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Criminology Discretion in the Criminal Justice System
by
Shawn D. Bushway, Brian Forst

Introduction

Discretion is the latitude granted officials to act under a formal set of rules and in a public capacity. The rules themselves are usually the result of discretion by other actors in the criminal justice system, such as the legislature, which has created the criminal code for the jurisdiction. However, even the most detailed rules allow for discretion, and it is possible that this discretion will allow actors subject to the rules to countermand or contradict the rules. The best example of this type of contradiction comes in the case of mandatory sentences, where legislative intent is frequently averted through the use of prosecutorial discretion. Even if executed “within” the rules, however, discretion can lead directly to disparity, where “like” cases are treated differently. In the case of sentencing, disparity involves the application of different punishments to cases that appear to be identical on the merits, or alternatively, the application of same punishment to cases that appear different. It is common to focus on disparity along a particular dimension, such as race. Disparity in this framework takes on a different meaning, and refers instead to the fact that individuals with a given characteristic are over- (or under-) represented in the criminal justice system relative to their representation either in the population or in the commission of a type of crime. Racial disparity is further decomposed into two types: warranted or unwarranted. Warranted disparity is the variation in outcomes due to legally relevant factors such as criminal history, crime type, and crime severity, which are correlated with race. Unwarranted disparity is the variation in outcomes that can be reasonably identified as being the sole result of race or other extralegal factors (e.g., gender) after all legally mandated sentencing factors are taken into account. This framework crystallizes the importance of rules in the empirical analysis of discretion. Any analysis that does not fully account for the legally mandated process (and factors) runs the risk of mistakenly labeling disparity as unwarranted when, in fact, it may be “warranted” according to the rules of the system. But it also raises the specter of too much deference to the rules, especially in cases where the rules themselves have the potential to create disparity, as in the case of federal rules that call for tougher sanctions for dealing in “crack” cocaine rather than powder cocaine. For both of these reasons, any discussion of discretion must start from a review of the goals of the system and an understanding of how these goals are reflected in the formal rules of a system with many moving parts.

General Overviews

In their account of the American Bar Foundation survey of 1953–1969 (Ohlin and Remington 1993), Editors Lloyd Ohlin and Frank Remington highlight the central importance of discretion in the functioning of the criminal justice system (CJS). They describe the CJS as a complicated set of interdependent actors who act on cases involving individuals accused of crimes. Samuel Walker 1992 adds that the term system is perhaps misleading, because the police, courts, and corrections are largely independent of one another, although the actions of each set of actors clearly have an impact on the others. The President’s Commission on Law Enforcement and Administration of Justice and Katzenbach 1967 elaborated on the American Bar Foundation survey by describing the complex web of relationships among these actors. For example, while judges can exercise discretion only in cases involving arrested offenders that prosecutors charge with crimes, sentencing policies and practices influence the actions of police and prosecutors. Because of the salience of sentencing policy to the exercise of discretion generally, sentencing policy warrants treatment as a driver of discretion. The National Research Council’s 1983, a landmark review of sentencing, offers a first systematic assessment of sentencing goals, policies, and the disparity and discrimination that can follow a lack of consensus on the fundamental purposes of sentencing. Two other classics on discretion are also included here: First, Dworkin 1977 treatment of the subject, which distinguishes between the routine exercise of discretion and the more controversial use of discretion to alter policies viewed as misguided; and second, Gottfredson and Gottfredson 1988, a book on discretion, which offers a thoughtful account of the essential aspects of discretion and how it can be used effectively to improve the functioning of the criminal justice system.

  • Dworkin, Ronald. 1977. Taking rights seriously. Cambridge, MA: Harvard Univ. Press.

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    This book is a legal-theory classic on discretion. It distinguishes discretion from ordinary personal decision making, not accountable to a set of standards or a higher authority (p. 31). Dworkin distinguishes further between “weak” (ordinary judgment) and “strong” discretion (pp. 31–32), which draws on principles and is invoked under a duty that transcends normally applicable technical rules, relating to an “ultimate social rule or set of social rules” (p. 69).

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  • Gottfredson, Michael R., and Don M. Gottfredson. 1988. Decision making in criminal justice: Toward the rational exercise of discretion. New York: Plenum.

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    An excellent book-length treatment of the decisions that create the flowchart in President’s Commission on Law Enforcement and Administration of Justice and Katzenbach 1967, including the decision by the victim to report the crime, an often overlooked part of the process. This text is probably best for a graduate-level class.

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  • National Research Council 1983. “Sentencing practices and the sentencing reform movement.” In Research on sentencing: The search for reform. Vol. 1. Edited by Alfred Blumstein, 39–68. Washington, DC: National Academies.

