and Pennsylvania, adopted this route to change.1 The Minnesota commission's guidelines were accepted and have been in effect since May 1980. The Pennsylvania legislature passed a resolution in April 1981 rejecting its commission's guidelines as submitted and asking for revisions within six months; revised guidelines were submitted in January 1982 and became effective in July 1982. This paper is an examination of the social, political, and organizational factors that influenced these events in Minnesota and Pennsylvania.2 Two limitations should be noted. First, the findings are preliminary; no data on implementation or on the impact of the guidelines in either state are examined. Second, generalizing the experience of these two states to other jurisdictions is highly conjectural given the diversity of social his- tories, sentencing structures, and political cultures. Examining the Pennsylvania and Minnesota experiences seems worthwhile nonetheless. At the very least it can provide a preliminary interpretation of the forces that shaped an ongoing institutional change. Such an inter- pretation may serve to indicate that the complexities of developing sentencing guidelines involve not only the 265
266 technical issues related to development of statistical models of past sentencing practices and projections of future prison populations, but also the political aspects of the policy-making process. The first section of this paper examines the central issues in sentencing reform. The second section reviews particular state and local issues: the legislative maneuvering and the resulting statute that created the sentencing guidelines commissions and their mandates. The third section describes the two statutes and the mandates of the Pennsylvania and Minnesota commissions. Section four examines the internal dynamics of each commission in interpreting its mandate, defining its tasks, and organizing its work; the guidelines each commission produced; and the key elements shaping the creation of guidelines in each state. The final section considers the role and effectiveness of interest groups and the activities of the commissions that shaped the reaction to the guidelines that each legislature received. DISPARITY, SEVERITY, AND THE DISTRIBUTION OF AUTHORITY: CENTRAL ISSUES IN SENTENCING REFORM Discontent with the goal of rehabilitation and the disparity resulting from indeterminate sentences led to a debate in many jurisdictions over three overlapping sets of questions. First, what is the proper goal of punish- ment? How should the competing goals of deterrence, incapacitation, rehabilitation, and retribution be ordered or balanced? Second, what should the criteria be for applying different types of sanctions--incarceration, community supervision, fines, or a combination of these? How severe a sanction is necessary to achieve the goal of the sentencer? Third, who should have authority to establish sentencing standards and to make individual sentencing decisions? Under indeterminate schemes legislatures established very broad policies--generally through statements of purpose, establishment of maximum sentences, and author- ization of general sentencing procedures--and left vast discretion in the hands of sentencing judges and parole boards to decide on the type and amount of punishment appropriate in individual cases. In such a system the goal of protecting society through the rehabilitation of criminal offenders and their incapacitation until they are rehabilitated are the principal considerations in
267 deciding whether to incarcerate and the length of imprisonment. The severity of the punishment depends more on the individual characteristics of the criminal than on the nature of the crime. It is expected that two offenders who have committed similar offenses might serve quite different prison terms, since release is contingent on evidence of reform. Disparity, or variation in sentences, is an accepted part of a system of indivi- dualized treatment for offenders. Such a system for a long time satisfied a wide spectrum of opinion. Liberals liked the purported rejection of the notion of retribution and the possi- bility of speedy release of offenders amenable to rehabilitation. Judges enjoyed wide authority but were relieved of responsibility for actual release decisions. Prison administrators had flexibility in controlling hostile inmates. Politicians could act irresponsibly in raising statutory penalties to appease public passion without affecting actual time served. In the early 1970s support for the prevailing system of indeterminate sentencing crumbled under a variety of criticisms. Civil libertarian and prisoners' rights groups initiated the attack, charging that the system gave unchecked discretion to paroling authorities, was based on inadequate assumptions about the predictability of human behavior, resulted in long and arbitrary sentences, and led to prisoner unrest and frustration. In addition, a widely publicized research review (Lipton et al., 1975) reporting that rehabilitation programs are ineffective undermined the rationale on which indeter- minacy rested. And rising crime rates led to demands for surer and stiffer sanctions against criminals to prevent crime. These criticisms led legislators and the legal and professional communities to seek to replace the indeterminate system with one that established explicit standards for the amount of punishment to be imposed under normal circumstances on persons convicted of different types of crimes. But establishment of explicit sentencing standards that control or structure discretion and reduce disparity opened the door to disagreement over the aims of punishment, who should establish the specific standards to be applied (the legislature, parole board, or another administrative body), how narrow and binding these standards should be, and how discretion to make individual sentencing decisions should be distributed among the judiciary, prison officials, and parole authorities.
268 In considering the goals, some writers (e.g., Wilson, 1975) have suggested that sentencing standards can improve the effectiveness of the criminal justice system in preventing crime through general deterrence and the incapacitation of offenders. Others (e.g., van Hirsch, 1976) view the principal aim of determinacy as making penalties more just, i.e., more closely apportioned to the blameworthiness of criminal conduct, by scaling punishments to the seriousness of crimes. These goals point toward different philosophical and practical concerns. The goals of deterrence and incapa- citation suggest standards that emphasize certainty, celerity, and (in some cases) greater severity of punishment. Disparity is objectionable because it undermines certainty. Von Hirsch's "just deserts approach seeking to make punishment commensurate with offenses is not concerned with random variation per se but with the establishment of norms, the elimination of unexplained variation from the norm, and the provision of reasons for variation that occurs. Any state's efforts to reconsider sentencing goals, redistribute discretionary authority, and determine the appropriate level of sanction are strongly affected by the distribution of discretion, the extent and nature of sentencing disparity, and the political influence of interest groups with a stake in the debate. These factors shape the legislative definition of the sentenc- ing problem and affect the outcome of reform efforts. LEGI SLATIVE POLITICS AND SENTENC ING REFORM Both the Minnesota and Pennsylvania legislatures strug- gled for four years over the question of distributing discretionary authority in establishing sentencing policy. And although in 1978 both states created sentencing guidelines commissions, existing institutional arrangements and thus the reasons for the resulting legislation differed. Minnesota Prior to 1978 Minnesota had an indeterminate sentencing law that divided decision-making authority between the courts and the parole board. The courts decided between probation and imprisonment and set the conditions of
269 probation, including a jail sentence, for offenders not sent to prison. The parole board had authority to release inmates on parole at any time prior to the completion of long maximum terms. Actual prison terms were relatively short, but parole decision making was capricious and arbitrary, particularly prior to the adoption of parole guidelines in 1976. Despite this reform effort, parole decision making became the primary target of sentencing reformers in a bitter three-way struggle among proponents of legislatively set flat-time sentences, presumptive guidelines to be established by a sentencing commission composed of judges, and continua- tion of the existing parole board control over the release decision. Throughout the struggle the senate leader was William McCutcheon, who introduced a flat-time sentencing bill in 1975. His initial proposal was not seriously considered but led to hearings and a flat-time sentencing bill that handily passed the Senate in 1976. The 1976 McCutcheon bill was seen as "tough on crime" (largely because MoCutcheon was a deputy police chief in St. Paul and because his initial proposal had been quite harsh), although it was designed to maintain the average time currently being served and the current level of prison populations. It would have eliminated the parole board but would not have affected judicial discretion over the probation decision. The McCutcheon bill was opposed in the house by Donald Moe, chairman of the committee to which it was referred, and brought to the house floor only through a parliamentary maneuver. After heated debate the house voted to defer the bill's effective date to permit "technical revisions," then passed it. The senate adopted the amended measure the next day; the governor vetoed it, however, citing "serious technical inadequacies."3 Observers speculated that Moe and corrections officials had convinced the governor to use the technical defect as a politically expedient reason for his veto. When the new legislature convened in 1977 the McCutcheon bill again sailed through the senate and was But momentum had shifted. sent to the house. McCutcheon's energies were directed elsewhere, and the opponents of flat-time sentencing had turned to Represen- tative Arnold Kempe, a conservative former supporter of the McCutcheon bill, to support an effort to develop sentencing guidelines. Kempe had read of the development of sentencing guidelines and drafted a bill to establish
