Project Director: Brian Ostrom, Ph.D. National Center for State Courts Assessing Consistency &...

Project Director:

Brian Ostrom, Ph.D.National Center for State Courts

Assessing Consistency &Fairness in Sentencing:

A Comparative Study in Three States

Final Report

Purpose of structured sentencing

Assessing Consistency and Fairness in Sentencing:A Comparative Study in Three States

“The end is not the process in itself, but the substantive goal that trial judges exercise independent and deliberative judgment about each sentence—making these sentences more than an algebraic equation and less than a Rorschach test.”

Judge Jeffrey Sutton

What is the research goal?


The degree to which a sentencing system contributes to the maintenance of justice depends in large measure on three central issues:

Consistency--like cases are treated alike

Proportionality– more serious offenders are punished more severely

Lack of discrimination—age, gender and race are insignificant in who goes to prison and for how long

Why these 3 states?


• Well-respected systems

• Alternative design strategies

• Voluntary and presumptive

• Data is more readily obtainable

These states represent 3 distinct approaches to structuring judicial discretion

What type of data analysis is used?


• Multivariate statistical analysis (various techniques)

• Reviewing all other state guideline systems, and

assessing impact of recent supreme court decisions

• Review and comment by commission and staff

Continuum of sentencing guidelines


• Enforceable rule related to guideline use

• Completion of guideline forms required

• Sentencing commission monitors compliance

• Compelling and substantial reason for departure

• Written reason required for departure

• Appellate review

Produced scheme to assess each SG structure


I II III IV V VIEnforceable

RuleWorksheet Completion

S.G. Monitors Compliance

Departure Rationale

Written Reason

Appellate Review Total

North Carolina 2 2 2 2 2 2 12Minnesota 1 2 2 2 2 2 11Oregon 1 2 1 2 2 2 10Kansas 1 2 1 2 2 2 10Washington 1 1 2 2 2 2 10Pennsylvania 0 2 2 1 2 2 9Michigan 1 1 0 2 2 2 8Maryland 0 2 1 2 2 0 7Massachusetts 0 1 1 1 2 2 7Alaska 0 2 0 1 2 2 7Virginia 0 2 2 0 2 0 6Delaw are 0 2 0 2 2 0 6Utah 0 2 2 1 1 0 6Louisiana 0 2 0 0 2 1 5Arkansas 0 2 1 0 0 1 4Tennessee 0 1 0 0 1 1 3District of Columbia 0 0 1 0 2 0 3Alabama 0 2 0 0 1 0 3Missouri 0 2 0 0 0 0 2Ohio 1 0 0 0 0 0 1Wisconsin 0 0 0 0 0 1 1

Average 0.4 1.5 0.9 1.0 1.5 1.0 6.2

Produced a State Guideline Continuum


1 2 3 4 5 6 7 8 9 10 11 12

NCMN

OR

KS

WAWI

PAMIMD

MAVA

AKDE

LA UTAROH MO

AL

DC

TN

More Voluntary

More Mandatory

1 2 3 4 5 6 7 8 9 10 11 12

NCMN

OR

KS

WAWI

PAMIMD

MAVA

AKDE

LA UTAROH MO

AL

DC

TN

More Voluntary

More Mandatory

Minnesota: presumptive, determinate, and tighter ranges

Michigan: presumptive, indeterminate, and wider ranges

Virginia: voluntary and widest ranges

Modeling strategy


Simulate the actual sentencing process by modeling the content and form of information received by the judge at the time of sentencing

Do the basic design features of the guidelines serve to locate similarly situated offenders in terms of location and duration?

Do the guidelines in operation provide clear-cut and proportional distinctions between more serious and less serious offenders?

Is there evidence of discrimination distinct from inconsistency in sentencing?

Comparing Minnesota, Michigan, and Virginia


Comparative Factor Minnesota Michigan Assault Burglary

Sentencing Commisison Active Abolished

Guideline Type Grid Grid

Number of "cells" 77 258

Average Range within Cell 10-15% 50-67%

Degree of Cell Overlap very low high

Percent to Prison 24% 16% 51% 49%

Average Prison Sentence 45.54 40.46 57.21 48.46

Truth in Sentencing 67% 100%

Departure Policy Firm Firm Form Only Form Only

Departure Frequency High Low Moderate Moderate

Departure Magnitude Low High Moderate Moderate

% Above 47.8% 121.0% 77.0% 42.0%

% Below -29.1% -48.5% -55.0% -55.0%

Proportionality High High Low Low

Percent Correctly Predicted 87.0% 89.9% 75.3% 81.4%

PRE 55.8% 45.8% 59.2% 68.5%

Percent Prison Correct 92.5% 99.0% 70.7% 83.6%

Percent No Prison Correct 69.5% 54.0% 80.1% 79.2%

Estimated R2 86.1% 67.2% 55.4% 49.3%

Hazard rate Insignificant

60-66%

high

85%

Virginia

Active

List

No cells


• Focus on these individual crime groups:

• Assault

• Larceny

• Burglary

• Fraud

• Drugs

• Robbery

• Look at the decision making associated with

• Worksheet A – to model prison/no prison decision

• Worksheet C – to model prison sentence length decision

Concentrating on Virginia….

Concentrating on Virginia….


CrimeGroup N % Prison

AveragePrison

(months)

Assault 1,614 78.2% 57.21

Burglary 1,668 49.1% 48.45

Fraud 3,343 26.1% 23.93

Larceny 5,494 26.3% 26.91

Narcotics 7,404 26.9% 35.37

Robbery 928 85.8% 116.78

Six Group Total 20,451 32.9% 45.94

All Offenders 27,559 35.4% 53.62

Consistency…


Null Model

What we predicted

Michigan 81 89

Minnesota 71 87

Virginia

Assault 60 75

Burglary 59 81

Narcotics 68 82

Larceny 68 84

Fraud 68 85

Robbery 84 89

How well do we predict who goes to prison?(percentages)

Consistency…


Points Months Points Months Points Months Points Months Points Months Points Months

7 13.3 1-8 17.6 1-6 17.3 1-6 18.9 1-5 15.8 1-20 23.5

8 11.7 9 19.6 7 18.3 7 20.9 6-10 17.5 21-38 37.3

14 15.2 10-16 24.4 8 17.5 8-9 21.2 11-15 18.2 39-58 60.6

16-17 15.8 18 26.2 9 19.3 10 21.3 16-18 20.8 59-64 67.1

32-34 23.9 19-36 42.6 10 19.6 11-14 24.3 19-21 24.7 65-92 98.3

68 42.5 38-56 67.5 11-12 20.4 15-22 26.9 22-35 27.3 93-128 115.7

88 54.2 60-99 71.6 13-14 22.3 28 35.9 36-59 37.2 129-168 139.9

>88 93.0 100+ 155.5 15+ 30.2 29+ 45.6 60+ 56.9 169+ 205.2

Assault Burglary Fraud

Primary Offense Primary Offense Primary Offense

As Point Values Increase, Months Of Sentence Also Rises

Consistency…


Figure 6-2b: Estimated Probabaility of Prison by Total Section A Points -- Burglary

0.00

0.10

0.20

0.30

0.40

0.50

0.60

0.70

0.80

0.90

1.00

0 4 8 12 16 20 24 28 32 36 40 44 48

Section A Total Points

Es

tim

ate

d P

rob

ab

ility

of

Pri

so

n

Estimated Probability Actual Percentage

Burglary: Estimated Probability of Prison Sentence by Worksheet A Point Value

Proportionality…


Proportionality…


Note: Above is a partial list of the prior record factors that were examined.

Discrimination….


Which blocks (groups) of factors are most significant in predicting the Prison In/Out Decision?

= Significant = Not significant

Michigan Minnesota Assault Burglary Narcotics Larceny Fraud Robbery

Conviction Offense Severity

Offense Seriousness

Counts/Add'l Offenses

Prior Record

Grid Cell Type

Habitual Offender

Extra Guideline Factors

Trial

Sex

Race

Sentencing Circuit

Virginia

Comparing Outstate and Southeast Michigan


Average Difference Between Outstate and SE Michigan Sentences by Crime Class

0%

10%

20%

30%

40%

A B C D E F G H

Comparing Outstate and Hennepin Co. Minnesota


-40%

-30%

-20%

-10%

0%

10%

20%

30%

40%

XI X IX VIII VII VI V IV III III I

Percent Difference Between Predicted Outstate and Hennepin Sentence Length

-20%

-10%

0%

10%

20%

30%

40%

XI X IX VIII VII VI V IV III III I

Conviction Offense Severity Level

Conclusions:


Consistency achieved in all three guideline systems

A challenge for all systems lies in proportionality

Virginia guidelines have successfully eliminated any evidence of systematic discrimination

•Sex •Race•geography

Status of Project


• Peer review complete

• NIJ reviewing report

•2008 NASC conference

Project Director: Brian Ostrom, Ph.D. National Center for State Courts Assessing Consistency &...

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