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    This is the introduction to the landmark National Research Council volume on sentencing. The first chapter is a very readable discussion of the actors in the system, including the legislatures. The chapter is particularly noteworthy for its discussion of the goals of the system, including justice, fairness, and crime control/prevention, and the changing nature of these goals. Recommended for all readers.

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  • Ohlin, Lloyd E., and Frank J. Remington. 1993. Discretion in criminal justice: The tension between individualization and uniformity. SUNY Series in New Directions in Criminal Justice Studies. Albany: State Univ. of New York Press.

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    Based on the landmark 1957 American Bar Foundation survey, this anthology gives a systemic view of the criminal justice system, in terms of the decisions made by police, prosecutors, judges, and corrections officials: practitioners prefer flexibility to rules; discretion is exercised mostly at the lowest levels of the organization (especially in policing and prosecution) and with limited transparency; and attempts to control decisions at one stage affect decisions made by agents at other stages of the process, in a hydraulic manner.

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  • President’s Commission on Law Enforcement and Administration of Justice and Nicholas de B. Katzenbach. 1967. The challenge of crime in a free society. Washington, DC: Government Printing Office.

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    This is an important historical document notable for its inclusion of the now-iconic “criminal justice flowchart” (pp. 8–9), which highlights the complexity of the system and the process of selection by which ever fewer defendants proceed farther into the system. The document is also notable for its consideration of police, courts, and corrections (chapters 4, 5, and 6) in the context of crime control. An updated version of the chart can be found on the Bureau of Justice Statistics website.

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  • Walker, Samuel. 1992. Origins of the contemporary criminal justice paradigm: The American Bar Foundation survey, 1953–1969. Justice Quarterly 9.1: 47–76.

    DOI: 10.1080/07418829200091251Save Citation »Export Citation »E-mail Citation »

    Although somewhat unconventional in its historical approach, the article does a good job of describing the evolution of the concept of the “criminal justice system” and the role of discretion within that system. The paper is very readable and should generate much discussion about the importance of paradigms in a graduate or undergraduate class.

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General Theories of Sentencing

We can begin to understand the exercise of discretion when we understand the theories that underlie the setting of criminal justice sanctions. Several works deal with key aspects of these theories. Andrew von Hirsch, a long-time advocate of sentencing guidelines based on the principle of “just deserts”—the idea that sanctions should be proportional to the seriousness of the crime—gives an updated account of this principle in von Hirsch and Ashworth 2005. Thorburn and Manson 2007 addresses two distinct views of sanctions as deserved punishments, finding that the differences may be more theoretical than real. Reitz 1998 offers a clear and comprehensive treatment of the exercise of discretion in sentencing, while Garber, et al. 1983 and Dixon 1995 emphasize the importance of the setting in shaping the exercise of discretion in sentencing. Landes 1971 complements these treatments of sentencing by focusing on discretion exercised by the prosecutor.

  • Dixon, Jo. 1995. The organizational context of criminal sentencing. American Journal of Sociology 100:1157–1198.

    DOI: 10.1086/230635Save Citation »Export Citation »E-mail Citation »

    This paper provides a sociological perspective on ways in which sociological structure can influence the exercise of discretion within the criminal justice system. The paper is empirical, but has a good literature review and introduction.

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  • Garber, Steven, Steven Klepper, and Daniel Nagin. 1983. The role of extralegal factors in determining criminal case disposition. In Research on sentencing: The search for reform. Vol. 2. Edited by Alfred Blumstein, 129–183. Washington, DC: National Academies.

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    The authors specify a formal, complex model of decision making in the criminal justice system and argue that such a model is necessary to support valid causal estimates of discretion in the criminal justice system. They do not actually estimate a model, but the paper is worth reading for a researcher interested in thinking about the empirical challenges associated with studying discretion in sentencing.

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  • Landes, William. 1971. An economic analysis of the courts. Journal of Labor Economics 14.1: 61–107.

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    Landes provides a mathematical model of court behavior, starting with the idea that the prosecutor is a rational actor aiming to maximize convictions weighted by offense seriousness, which he then tests with data. The paper demonstrates how formal theory can help provide insight into the workings of the criminal justice system. This is a foundational paper in law and economics, but it is not well known in criminology.

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  • Reitz, Kevin. 1998. Modeling discretion in American sentencing systems. Law and Policy 20.4: 389–428.