270 a sentencing guidelines commission composed entirely of judges. The guideline sentence was to be the presumptive sentence, although a judge could depart from it by providing written reasons for doing so. He introduced the idea to Moe, who realized that he could accept this approach to determinate sentencing if he could shape the final bill to permit the parole board to determine sentence length. Another parliamentary maneuver permitted the Kempe and McCutcheon bills to move forward in the house as a single bill. When the house passed the Kempe version and the Senate rejected it, the matter was sent to a joint conference committee. The conference committee had to resolve three principal issues: whether the legislature or a commission would set sentencing policy; whether there would be a single or dual sentencing authority; and whether the single commission would be composed of judges or be a mixed group (see Table 6-1). Senate conferees, led by McCutcheon, supported abolition of the parole board as well as legislatively set flat-time sentences that left the dispositional decision in the hands of judges, shifting discretion from the correctional bureaucracy to the courts. The house conferees, however, were divided. Moe, fearful that legislative term-setting would ultimately increase sentence severity, advocated a dual concept with dispositional guidelines to be established by a sentencing commission and durational guidelines established by the parole authority. Kempe supported a single guidelines commission made up of judges that would design presumptive guidelines for both sentence disposition and duration. The compromise bill that emerged from committee established a single, legislatively authorized guidelines commission with a TABLE 6-1 Issues and Positions of Leaders in the Minnesota Legislative Struggle Discretion Structure Over Role of of Client Legislator Duration Parole Commission Severity Constituency McCutcheon Legislature Abolish -- No Police and I nerease Prosecutors Kempe Judiciary Abolish Single -- (Judiciary) Moe Administrative Retain Dual No Corrections Body Increase Bureaucracy
271 diverse membership. This commission was to determine sentence dispositions and durations, both of which would be presumptive. The guidelines alternative appeared to offer a rare acceptable compromise between fiscal conservatives and corrections liberals. It promised the most important changes or provisions that several key interest groups had sought, met other goals of those interest groups, or offered them a share in decision making. The compromise revolved around the allocation of decision-making authority within the criminal justice system, since once it was agreed that prison sentences would be of fixed duration, the key question became who would determine these durations. There was little explicit debate over the goals of punishment or what is an "appropriate" sentence because there was agreement that the overall level of severity would not be increased. Police and prosecutors had sought and won greater influence in shaping the sentencing decision and more predictable sentences for the "worst" offenders. The judiciary got structured discretion over sentence lengths rather than no discretion over them. To the corrections bureaucracy and the defense bar, less concerned with discretionary authority than with warding off increased severity, the guidelines seemed to offer a better prospect than legislatively set flat-time sentences. Even the parole board had won something--temporary survival and a seat on the sentencing commissions Pennsylvania In Pennsylvania the establishment of a sentencing guidelines commission was also a compromise, but it stemmed from a different set of pressures emanating from a different distribution of discretion. Pennsylvania judges set both maximum and minimum prison terms, the minimum permitted to be no more than half the maximum within wide statutory limits. The court also may determine whether to send offenders serving a maximum of 2-5 years (usually with a minimum of 1-2 1/2 years) to a local jail or state prison. The parole board has the authority to release offenders at any time after they have completed their minimum terms, and in fact had been releasing about 80 percent of state prisoners on completion of their minimum terms. Thus judges have authority over both the dispositional and sentence length
272 decisions while the parole board exercises limited discretion. This arrangement permits symbolically tough maximum sentences and relatively short minimums and has resulted in wide interdistrict disparity, as minimum sentences for urban offenders are more lenient than those given out in suburban and rural areas. This pattern of wide regional variation in the sentences and thus the actual minimum terms served by offenders across the state stems in large part from Pennsylvania's heterogeneity and strong traditions of local autonomy. It proved to be a major stumbling block in the development of statewide sentencing guidelines. Pressure for sentencing reform came from several sources, focused on efforts to reduce judicial discretion and increase sentence severity, and centered on proposals for a mandatory minimum sentencing law that had wide symbolic appeal by looking tough on crime but affected the sentences of only the most serious repeat felons. In 1976 the senate passed a mandatory minimum sentencing bill that was then rejected by the house of representa- tives on the last vote of the session. Opposition in the house came from both the Democratic chairman of the judiciary committee, Norman Berson, and the Republican leader on criminal justice matters, Anthony Scirica, both of whom opposed mandatory minimum sentences as too rigid and the senate bill as too severe and costly to implement. In the next session, having staved off the mandatory minimum bill by a slim margin and a parliamentary maneuver, Berson and Scirica adopted sentencing guide- lines as an alternative approach to sentencing reform. · . . . . . AS In Minnesota, the impasse Between the two legislative chambers was broken when the house attached the guide- lines bill to one already approved by the senate, resulting in conference committee negotiations. A final compromise, approved in the fall of 1978, established a sentencing commission to design guidelines for sentencing both felony and misdemeanor offenders. The proposed mandatory minimum sentencing legislation would have substantially increased prison populations and corrections system costs. The liberals' alternative, sentencing guidelines, promised reduction in judicial discretion without immediate costs, while obscuring the severity issue, an outcome that was a satisfactory compromise for all parties. Rural legislators and district attorneys were satisfied with greater certainty in sentencing as well as an opportunity to look tough on
273 crime at little cost. The Philadelphia district attorney (a rising political figure in the state) gained the promise of greater severity and certainty of incarcera- tion via guidelines as well as the inclusion of an interim sentencing guideline (to avoid the term mandator Y sentencing provision) for repeat person offenses and the right of the state to appeal a sentence. Prison offi- cials avoided the prospect of vast overcrowding posed by the mandatory minimum bill. Liberals had sought and won an opportunity to reduce the vast disparity and judicial abuses through a more comprehensive and flexible sentenc- ing reform than mandatory minimum sentences. The judiciary went along, viewing some change as imminent and guidelines as more flexible and less threatening than mandatory minimums. In the interim, the issue of severity was set aside as conservatives assumed that the guidelines would increase the severity of sentences; liberals viewed the legislation as a victory for struc- turing discretion without across-the-board increases in severity. TB STATUTES AND THE MANDATES OF THE COMMISSIONS The mandate of the Minnesota Sentencing Guidelines Commission (MSGC) was both more limited and more specific than that of the Pennsylvania Commission on Sentencing (PCS), making the task of the Minnesota commission more feasible. The MSGC was to determine the circumstances under which imprisonment is proper and to establish a presumptive fixed sentence for such cases based on "reasonable" offense and offender characteristics. In establishing the presumptive sentence, the commission was directed to "take into substantial consideration current sentencing and releasing practices and correctional resources including but not limited to the capacities of local and state correctional facilities. n was permitted to establish a range of up to 15 percent within which the presumptive sentence could vary. For sentences deviating from the applicable guideline sentence, the court was directed to make a written statement of the reasons for the departure. Only felons may go to prison in Minnesota so only felony sentences were to be addressed, although the commission was permitted but not required to design guidelines for nonimprisonment felony sentences. In the sentencing of misdemeanants and felons who would not go to state The commission
274 prison, the existing judicial discretion to determine the conditions of probation (including a jail term) might remain unaffected. Other provisions included the right of both the state and defendant to appeal sentences that are either stayed or imposed; the elimination of the parole board's authority to establish release dates for those imprisoned after May 1, 1980, the effective date of the guidelines unless they were rejected by the legisla- ture;4 establishment of good time earned at the rate of one day for every two days of good behavior in the institution; and provision for a separate sentencing hearing for convicted offenders. The commission's mandate was shaped in large part by the desire of reformers to eliminate the parole board's authority rather than reshape the entire sentencing system. Only those sentence durations formerly deter- mined by the parole board were to be set by the guide- lines (i.e., sentence duration for executed sentences). Once the conference committee had agreed that there was to be no increase in the net amount of imprisonment, a framework for resolving other issues of severity existed, and the provision directing the commission to consider prison capacity and past practice could be included in the statute at the prodding of the commissioner of corrections with little opposition or notice. The Pennsylvania commission's broad and ambitious mandate made the commission responsible for creating guideline sentences for both felony and misdemeanor offenses but left intact the parole board's authority The object of reform was the judiciary's vast discre- tionary authority. Supporters of mandatory minimum sentences had attempted to deal with the problem by rigidly fettering judges' dispositional authority in sentencing a limited but politically visible fraction of the offender population. But their solution, the 1976 bill as drafted, was so severe and inclusive that it could not feasibly be implemented. It was also viewed by liberals as inflexible and too narrow an approach to reducing disparity. These problems plus the existence of the option of imprisonment for misdemeanor I and II offenses led to the more inclusive mandate of the commission. This in turn put it in the position of attacking the discretion of the judiciary, a more powerful group than the parole authority, over the entire range of judicial authority. The legislature's conces- sion to the judiciary was to make the guidelines advisory .
