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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
.
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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
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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.
-
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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.
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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.
Representative terms from entire chapter:
parole board