    DOI: 10.1111/1467-9930.00056Save Citation »Export Citation »E-mail Citation »

    A must-read for scholars interested in how discretion moves between actors in the system. Perhaps the single clearest article outlining the way rules can shape and limit discretion. Also discusses the idea of hydraulic displacement of discretion, whereby limits on the discretion of one group of actors displaces that discretion to other actors.

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  • Thorburn, Malcolm, and Allan Manson. 2007. The sentencing theory debate: Divergence in reasoning, convergence in outcomes. New Criminal Law Review 10.2: 278–310.

    DOI: 10.1525/nclr.2007.10.2.278Save Citation »Export Citation »E-mail Citation »

    An accessible account of the long-standing debate between the two dominant theories of sentencing—Andrew von Hirsch’s just deserts and Norval Morris’s limiting retributivism. The article highlights the key principles involved in this high-level discussion about the goals of sentencing, including institutional form and the proper legal code.

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  • Von Hirsch, Andrew, and Andrew Ashworth. 2005. Proportionate sentencing: Exploring the principles. Oxford Monographs on Criminal Law and Criminal Justice. Oxford: Oxford Univ. Press.

    DOI: 10.1093/acprof:oso/9780199272600.001.0001Save Citation »Export Citation »E-mail Citation »

    Book-length treatment of “just deserts” and the ongoing debate about the implications of this particular theory of sentencing. It does a good job of both recapping older work on this subject and presenting what the authors see as its current challenges.

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Outcomes and Goals

Discretion is used to achieve certain goals. The big three are crime control/prevention, fairness/equity, and justice. To understand discretion, it is important to know how sentencing is linked to these different outcomes. What follows should provide an introduction to what are of themselves large literatures.

Selection Bias

Efforts to estimate the impact of any given variable on sentencing outcomes will be affected by the nature of the sample available to researchers. Often, we are interested in the role of a variable on all people in the criminal justice system, although we do not have information on all of them. This is known as the problem of selection bias, and it is a major problem when nonrandom samples are used to analyze the exercise of discretion in sentencing research. Although solutions are not always available, researchers in the literature should be aware of how selection bias could affect the interpretation of their results. Berk 1983 is an introduction to the problem of selection bias that describes the problem and its implications effectively, and Bushway, et al. 2007 reviews the importance of adjustments for the bias in criminology over a twenty-year period.

  • Berk, Richard. 1983. An introduction to sample selection bias in sociological data. American Sociological Review 48.3: 386–398.

    DOI: 10.2307/2095230Save Citation »Export Citation »E-mail Citation »

    The definitive description of selection bias in the sociological literature using sentencing as an example. Although now over twenty-five years old, this paper stands the test of time as a readable and articulate description of the problem.

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  • Bushway, Shawn, Brian Johnson, and Lee Ann Slocum. 2007. Is the magic still there? The relevance of the Heckman two-step correction for selection bias in criminology. Journal of Quantitative Criminology 23.2: 151–178.

    DOI: 10.1007/s10940-007-9024-4Save Citation »Export Citation »E-mail Citation »

    This paper reviews twenty years of research in criminology regarding the use of a particular technique for the correction of selection bias. The paper serves as a useful entry point for researchers concerned about the problem of selection bias in their own research.

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Crime Control and Crime Prevention

Sentences are based primarily on the gravity of the crime committed, but they are based also on considerations having to do with crime control. The exercise of discretion in selecting among interventions depends heavily on crime-control objectives, and there is considerable disagreement over those objectives: whether to sanction in such a way that sends a message to prospective offenders (general deterrence), whether to sanction in such a way that leaves a lasting impression on the offender, thus discouraging him or her from recidivism (specific or individual deterrence), or whether to protect society by removing proven dangerous offenders from the streets where they might reoffend (incapacitation).

Nonspecific Causes

Two articles are useful to set up the discussion of specific links between criminal justice interventions and crime control: Donohue 2009, an article on the benefits and costs of the expansion of prisons and Miles and Ludwig2007, an article on the superiority of valid estimates of the overall effects of interventions on crime over attempts to distinguish whether the effects are due to deterrence or incapacitation.

  • Donohue, John J. III. 2009. Assessing the relative benefits of incarceration: Overall changes and the benefits on the margin. In Do prisons make us safer? The benefits and costs of the prison boom. Edited by Stephen Raphael and Michael Stoll, 269–342. New York: Russell Sage Foundation.

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    Detailed cost-benefit analysis of the current levels of incarceration. While no exact answer is provided about the ideal level of incarceration, the exercise itself is a useful tour of the issues involved in evaluating the crime-control benefits of incarceration, particularly for a graduate-level audience.

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  • Miles, Thomas J., and Jens Ludwig. 2007. The silence of the lambdas: Deterring incapacitation research. Journal of Quantitative Criminology 23:287–301.