275 rather than presumptive, leaving the actual degree to which they would be binding to resolution by the commis- sion and the appellate courts. This compromise thwarted the desire of the police and prosecutors for certainty and hampered reliable projection of the guidelines' impact on prison populations. The legislation made no mention of considering corrections facilities or costs, leaving the issue of severity effectively unresolved. The guidelines were to specify a orange of sentences ap- plicable to crimesH of a certain degree of seriousness, the range of sentences of increased severity for defen- dants previously convicted of felonies or of crimes involving a deadly weapon, and deviations from the range of applicable sentences due to the presence of aggravat- ing or mitigating circumstances. Sentences outside the guidelines required the judge to provide a written state- ment of the reasons for the deviation. Draft guidelines were to be published in the Pennsyl- vania Bulletin, followed by public hearings between 30 and 60 days later. The final (revised) guidelines were to be simultaneously published in the Pennsylvania Bulletin and submitted to the legislature; they would go into effect 90 days (subsequently amended to 180 days) after submission unless rejected in their entirety by a concurrent resolution of the general assembly. In brief, the Pennsylvania commission was expected to create guide- lines covering a broader range of offenses with less guidance than the Minnesota commission. And the Pennsyl- vania mandate passed on to the commission dilemmas that the divided legislature had been unable to resolve. INTERPRETING THE MANDATES AND CREATING GUIDELINES Each commission's guidelines were conditioned by the existing state traditions and political culture,5 the criminal justice system, the interest groups, and the mandate given by the statute itself. The viability and integrity of the guidelines and their acceptance by their legislatures were largely dependent on the effectiveness of each commission's membership, leadership, and staff in interpreting and carrying out its mandate, addressing policy choices, resolving differences, establishing and carrying out a strategy for achieving its tasks, and responding to the concerns of groups affected by the guidelines.
276 Membership, Leadership, and Staff The Minnesota Sentencing Guidelines Commission was to consist of the chief justice of the state supreme court or his designee and two judges appointed by the chief justice, two citizen members, a prosecutor and a publi defender appointed by the governor, the state commis- sioner of corrections, and the chairman of the state parole board.6 No legislators were included on the commission because the legislature had resolved the issue of the distribution of discretionary authority to establish sentencing policy, after an exhausting four- year battle, by creating the commission. The exclusion . . . Of legislators might have been politically disastrous, but several members had sufficiently strong personal ties to legislative leaders and experience in lobbying the legislature to avoid problems. Minnesota has tradition- ally included private citizens representing the public interest on policy-making bodies. Furthermore, the citizen chair appointed by the governor proved to be structurally freer to aggressively promote acceptance of the guidelines than a commission member representing a specific interest group would be. Membership for the . . . . . . . commissioner of corrections and the chairman of the parole board was a concession to the agencies whose activities were to be most directly affected by the guidelines. The membership of the former had the largely unintended virtues of ensuring the presence of a member of the governor's cabinet on the commission, providing access to the state house, and increasing the qovernor's stake in the commission's product. This proved important when the Republicans took over the governorship from the Democrats prior to submission of the guidelines to the legislature. The Pennsylvania Commission on Sentencing was to consist of four legislators; four judges appointed by the chief justice; and a prosecutor, a public defender, and a criminologist or law professor appointed by the governor. The exclusion of private citizens and inclusion of legislators was in keeping with Pennsyl- vania's political tradition of limited citizen participa- tion and of policy making as the province of professional politicians. The exclusion of the commissioner of corrections and chairman of the parole board (neither of whom had actively pressed for membership) subsequently limited the articulation of corrections system concerns and commission access to the governor. This limited
277 access was particularly unfortunate, since the commis- sion's three gubernatorial appointments had been made in the waning days of a Democratic administration that was succeeded by a new Republican governor. The leadership, internal dynamics, and staff affected decision making in each commission and contributed to the content of and reaction to the guidelines. Minnesota's chair, Jan Smaby, a citizen member with strong political ties and experience as a lobbyist, acted as an advocate of the guidelines. She met with numerous groups around the state and with the press to explain and sell the guidelines idea. Her consultative leadership style, political skills, and willingness to make the guidelines a personal crusade contributed to their acceptance. She and other commission members viewed the task of designing guidelines as an exercise in public policy development requiring the active involvement of groups to be affected by that policy. Although the commission was not without internal tensions, it functioned harmoniously for the most part and permitted itself to be guided by its staff. The MSGC staff was able to articulate clearly the complexity of the issues the commission faced, to focus the commission's attention on the policy choices, to provide a bridge between the language and concepts of social science and law as it made research findings accessible to nonsocial scientist commission members, and to press the commission to make decisions. In Pennsylvania the chair, Judge Richard Conaboy, was less involved than his Minnesota counterpart in the guideline development process and far more restrained in advocating their acceptance by interest groups and the legislature. His leadership style was probably affected by the combination of the pressure of other responsi- bilities when he was appointed to the federal bench in the middle of the guidelines development, his conception of the chairman's task as carrying out the legislature's mandate without "huckstering," and a sense of judicial propriety that restricted active advocacy on behalf of the guidelines. He did not treat the guidelines develop- ment as a political process, perhaps because his perspec- tive was shaped by judicial experience of independent decision making without challenge or compromise rather than legislative experience of constant consultation with interest groups and frequent compromise. The commis- sion's work was hindered by internal dissension, high absenteeism at meetings, weak leadership, personal animosities among members and toward staff, and resist
278 ance of members to reliance on data on past practice or on data projections indicating the implications of various policies for prison and jail populations as a guide to decision making. The staff had difficulty focusing commission discussion, articulating policy choices, presenting technical issues to members, and pressing the commission to make prompt decisions. The Guidelines: Construction Process and Their Content In both states the construction of the guidelines proceeded in several overlapping steps. The commission initially spent several months reading, discussing, and collecting data on existing sentencing practices in the state. Each commission adopted a single-guideline, grid-type format. s In each state ranking the severity of offenses was the first step in the actual construction process. Both commissions decided not to rely on existing statutory maximums and spent considerable time debating how offenses (felonies in Minnesota; all offenses in Pennsyl- vania) should be ranked. Minnesota divided all felonies into six generic groups for ranking within groups, then undertook an overall ranking. In Pennsylvania after initial difficulty the commission adopted a set of principles to guide the ranking exercise. In subsequent versions of the guidelines, the original ranks of many offenses were changed, but the ranking structure remained the same. Both commissions then divided the ranked crimes into 10 severity levels. The offense severity levels constituted one dimension of the grid. The second step was creation of a criminal history index, which was the other dimension of the grid. The MSGC quickly agreed to include prior felonies and the offender's custody status at the time of the current offense. It agreed to exclude explicitly all social status factors (e.g., education, marital status, and employment) in sentencing felony offenders (although judges continue to be free to consider these factors in establishing nonimprisonment sentences). Two other aspects were matters of considerable debate in Minnesota: the treatment of juvenile record, and of prior misde- meanors and gross misdemeanors. After a public hearing on juvenile record, the commission compromised by allowing limited use of juvenile offenses in the criminal
279 history index. Although the commission's research indicated that misdemeanors were not an explanatory factor in felony sentencing, the commission was uncomfor- table with their exclusion from the index. It adopted a weighted system permitting these offenses limited influence in the criminal history score. In the initial Pennsylvania guidelines the commission adopted a criminal history index in which prior offenses were weighted by seriousness.8 This index included juvenile record but only for offenses with a seriousness score of 6 or above. These offenses were then scored like adult felonies. There was recurrent debate about treatment of social status factors, an important element in judicial decision making in Pennsylvania. The commission's original guidelines after several divided votes excluded social status factors from both the criminal history score and a list of aggravating and mitigating circumstances for which departures from the guidelines were justified, but the commission made no statement in the guidelines with respect to this exclu- sion. The third guidelines explicitly permit their consideration. The third and fourth steps for the two commissions were drawing a disposition line and establishing sentence durations. When past practice failed to provide a clear pattern on which to base a disposition line with which commission members were comfortable, the MSGC staff began exploring the implications of using various philosophical models as guides. They drew four disposition lines, labeled "just deserts, n "modified just deserts," "incapa- citation,~ and "modified incapacitation,"9 and tested the implications of each line with respect to prison capacity. The labeling clarified the choices and facilitated decision making. The commission rejected the just deserts line because it would have overcrowded prisons and the two incapacitation lines on philosophical grounds. It readily adopted the modified just deserts approach, emphasizing the current offense seriousness but giving some weight to the offender's prior record (which was more influential in existing sentencing decisions) as the basis for dispositions; in establishing sentence durations assigned to each cell of the guidelines grid the commission adopted a modified incapacitation model. When the commission subsequently tested its grid with respect to projected prison population, they found that the modified just deserts disposition line and sentence durations together would result in average annual prison
280 populations at capacity with no margin for fluctuation; the MSGC reluctantly agreed to a 10 percent decrease in all sentence durations rather than modify the disposition line to keep policy within the constraints of existing prison resources. Pennsylvania, too, designed its disposition line and sentence durations on a modified just deserts model. In that state, however, such a policy continued rather than altered prevailing practice. In constructing its grid, which included felonies and misdemeanors, the PCS adopted two disposition lines. One, the prison line, separated offenders recommended for prison sentences from others. The other, the jail line, separated recommended jail sentences from recommended nonincarcerative sentences. In dealing with sentences that deviate from the guidelines, the MSGC adopted a nonexclusive (but rela- tively limited) list of aggravating and mitigating circumstances, established a high legal standard for invoking these circumstances ("substantial and compelling reasonsn), and left the judge free to determine the extent of deviation when departing from the presumptive sentence in the appropriate guideline grid cell. In Pennsylvania the commission's first and second guidelines included exclusive lists of aggravating and mitigating circumstances and permitted judges to invoke them without being considered outside the guidelines. In determining such a sentence, the judge was to move one cell to the right or left of the applicable guideline sentence cell (or one cell up or down at the far right or left of the grid). In essence this allowed an increase or decrease of a sentence by up to 6 months if an aggravating or mitigating circumstance warranted it. Judges could also go outside the guidelines if an additional "compelling reasons were found for doing so. In the third set of guidelines the list of aggravating and mitigating circumstances was eliminated, permitting judges to consider social status factors in sentencing. Sentencing ranges for offenses with aggravating and mitigating circumstances were widened, and these ranges were built into the guidelines chart for each offense seriousness and offender history combination. In addition, departures from the guidelines were allowed unfettered by any specified legal standard, although judges were still required to state in writing the reasons for departure. As a final step in designing the guidelines, each commission considered related policy questions. Thes
281 included handling convictions for attempted crimes, consecutive and concurrent sentences, appeals of sen- tences, and plea negotiations. Each commission recog- nized that the effect of punishment standards depends crucially on the actions of system officials, particu- larly prosecutors, and that the guidelines would increase the prosecutors' discretion through control of charging and plea negotiation decisions. But both commissions decided not to attempt to limit prosecutorial discretion or to structure plea negotiation until the guidelines had been implemented and the behavior of prosecutors could be studied. The MSGC explicitly considered and rejected "real offense" sentencing and explicit sentence discounts for guilty pleas; the Pennsylvania Commission considered the effect of plea bargaining more generally and con- cluded that there was little the commission could do to limit it. Key Elements in Designing the Guidelines Minnesota In interpreting the legislative mandate and developing guidelines, three interlocking elements were the keys to the outcome of the Minnesota commission's work: inter- pretation of the law as imposing an absolute limit on prison populations; research and its uses in policy development; and a strategy of public involvement. The commission was convinced early by staff arguments charting an overall strategy that the guidelines should represent both a change from the past sentencing policy and a new approach to the way guidelines were developed. The Minnesota commission rejected the notion that its task was simply to model and systematize past practice and abandoned the Albany descriptive guidelines approach used in the development of the Minnesota parole guide- lines.l° It adopted instead a more actively policy- oriented approach.ll The interpretation of the legislative mandate to "consider . . . correctional resources" as an absolute limit was central to the commission's work for several reasons. First, it facilitated the development of a viable research methodology which, once adopted, rein- forced the need to consider the population constraint. If the guidelines were to link sentencing policy with future prison population by maintaining that population
282 at the current capacity level or below it, data on existing practice had to be used to project the conse- quences for prison populations of different sentencing policies, and those outcomes had to be predictable. The need for predictability reinforced the necessity of designing presumptive guidelines with a sharply limited range of variation within each cell of the grid. Second, the interpretation of the legislative mandate as an absolute limit on prison population imposed self- discipline on the commission. Its task became the allocation of limited prison space among the universe of potential occupants. Third, this interpretation forced principled, responsible decisions within the bounds of discourse established by the commission and put interest groups lobbying the commission in the position of having to argue on the commission's terms, namely, which types of offenders most merited imprisonment rather than simply calling for the imprisonment of more offenders. Several commission members were initially uncomfortable with what they viewed as a pragmatic approach to establishing policy, but they gradually embraced the population limit. When the prosecutor and conservative commissioner of corrections both publicly supported the population constraint (which the commission members did not hesitate to point out grew from the language of the statute), the interest group representatives were forced to argue according to the commission's rules and to realize the need for compromise. The MSGC's allocation policy was only feasible, however, if it was accompanied by accurate estimates of the effects on the prison population of various policies and the support of the interest groups that would be affected by the guidelines. The MSGC's projection of prison populations required research consisting of three components: a dispositional study, a durational study, and a simulation or population projection model to predict the impact of various potential policy options under consideration on state and local corrections facilities. Data from the disposi- tional and durational studies indicated that the most significant factors in judges' decisions regarding imprisonment were the seriousness of the current offense and the offender's criminal history. The most influen- tial criminal history items were the number of prior felony convictions, followed by whether the offender was on probation or parole at the time of the current offense, and the extent and severity of the juvenile
283 record. Seriousness of the current offense and criminal history were also strongly associated with parole board decisions on duration of prison terms. Consideration of other factors contributing to sentence variation indi- cated the presence of modest regional differences (but not the substantial difference in urban and rural sentencing severity that had been anticipated), the absence of systematic bias by race and gender, and the association of employment but of no other social status factors with sentencing in Minnesota. These data were then used in an innovative way. Rather than merely building a model of sentencing behavior that mirrored the past, the commission developed a population projection model that, using case data from the durational and dispositional studies, could simulate the 5-year popula- tion effects of various sentencing policies and commis- sion decisions. Policies that would lead to prison overcrowding were rejected; those that were feasible were considered, and choices were made on the basis of both past practice and the values of commission members and the interest groups they represented. The third essential element was a broad and successful campaign of constituency building. The commission sought to develop interest group participation as a way of gaining support and accommodating potential opponents. The commission held a series of initial regional public meetings to build interest in the guidelines. The staff and members made numerous presentations, established liaison with groups and agencies regarded as important, and established good relations with the press, ensuring favorable publicity. Members kept in frequent contact with the constituent groups they "represented" on the commission, including judges, prosecutors, the defense bar, the corrections bureaucracy, and public interest groups (blacks, Indians, and women in particular). By the time the guidelines were developed, no group could realistically protest that it had not had an opportunity to make an input and had not won some concessions. This strategy succeeded because it was conducted effectively and because the preconditions for success were present. First, Minnesota's opinion leaders generally agreed that the goal was to establish deter- minate sentences while maintaining existing prison population levels. Commission members shared this goal. This permitted discussion to revolve around the means to achieve that end. Second, the members and particularly the chair were willing to take the time to attend
284 countless meetings and make clear and convincing presen- tations. Third, the criminal justice community was small enough to be reached and induced to participate in the process on a sustained basis. Whereas such a participa- tory process might have highlighted irresolvable dif- ferences had they existed, in Minnesota it made clear the necessity of compromises in allocating prison space once the commission's ground rules were established and contributed to open negotiation among commission members at commission meetings that were attended by interest group representatives. In the end all groups made a contribution and gained some concessions. The guidelines became their product, too. Although some were unenthu- siastic, each agreed not to be the first group to upset the edifice that had been delicately constructed. Pennsylvania The Pennsylvania commission had a nearly impossible political task--creating guidelines that would simul- taneously hold prison population constant, reduce disparity, and limit judicial discretion--given its mandate and the existing sentencing system, regional disparity, and extensive judicial discretion. In considering the prison population/severity level ques- tion, the Pennsylvania commission had to face the dilemma that the legislature had failed to resolve. Commission members did not want to create guidelines that would overcrowd prisons or be impossible to implement; at the same time, many supporters of the statute expected the guidelines to increase sentence severity, the certainty of punishment, and, by implication, the prison popu- lation. Without a legislative mandate to consider prison capacity, and concerned about the political consequences of adopting a policy of limited, selective increases in sentence severity, the commission assumed a n principled" stance in determining "appropriate sentences." They rejected a formal limit on the number of offenders to be incarcerated based on prison capacity. Instead they agreed to remain publicly silent but to informally consider prison capacity in designing the guidelines. The first guidelines would have resulted in a slight decrease in prison populations but an increase of 16.3 percent in the number of months to be served by incar- cerated inmates according to the PSC's projections.12 The absence of a clear policy limiting prison populations