    DOI: 10.1007/s10940-007-9031-5Save Citation »Export Citation »E-mail Citation »

    Two economists argue that the specific mechanism by which the criminal justice system reduces crime—especially the question, how much by deterrence and how much by incapacitation—is unimportant. Rather, they argue for better empirical estimation of the relationship between criminal justice policy and crime in general.

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General Deterrence

The literature on the ability of sanctions imposed on some people to deter others is vast, but some articles and books are more useful than others. Foremost among these are Nagin 1998, an overview of deterrence research, and Tonry 2008, an assessment of the limitations of the research. Kennedy 2009 makes a useful distinction between targeted community interventions that can achieve deterrent effects more effectively and efficiently and the more traditional blunt interventions. Because of the popularity of “three strikes” laws in many states, we also include Helland and Tabarrok 2007, an analysis of the marginal benefit of the third strike for offenders who already have two.

  • Helland, Eric, and Alex Tabarrok. 2007. Does three strikes deter: A non-parametric investigation. Journal of Human Resources 42.2: 309–330.

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    A clever empirical test of the ability of a particular law enacted by the legislature—the “three strikes” law in California—to deter offenders with two strikes. They find that the threat of the third strike reduces offending by about 20 percent.

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  • Kennedy, David M. 2009. Deterrence and crime prevention: Reconsidering the prospect of sanction. Routledge Studies in Crime and Economics 2. New York: Routledge.

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    In this book Kennedy observes that discretion in setting policy by the police precinct or district commander, or by the chief, can have significant deterrent impacts on crime. He distinguishes between “predominantly ordinary” exercise of discretion and the selective targeting of resources on problems in the community to prevent crime (pp. 109–110), along lines that echo Dworkin’s distinction between “soft” and “hard” discretion (See Dworkin 1977, cited under General Overviews.

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  • Nagin, Daniel. 1998. Criminal deterrence research at the outset of the twenty-first century. Crime and Justice 23:1–42.

    DOI: 10.1086/449268Save Citation »Export Citation »E-mail Citation »

    A thorough and fair review of the literature on the empirical research testing for a link between actions of the criminal justice system and crime prevention through the mechanism of deterrence.

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  • Tonry, Michael 2008. Learning from the limitations of deterrence research. Crime and Justice 37:279–312.

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    An informed and refreshingly dispassionate critique of the ability of sentencing policy to achieve deterrence, by a leading sentencing researcher.

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Specific Deterrence

Much has been written on the effect of sanctions on recidivism, but two stand out: Nagin et al. 2009, a review of the effect of the certainty (i.e., likelihood) of incarceration on subsequent offending patterns, and Doob and Webster 2003, a review of the effect of sentence severity (term of incarceration) on recidivism.

  • Doob, Anthony, and Cheryl Webster. 2003. Sentence severity and crime: Accepting the null hypothesis. Crime and Justice: A Review of Research 30:143–195.

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    An excellent review of the literature on the impact of sentences of different lengths on subsequent criminal behavior. The review, written by criminologists, is at times combative toward economists. This tension is instructive, particularly for graduate students trying to understand the conflicting tendencies of research in criminology and economics.

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  • Nagin, Daniel S., Francis T. Cullen, and Cheryl Jonson. 2009. Imprisonment and reoffending. Crime and Justice 38:115–200.

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    A definitive review of research on the impact of incarceration sentences on the subsequent behavior of sentenced offenders. Although the research is limited, incarceration (rather than probation) appears to cause either no effect or increased crime after release. If this is true, then discretion exercised in the name of specifically deterring offenders is probably misplaced.

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Incapacitation

The literature on incapacitation effects is smaller than that on deterrence, but no less important, especially for crimes and circumstances in which the incapacitative effects may be larger. Three useful articles are included here: the first, Piquero and Blumstein 2007, provides an overview of the literature; the second, Owens 2009, focuses on the incapacitative effects of sentencing “enhancements”; and the third, Sweeten and Apel 2007, describes a new method for estimating the incapacitation effects of a year in prison.

  • Owens, Emily 2009. More time, less crime? Estimating the incapacitative effects of sentence enhancements. Journal of Law and Economics 52.3: 551–579.

    DOI: 10.1086/593141Save Citation »Export Citation »E-mail Citation »

    This paper represents another creative empirical attempt to tie changes in sentencing practice to individual behavior, using data from Maryland. The estimates for the value of a year of prison is an order of magnitude smaller than the consensus found in the literature reviewed by Piquero and Blumstein 2007.