285 to existing capacity, however, left the commission vulnerable to the terrific pressure to increase sentence severity, to which it ultimately succumbed in the second and third guidelines. According to the commission's projections the second guidelines would have increased by 61.3 percent the number of months of incarceration to be served and also would have increased the proportion of offenders to be incarcerated. Yet these guidelines failed to be severe enough. And since these guidelines could not have been implemented given existing prison space and resources, moderates also opposed them. The severity/population dilemma was resolved by a legislative resolution calling on the commission to revise the guidelines, by further increasing sentence severity and widening the ranges of judicial discretion. This meant that the likely effect of the guidelines would be much more limited. By the time the third guidelines were formulated, their function had become largely symbolic: to affirm the desirability of statewide policy limiting judicial discretion, to serve as a common starting point in determining minimum sentences, and to provide the basis for the appellate review of sentences, from which narrower standards may gradually develop. In the third round of guidelines development, several commission members continued to express concern about the impact of the guidelines on the prison population. But these members were overruled by those who viewed their primary goal as the creation of guidelines acceptable to the legislature, regardless of their effect on the prison system. An important part of the political dilemma, as the commission's research on past practice made painfully clear, grew from extensive regional disparity. The PCS collected and analyzed data on sentencing dispositions and durations pronounced by judges based on a sample of cases disposed of in 1977. 3 Ultimately the study proved to be a two-edged sword. It indicated the extent of disparity across the state and highlighted the difficulty to be encountered in significantly reducing it. One finding overshadowed all others: the extent of regional disparity. Statewide, 38.9 percent of all orrenaers In BY// were Incarcerated. But in Philadelphia and Allegheny (Pittsburgh) Counties, which have the highest crime rates and the highest proportion of violent crimes, only 28.5 and 23.8 percent of the convicted offenders, respectively, were incarcerated. The suburban incarceration rate was 44.1 percent, that in small
286 cities/urban counties was 47.4, and in rural areas 53.9 percent. Sentences in Philadelphia and Pittsburgh were also shorter for similar offenses, particularly misde- meanors. Although the PCS developed a projection methodology, it was less accurate than that of the MSGC. First, the wide ranges in the PCS guidelines and the unpredictable compliance rates in jurisdictions with varied sentencing practices meant that projections rested on uncertain assumptions. Second, the projection model produced estimates of changes in incarceration rates and sentence lengths resulting from various sentencing policies that were being considered but did not provide for a simula- tion of changes in the prison population over several years. The PCS projection technology could not provide quick feedback on the likely consequences of the policies that were being considered during a commission meeting, but such data were not viewed as necessary by commission members, since the policy to be embodied in the guide- lines was not closely linked to or limited by prison capacity. The absence of data on actual sentence durations and indications of changes in sentencing patterns between 1977 and 1980 also undermined confidence in the accuracy of projections. The projections of the impact of the guidelines on prisoner populations based on the 1977 data made by the PCS provided ammunition for opponents of the guidelines. As indicated in Table 6-2, according to the commission's calculations the first set of guidelines would have decreased the total percentage of offenders to be incarcerated from 38.6 to 36 percent, assuming 100 percent compliance and the use of probation in cells with a range of 0-2 months in Philadelphia and Allegheny Counties. But the proportion of offenders that would be incarcerated varied widely by region; the proportion of Philadelphia and Pittsburgh offenders to be incarcerated would increase substantially, and the proportion to be incarcerated from elsewhere in the state would fall. When judges and prosecutors around the state vehe- mently protested the leniency of guidelines that would have reduced sentence severity in their jurisdictions, the commission revised the guidelines prior to submitting them to the legislature in January 1981. Even the second guidelines' however, would have caused a substantial shift in prison populations. Many more offenders from Philadelphia and Pittsburgh would be incarcerated and, as indicated in Table 6-3, would serve substantially longer
287 TABLE 6-2 Estimated Changes in Incarceration Rates, 1977 Data Compared With October 1980 Guidelines (assumes 100 percent compliance with guidelines and no aggravating or mitigating circumstances) Percent "Inca Less than 12 Months 19 7 7 P reposed Data Gu ide 1 ine s Percent " I n" 12 Months or More 1977 Proposed Data Gu idel ines Total Percent " I n" 1977 Proposed Data Gu idel ine s Philadelphia County 13.5 22.2 15.022.5 28.5 44.7 Allegheny County 10.9 18.6 12.911.5 23.8 30.1 Suburban 29.0 26.8 15.18.3 44.1 35.1 Small c it ies/ urban counties 28.6 26.0 18.86.6 47.4 32.6 Rural 32.7 24.4 21.34.7 54.0 29.1 Total 22.2 23.8 16.712.2 38.9 36.0 aAssumes an alternative to incarceration sentence when the guidelines sentence allows either incarceration of alternative in Philadelphia and Allegheny Counties; all others give incarceration. SOURCE: Unpublished data, Pennsylvania Commission on Sentencing. terms, while fewer offenders from rural areas and somewhat fewer from small cities and suburban areas would be incarcerated, and the terms of small city and rural offenders would be shortened. These guidelines were therefore unacceptable. It was simply not politically tolerable to reduce disparity by leveling sentences to the mean; only guidelines that proposed bringing all jurisdictions up to the level of the most severe could pass political muster. Such guidelines emerged from the commission in October 1981 and were submitted to the legislature in January 1982. According to the commission's calculations, based on a new study of sentencing in Pennsylvania in 1980 (which indicated an increase in sentence severity between 1977 and 1980), the guidelines would increase sentence severity for felony convictions across the state, by about the same amount as a pending mandatory minimum sentencing bill that was subsequently adopted (see Table 6-4). Pennsylvania, unlike Minnesota, initially had no strategy of public involvement in guidelines development. Legislators, divided and ambivalent about the level of severity and how much to limit judicial discretion, had passed the problem to the commission. Commission members
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289 TABLE 6-4 Projected Percentage Changes in Total Months of Confinement Sentenced, Third Guidelines (October 1981) and Proposed Mandatory Minimum Sentencing Bill Compared with 1980 Sentences) S entenc ing Option Philadelphia Allegheny Countya Countyb Other SC Mandatory bill only Guidelines only ( 12 months for deadly weapon) Gu idel ines only ( 24 months for deadly weapon) Mandatory plus guidelines ( 12 months for deadly weapon) Mandatory plus guidelines ( 2 4 months f or deadly weapon ) +109 +95 +128 +169 +188 +156 +39 +102 +28 +155 +50 +2 16 +6 0 +241 +73 aAll aggravated assault (felony II and misdemeanor I), burglary, murder III, rape, robbery ( felony I , II , and III ), voluntary manslaughter . ball aggravated assault (felony II and misdemeanor I), burglary, rape, robbery (felony I, II, and III), and firearms (misdemeanor I). CAll f elan ies ( except thef t and drug of f enses ), weapon misdemeanor s, and misdemeanor Is against the person. The counties in this sample are: Beaver, Berks, Blair, Cambria, Centre, Crawford, Cumberland, Dauphin, Delaware, Indiana, Lawrence, Lehigh, Luzerne, Lycoming, Montgomery, Northampton, Perry, Schuylkill, Warren, and Washington. SOURCE: Unpublished data, Pennsylvania Commission on Sentencing. gradually hammered out a set of compromises in developing the draft guidelines without public input. They infor- mally agreed that the guidelines would provide presump- tive sentences within relatively narrow ranges, that the severity of the punishment for some offenses against persons would increase but that punishment for most offenses would be close to the statewide mean, and that prison populations would not substantially increase. The chair did not view constituency building as necessary; several members lacked the time or interest in making the effort that would have been required. Involving interest groups, which themselves were often divided by regional differences, in the development process would have required an enormous effort in such a populous state with several urban centers. Moreover, the interest groups had
290 conflicting goals. The more presumptive the guidelines, the more they satisfied prosecutors and alienated judges. An explicit statewide policy increasing both the propor- tion of person offenders to be incarcerated and their sentence lengths while holding the prison population con- stant meant a radical increase in the number of offenders from Philadelphia and Pittsburgh in state prisons and a ~bumping" of property offenders from suburban and rural counties into the already overcrowded urban jails. Given regional jealousies and the substantial increase in the costs to some counties that such a change implied,14 it is doubtful that even an aggressive campaign to develop support and openly discuss these issues would have resulted in compromise or agreement on meaningful sen- tencing guidelines. But the absence of involvement of many groups prior to the presentation of the guidelines at the October 1980 public hearings contributed to the predictable reaction they provoked: opposition from all quarters. The changes incorporated in the January 1981 guidelines--removal of language implying that the guide- lines were presumptive, increases in offense severity scoring for crimes involving a firearm, alteration in offender history scoring, and increases in the range and overall severity of guideline sentences in many cells-- also failed to satisfy critics. As a result, the commission's legislative strategy backfired. It attempted to lie low, anticipating that the guidelines would be overlooked by a uninterested pub- lic and legislature, and relied on the legislative mem- bers of the commission to prevent a resolution of rejec- tion from emerging from the judiciary committees onto the floor for a vote. When a moderate house member announced plans to submit a resolution to reject the guidelines, the house leadership pressed it through committee and onto the floor with uncharacteristic speed to prevent the guidelines from going into effect after 90 days. There simply was no time for discussion and education of legis- lators. Furthermore, commission members put little pres- sure on legislative leaders to prevent rejection, while there was a strong negative reaction to the guidelines from legislators who reported opposition from their con- stituents. The commission salvaged what could be saved: the guidelines concept. Representative Hagarty was per- suaded to phrase the resolution so that it rejected the specific guidelines before the legislature, retained the commission, and called on it to revise and resubmit the guidelines in 6 months.
291 When the third guidelines came before the legislature they aroused little opposition because their meaning and probable impact had changed. First, a mandatory minimum law, supported by both the Republican governor and his most visible Democratic challengers, had been adopted by the legislature. Guidelines were no longer viewed by many legislators as the less desirable alternative to mandatory minimums; they could be regarded as a sup- plementary crime-fighting measure. Second, the commis- sion had addressed specific objections to the earlier guidelines. Prosecutors could no longer credibly complain of their leniency, nor judges of being fet- tered. Technical ambiguities and criticisms that the guidelines were unintelligible and complex had been dealt with. The previously vocal opponents could only oppose the guidelines on principle, and the legislators who voted for the majority resolution were on record as having supported them in principle. Criticisms from city and county government officials, faced with likely increases in jail overcrowding and costs, might have surfaced, but the law-and-order atmosphere in Pennsyl- vania made it politically too dangerous for public officials to suggest that the guidelines were too severe and costly. In addition, the commission, during both the redrafting and legislative consideration period, adopted a much more energetic constituency-building strategy. The new chair, Anthony Scirica, and a new district attorney appointed to the commission established close contact with the trial judges' and district attorneys' organizations. Scirica, an experienced and respected former legislator, also contacted and won the support of legislative leaders and of many individual legislators formerly opposed to the guidelines. Although there was little enthusiasm for the guidelines, their apparent acceptance by the legislative leadership led isolated opponents to conserve their political capital and avoid a losing battle over a measure likely to have limited impact. THE POL ITICS OF GUIDELINE DEVELOPMENT: THE ROLE OF INTEREST GROUPS Both the Minnesota and the Pennsylvania guidelines proposed changes in existing policies and practices. The MSGC's guidelines were accepted because the changes they introduced were principled and limited in scope, because
292 they left important areas of discretion untouched, and because they gave more than they took from virtually all interest groups affected by them. They altered existing practice by reducing the number of chronic property offenders who would be imprisoned and replaced them with more person offenders, including first time offenders. This represented a shift from an incapacitation policy to a just deserts policy, caused a small decrease in the number of rural offenders who would go to state prison, and changed the type but not the number of offenders from the Twin Cities. The commission highlighted the change in principle underlying imprisonment, downplayed the regional redistribution of prisoners, and added a number of concessions that had both popular appeal and, more important, won the support of the primary interest groups. The county attorneys went along with the guidelines, convinced that they had won concessions, including the right of the state to appeal a sentence, the inclusion of consideration of the juvenile record and the elimination of social status factors (often used to mitigate sen- tences) from consideration in sentencing, and greater certainty of imprisonment of those offenders the county attorneys most wanted to imprison. The public defenders came around when they were convinced that they had limited the effects of prior misdemeanors and juvenile adjudications on criminal history scores and that their clients would gain by a policy of holding Prison popula- tions constant. _ , , _ The judges were divided, and so were neutralized as an important potential source of oppo- sition. While occasional protests surfaced that judges would become robots, the guidelines shifted rather than diminished judicial discretion by limiting it with respect to dispositions while giving the judges structured authority to determine the actual duration of prison terms, which formerly had been set by the parole board. Community Corrections Act counties were given a financial incentive to support the guidelines because the guidelines eliminated the rationale for the charge to the county for the imprisonment of any offender sentenced according to the guidelines.= The reaction of corrections personnel was mixed. Probation officers were . . . . . . · . . . . ~ concerned about being made responsible for providing accurate criminal history information, but leaders in the Department of Corrections were pleased with a policy that ensured a limited and predictable prison population and increased their leverage over prisoners by a provision that increased good time. Indian and black groups, while
293 suspicious of the guidelines, felt they gained by the elimination of social status factors from consideration. Feminist groups were pleased with the increased severity of the recommended sentences for sexual offenders. When the guidelines were submitted to the legislature, all organized opposition had been neutralized and key legislators went along with what otherwise was likely to have been a controversial policy. In Pennsylvania the initial guidelines would have reduced disparity; held prison populations near current levels; increased the likelihood of imprisonment for those convicted of offenses against persons; reduced the number of offenders from small cities, suburban, and rural areas to be incarcerated; and forced judges to deviate from the guidelines to jail chronic minor offenders. Such a proposal, while arguably equitable and ostensibly responsive to the legislative mandate, was politically unpalatable. The guidelines made mandatory minimum sentences look less inhibiting to judges, more certain to prosecutors, more reasoned to corrections administrators, and less costly to county government officials. When the implications of the guideline changes to reduce regional disparity became apparent, discussion of disparity virtually disappeared; each county's unique problems gained attention, and sentencing uniformity became a pejorative term. In what proved to be a futile attempt to meet mounting criticism, the commission modified the initial guide- lines. The second guidelines, however, would have increased prison populations but reduced sentence severity for rural, suburban, and small-town property offenders; continued to restrict judicial discretion; and failed to satisfy the Philadelphia district attorney's demand for certainty or severity in treating offenders convicted of violent offenses. The changes undermined the integrity of the guidelines and proposed an irrespon- sible policy to the legislature but salvaged the guide- lines concept through legislative deferral and revision. The third guidelines made no pretense of trying to resolve the disparity, discretion, and severity dilemma that the legislature had passed to the commission. These guidelines are designed to increase sentence severity across the state but substantially widen the sentencing ranges within the guidelines, so that judicial discretion is hardly affected. For example, for an offender with one prior felony conviction for burglary who is convicted of robbery threatening serious bodily injury, the range
294 within the guidelines extends from 12 months, when a mitigated sentence is recommended, to 42 months, when there is an aggravating circumstance, to 66 months when a 24-month "enhancement" for use of a deadly weapon is proved. Furthermore, if several offenses are charged and proved the court has wide discretion in determining whether to impose consecutive or concurrent sentences, widening the possible range of time to be served. In contrast, conviction for a similar robbery with one prior burglary conviction in Minnesota results in ~ guideline sentence of 30-34 months; any aggravating or mitigating circumstance permits the judge to deviate from the guidelines only if there are "substantial and compelling reasons" for doing so. The likely consequence of the Pennsylvania guidelines is a shift from sentence to charge bargaining, limited change in current sentencing practices, some increase in the length of prison terms, and little reduction in the vast regional disparity. Philadelphia and Pittsburgh judges are likely to find mitigating circumstances in a substantial number of cases, and the district attorneys offices are likely to adopt charge bargaining practices in which substantial discounts for guilty pleas circum- vent the guidelines to avoid trials and move cases through the courts. In the rest of the state, symboli- cally severe sentences will be given in the few notorious serious offenses, and sentencing will probably continue much as before. Even a modest level of compliance with the normal guidelines sentences, however, would result in increased prison and jail populations. Although the legislature has approved a new bond issue to increase prison capacity, short-term increases in prison populations are likely to necessitate more case dismis- sals, charge reductions, and sentences in the mitigated range or below the guidelines--or the adoption of an emergency early release mechanism to reduce prison overcrowding. CONCLUSION Each commission met the real expectations of the legisla- ture that created it. In Minnesota there was a consensus favoring presumptive sentences for felonies, elimination of the parole board, and reduction of existing dispari- ties through greater certainty of punishment of certain offender types without overall increases in severity or
295 in prison populations. The commission had a limited man- date, which it fulfilled by providing guidelines with a principled and feasible policy; interest groups that par- ticipated in creating the guidelines gained more than they lost in accepting them. In Pennsylvania the commis- sion failed initially to create politically acceptable guildelines and failed, too, to maintain its principled stance on prison populations. But the guidelines commis- sion may have achieved a latent goal of the Pennsylvania legislature. The commission bought time and subsequently heightened awareness of the dilemmas and policy choices involved in simultaneously seeking to reduce disparity, increase severity, and hold down prison populations and costs. When the choice was finally clear, the legisla- ture made a symbolic gesture toward disparity reduction by adopting guidelines with broad ranges and made a real commitment to increased severity and the associated costs of an expansion in prison capacity. Rather than adopting either guidelines or mandatory minimums, it chose both. The contrasting outcomes in the development of sen- tencing guidelines in the two states caution against generalizing from the experience of a single state. Other jurisdictions considering adopting a guidelines approach cannot simply attempt to duplicate the Minnesota commission's experience. Its success rests on that state's small and homogeneous population, its political traditions of moderation in punishment and a relatively centralized authority, the legislature's consensus not to increase severity in introducing sentencing reform, the commission's willingness to design a system and to con- vince interest groups that the constraints imposed by such a system would not be disruptive. the avoidance of ~ ~ _ , _ politicization of sentencing issues, and the redistri- bution of authority such that the only group that clearly lost was the parole board, which had limited political clout. In contrast, the Pennsylvania commission gave way under the pressure of law-and-order politics, traditions of localism, a lack of legislative agreement on goals and the means to achieve them, and vested interests in preserving the existing distribution of authority in the criminal justice system. In the face of this organized opposition the Pennsylvania commission repudiated the principled initial guidelines, replacing them with guide- lines proposals that were progressively more severe and less likely to effect changes in either the exercise of discretion or the resulting disparity in sentencing across the state.
296 The outcome of efforts to alter sentencing practices are likely to depend on the unique combination of forces, factors, and existing practices present in a jurisdic- tion. But the experiences of the two states in this study also suggest that the principal factors shaping the outcome of efforts to change the sentencing system in any jurisdiction are similar. These include the political climate; the existing distribution of authority; the level of consensus in the legislature about the nature of the desired change and the expression of this consensus in a legislative mandate; the goals and influence of interest groups in bringing about change; and, in the case of sentencing guidelines, the skills of the commis- sion both in creating a rational, coherent, feasible, and equitable system and in enlisting the support of the most powerful interest groups affected by the change. This study also raises questions about the magnitude, impact, permanence, and broader implications of the changes that have been adopted with sentencing guide- lines. The Pennsylvania statute creating the guidelines commission did not alter sentencing practices in any important ways. The statute retained judicially deter- mined minimum and maximum sentences as well as release decisions determined by the parole authority. The guidelines do not go very far in structuring the sentenc- ing decisions to be made by court and parole officials: They leave enormous judicial discretion and increase without seeking to restrain the authority of the prose- cutor. While the guidelines are based on a just deserts philosophy, the legislature did not explicitly alter the goals of punishment, nor were these goals an important factor in the commission's deliberations. Thus deter- minacy has not come to Pennsylvania either in theory or practice, and the guidelines are likely to have limited impact on either case processing or sentence outcomes. Minnesota appears to have adopted a real change. From a system resting on indeterminate sentences and on rehabilitative and utilitarian goals, it moved to one in which punishments of determinate length are announced at the time of sentencing and are based on a just deserts model. Several caveats are still necessary. First, there are several avenues for reintroducing utilitarian considerations in sentencing and altering sentence lengths. The retention of a good-time provision permits corrections officials to increase time to be served by up to one-half. The new system greatly increases the influence of prosecutors, whose discretion is not
297 regulated by the guidelines. How prosecutors will affect sentencing outcomes by their charging and plea negotia- tion practices, the effectiveness of the commission's effort to eliminate consideration of offender character- istics, and the extent to which similar offenders will actually receive like sanctions--particularly the 80 percent of the felons who are not imprisoned--are empirical questions remaining to be answered. In Minnesota the reforms were shaped so as to be consistent with the perspectives and interests of the central criminal justice agencies and strengthen statewide control of the criminal justice system. Second, determinate systems are unstable. Indetermi nate sentencing systems permit legislative increases in . . . . . . - punitiveness by raising maximum sentences in response to public pressure without altering the sentences actually given out. But under a policy of determinacy the legislature can, and the California experience indicates that the legislature will, under public pressure, increase sentence severity without providing safety valves for increased prison populations. Guidelines represent an uneasy intermediate position. As the Pennsylvania experience demonstrates, the sentencing guideline commission is also vulnerable to public pressures it may not be able to withstand. In Minnesota the guidelines now face pressures from four sources that potentially threaten their survival: the legislature; the judiciary; the governor; and the commission itself. The legislature may pass mandatory minimum sentencing bills or other legislation that undermines the balance between prison capacity and population. Thus far it has not done so, and bipartisan legislative support for the guidelines appears to have grown. . . · . . . . . . . ~ , The judiciary may deviate consistently in the direction of greater severity, increasing population pressure on the prisons or, alternatively, sentence at or below the guidelines in several cases that lead to public outcry over leniency that threatens the existing system. Departures have thus far been limited and publicly explained when they have occurred. The governor may alter the commission by appointing new members not committed to the current guidelines to replace members whose terms have expired All members' terms had expired in May 1982, and the governor had five appointments to make, including the chair 16 now 1-h" ~r~mmi .c:ninn wi l 1 f',n~1-i On with ~ new How the commission will function with a chair and four new members is not clear. And the commission may alter the guidelines, may not resist , ~ new
298 pressure from groups demanding increased severity for particular types of offenders, and may fail to maintain its legislative support. Finally, the development of sentencing guidelines must be considered in light of the current movement to change sentencing structures and the questions surrounding it. These include the relative contributions of ideology and of group interests in changing criminal justice system policies and practices; the relationship of recent sentencing reform efforts across the United States to broader political, social, and economic changes occurring in this nation; and an explanation of the movement toward determinacy at this time. Such a perspective on the sentencing reform movement and its outcomes, however, requires I. . . a theory about the forces moving persons to change the institutions that govern them" (Messinger and Johnson 1978:57) that remains to be developed. NOTES 1. In April 1981 Washington became the third state to pass a statute creating a sentencing commission. Its guidelines were to be submitted to the legislature by September 1, 1982. 2. The data for this study come from a review of written materials produced by each commission, public documents related to the guidelines, and from unstructured interviews with participants in the legislative and guidelines construction processes and representatives of various concerned interest groups. Written materials include sentencing reform bills submitted to the Minne- sota and Pennsylvania legislatures and the statutes creating the commissions in each state ((1978, Nov. 26 P.L. 1316 No. 319 Sec. 3) and (18 Pa.C.S.A. Sec. 1381)); minutes of all meetings of both commissions up to submission of the guidelines that subsequently went into effect to each legislature; staff concept papers and other materials prepared for presentation at commission meetings; written testimony presented at public hearings of the Pennsylvania Commission on Sentencing on December 2, 1980, in Scranton, December 8, 1980, in Pittsburgh, December 10, 1980, in Harrisburg, December 11-12, 1980, in Philadelphia, November 16, 1981, in Harrisburg, November 18, 1981, in Pittsburgh, and November 20, 1981, in Philadelphia; and the Pennsylvania commission's draft
299 and final guidelines published on October 25, 1980 (10 PA. ADMIN. BULL. 4181 (1980)), January 24, 1981 (11 PA. ADMIN. BULL. 463 (1981)), October 17, 1981 (11 PA. ADMIN BULL. 3597 (1981)), and January 23, 1982 (12 PA. ADMIN. BULL. 431 (1982)); the Minnesota Sentencing Guidelines . Commission's Report to the Legislature of January 1, 1980 [hereinafter cited as Minnesota Guidelines Report]; and the Minnesota sentencing guidelines and commentary (rev. ed. 1981). Interviews were conducted in Minneapolis and Saint Paul on March 6-7 and May 11-13, 1981, with legislative leaders and former staff, and with Chairperson Jan Smaby, members and former members, and Dale Parent, Director, and Kay Knapp, Research Director, of the Minnesota Sentencing Guidelines Commission. Interviews were conducted in Pennsylvania between March and May 1981 with all members of the original commission except Robert Colville, with several legislators and staff members, with representatives of the Pennsylvania Prison Society, Women Against Rape, the District Attorneys' Association, with the commissioner of corrections, and with John Kramer, Executive Director, and Robin Lubitz, Research Director, of the Pennsylvania Commission on Sentencing. In March 1982 additional interviews were conducted with the new chairman, Anthony Scirica, commission members Terrence McVerry and Frank Hazel, and John Kramer. Interviews were unstructured and ranged from half an hour to several hours in length. 3. In drafting a major clause had inadvertently been omitted from the bill. It is unclear whether this clause could have been included as a technical revision by the house. This omission was the justification for the veto. 4. A decision regarding the continued existence of the parole board was deferred. The legislature subsequently voted to abolish the parole board as of July 1, 1982. 5. Minnesota and Pennsylvania have distinctive and contrasting political cultures and traditions, shaped by different historical circumstances. A political culture is defined as "the particular orientation to political action in which each political system is embedded" (Elazar, 1972:85). In analyzing the political cultures of states in terms of the behavior permitted and expected of public officials, the kinds of people involved in government and politics, and the manner in which govern
300 ment is practiced, Elazar identifies three ideal types of political cultures: the individualistic, the moralistic, and the traditionalistic. Minnesota typifies the moralistic political culture and Pennsylvania the individualistic. The moralistic political culture is characterized by a view of government as a means of achieving the good community through positive political action; the belief that politics is a responsibility of citizens; a strong merit system that keeps politics "clean"; and political parties that are weak, open, issue-oriented, and domi- nated by middle-class activitists who view participation as public service. Internal cohesion often rests on an ethnically homogeneous population. In the individual- istic political culture, government is viewed principally as a means of responding to the competing demands of the interest groups and individuals it serves; the civil service is viewed with suspicion because it limits political patronage, which greases the wheels of govern- ment; politics is regarded as the business of profes- sionals, and public participation is limited; parties operate like businesses, demanding strong loyalty and cohesiveness and distributing the tangible rewards of power to members; elections are rarely issue-oriented; and elected officials tend to act as brokers for private interests in an ethnically and regionally diverse society with a tradition of local government. 6. The judicial members included George Scott, associate justice of the supreme court; Douglas Amdahl, chief judge of the district court (Hennepin County, including Minneapolis), who is now chief justice of the supreme court; and Russell Olson, of the third district. The governor's appointments included Jan Smaby, a Comunity Corrections Act administrator for Hennepin County; Barbara Andrus, a black community activist; Steve Rathke, a young prosecutor from Crow Wing County and a political activist with experience as a senate staff member; and William Falvey, the public defender of Ramsey County (St. Paul). The commissioner of corrections, Ken Schoen, and the chairman of the parole board, Richard Mularone, both of whom had taken an active role in shaping the legisla- tion, both left their positions on the commission by the end of 1978. They were replaced by Jack Young and Les Green, respectively.
301 7. The four judicial members of the Pennsylvania commission included Richard Conaboy of Lackawanna County (Scranton), who had been an active supporter of the guidelines approach as president of the Pennsylvania Joint Council on the Criminal Justice System; John O'Brien of the Allegheny County (Pittsburgh) court of common pleas; Merna Marshall and Curtis Carson (the only black member), from the Philadelphia bench. Legislative members included Senator George Gekas, senior Republican on the judiciary committee; James Kelley, a Democratic senator; Norman Berson and Anthony Scirica, from the house judiciary committee. The gubernatorial appoint- ments included Robert Colville, district attorney of Allegheny County; Michael Minney, an attorney in private practice in Lancaster County; and Albert Pelaez, of Duquesne University Law School in Pittsburgh. Judge Marshall died in December 1979; her vacancy was subse- quently filled by Anthony Scirica, who had been elected to the bench. Judge Scirica, in turn, was replaced by Representative Terry McVerry of Allegheny County. Following the legislative rejection of the guidelines in April 1981, since the terms of all members had expired, the governor appointed three new members: Frank Hazel, district attorney of Delaware County; Charles Scarlata, an attorney from Allegheny County; and David Jones, a law professor at the University of Pittsburgh. The legisla- tive members were reappointed and three of the four judges were reappointed by a new chief justice. Conaboy, who had moved to the federal bench, was not reappointed; he was replaced by Lynn Abraham of Philadelphia. Judge Scirica was elected chair. While the major urban and suburban counties were well represented, the rural counties were not represented at all, even though their representatives make up a substantial proportion of the Pennsylvania house of representatives. 8. The initial guidelines were those created by the commission and published in the Pennsylvania Bulletin in October 1980; following the public hearing, the initial guidelines were modified. The second guidelines were presented to the legislature in January and rejected in April 1981. Following legislative rejection and the appointment of several new members, the commission produced a third set of guidelines. Reference to the third guidelines includes both those published in the Pennsylvania Bulletin in October 1981 and the slightly
302 modified version presented to the legislature in January 1982 and now in effect. The weighted scoring system for seriousness provided that two or three misdemeanors were assigned 1 point; four or more prior misdemeanors were given 2 points; one felony was assigned 1 point; two or three prior felonies were assigned 2 points; and four or more prior felony convictions were assigned 3 points, with a maximum possible score of 4 points based on prior offense convictions. The scoring system permitted the addition of 1 point for prior convictions for offenses ranked 6 or 7 in seriousness and 2 points for those ranked 8. In the second set of guidelines the scoring was changed to allow 1 point for one or two misdemeanors and 2 points for three or more misdemeanors, in order to permit incarcera- tion sentences for chronic misdemeanants. The third set of guidelines reverted to the first scoring weights. 9. The two just-deserts lines place great weight on the current offense and little weight on previous criminal history, seeking to make punishment proportional to the gravity of the offense. Incapacitation-oriented sentenc- ing schemes are concerned with the effects of punishment, seeking to remove from society those offenders viewed as likely to commit further crimes on the basis of those offenders' prior criminal history, which weighs heavily in the sentencing decision. 10. See Wilkins (1981), Wilkins et al. (1978), and Sparks (Volume 2) for a fuller discussion of this approach. 11. See the staff concept paper by Parent and Knapp (1978) outlining the issues and strategy options that were available to the commission. 12. These projections were based on sentencing data for 1977. Estimates of the impact of the guidelines sug- gested a decreasefrom 38.9 percent to 36 percent in the proportion of offenders to be incarcerated. Subse- quently, data gathered on sentencing in 1980 indicated that sentence severity had increased between 1977 and 1980. Thus the earlier projection figures, by underesti mating actual sentence severity, had underestimated the decline in the proportion of offenders that would be imprisoned and overestimated the increase in sentence length that would result from the guidelines. -
303 13. The study almost was not conducted because the chair and several members did not understand the value of information on existing practices as a departure point for shaping the guidelines and feared "making decisions based on a computer." 14. The costs of housing prisoners in state prisons come from the state's budget; maintenance of offenders in jail facilities is a county expense. Thus decreased use of prisons and increased jail populations had fiscal consequences for many counties. 15. Under the Community Corrections Act, counties were expected to keep felons sentenced to less than 5 years in local facilities. To encourage local treatment counties were given a subsidy to develop local programs from which were deducted the per diem expenses of those ~chargeable" felons with terms of less than 5 years that were sent to state prison. Realizing that under the guidelines some chargeable offenders would be sent to state prison, the commission recommended passage of legislation providing that counties not be charged for any offender sentenced according to the guidelines. 16. In August 1982 Governor Quie reappointed William Falvey (public defender), Stephen Rathke (county attor- ney), and Barbara Andrus (citizen) to the commission. He appointed Daniel Cain to replace Jan Smaby (citizen) and Sheriff James Trudeau to the new law enforcement seat created by the legislature to replace the seat formerly held by the chair of the parole board. He named Rathke chair. Chief Justice Amdahl named Justice Glen Kelley to serve in his own place and reappointed judges Russell Olson and David Marsden. In October Orv Pung became commissioner of corrections and thus a member of the MSGC. REFERENCES Elazar, D.J. 1972 American Federalism: A View from the States. . . . 2nd edition. New York: Thomas Y. Crowell. Lipton, D., R. Martinson, and J. Wilks 1975 The Effectiveness of Correctional Treatment: A Review and Agenda for Research. Report #R-2497-CRB. Santa Monica, Calif.: Rand Corporation.
304 Messinger, S.L., and P.E . Johnson 1978 California's determinate sentencing statute: history and issues. Pp. 13-58 in Determinate Sentencing: Reform or Regression? Washing ton, D.C.: U.S. Department of Justice. Parent, D., and K.A. Knapp 197 8 Concept Paper on Guidel ine Development . Minnesota Sentencing Guidelines Commission, St. Paul, Minn. van Hirsch, Andrew 1976 Doing Justice: The Choice of Punishments. New York: Hill and Wang . Wilkins, L.T. 1981 The Principles of Guidelines for Sentencing: Methodological Issues in Their Development. Washington, D.C.: U.S. Department of Justice. Wilkins, L., J. Kress, D. Gottfredson, J. Calpin, and A. Gelman 1978 Sentencing Guidelines: Structuring Judicial Discretiol=-Report on the Feasibility Study. Washington, D.C.: U.S. Department of Justice. Wil son, James Q . 1975 Thinking About Crime. New York: Basic Books.