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  • Piquero, Alex R., and Alfred Blumstein. 2007. Does incapacitation reduce crime? In Special Issue: Incapacitation. Edited by Shawn Bushway and Peter Reuter. Journal of Quantitative Criminology 23.4: 267–286.

    DOI: 10.1007/s10940-007-9030-6Save Citation »Export Citation »E-mail Citation »

    A solid review of the traditional criminological literature on incapacitation, including a discussion of the criminal career model.

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  • Sweeten, Gary, and Robert Apel. 2007. Incapacitation: Revisiting an old question with a new method and new data. Journal of Quantitative Criminology 23.4: 303–326.

    DOI: 10.1007/s10940-007-9032-4Save Citation »Export Citation »E-mail Citation »

    A useful empirical article by two criminologists using nationally representative panel data to generate estimates of the incapacitative impact of a year in prison.

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Fairness and Racial Disparity

There is a large literature on racial disparity in the US criminal justice system. Sampson and Lauritsen 1997 frames the issue quite broadly, while Zatz 1987 and Spohn 2000 both provide very readable surveys of the empirical research on disparity in sentencing. Klepper, et al. 1983 highlights the empirical challenges that haunt efforts to generate quality empirical estimates. Blumstein 1993 provides a novel way to get around some of these challenges, and Tonry and Melewski 2008 applies Blumstein’s method to more recent data.

  • Blumstein, Alfred. 1993. Racial disproportionality of U.S. prison populations revisited. University of Colorado Law Review 64:743–760.

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    This paper presents a simple yet novel approach to control for “warranted disparity” in the prison population. Blumstein finds that racial disparity in prison for serious crimes is largely “warranted,” while the racial disparity in prison for drug crimes is not. This finding raises serious questions about the potential for racial discrimination in the mass incarceration associated with the “war on drugs.”

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  • Klepper, Steven, Daniel Nagin, and Luke-Jon Tierney. 1983. Discrimination in the criminal justice system: A critical appraisal of the literature. In Research on sentencing: The search for reform. Vol. 2. Edited by Alfred Blumstein, 55–128. Washington, DC: National Academies.

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    This review makes two still-relevant critiques about the racial disparity in sentencing literature. First, the authors note the absence of formal models of processing decisions in the criminal justice system. Second, they note the failure to deal with sample selection biases resulting from screening and processing decisions.

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  • Sampson, Robert J., and Janet L. Lauritsen. 1997. Racial and ethnic disparities in crime and criminal justice in the United States. In Ethnicity, crime, and immigration: Comparative and cross-national perspectives. Edited by Michael Tonry, 311–374. 21. Crime and Justice 21. Chicago: Univ. of Chicago Press.

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    This paper is a thorough and dispassionate review of the literature on racial disparity throughout the criminal justice system. It provides an excellent context for understanding the issue at a level that an advanced undergraduate can understand.

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  • Spohn, Cassia. 2000. Thirty years of sentencing reform: The quest for a racially neutral sentencing process. Policies, Processes, and Decisions of the Criminal Justice System. Criminal Justice 2000 3:427–501. Washington, DC: National Institute of Justice.

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    This detailed review places the research on racial disparity in the criminal justice system in the context of reform efforts that intend to reduce disparity/increase fairness.

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  • Tonry, Michael, and Matthew Melewski. 2008. The malign effects of drug and crime control policies on black Americans. Crime and Justice 37:1–44.

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    This paper updates the analysis by Blumstein 1993 and adds a theoretical dimension to the discussion about the root causes of the racial disproportionality in the criminal justice system. This paper also serves as a useful summary of a large body of influential work by Michael Tonry on the influence of race in the criminal justice system.

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  • Zatz, Marjorie S. 1987. The changing forms of racial/ethnic biases in sentencing. Journal of Research in Crime and Delinquency 24.1: 69–92.

    DOI: 10.1177/0022427887024001005Save Citation »Export Citation »E-mail Citation »

    This heavily cited article is an easy-to-read review of research that divides prior research into four types and lays out the key issues involved with doing quality research in this area.

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Justice and Wrongful Conviction

The exercise of discretion can be especially effective when it reduces miscarriages of justice and especially toxic when it creates them. The six entries described below deal with these prospects and problems. Forst 2004 describes the problem of errors of justice, including wrongful convictions and failures to convict culpable offenders, and how the police, prosecutors, and judges contribute to both types of miscarriages of justice, their costs and effects on criminal justice legitimacy, and how they can be reduced. Bohm 2005 notes that errors of impunity (wrongful failures to convict) deserve more attention than they have received. The National Research Council 2009 argues that both types of errors of justice can be reduced through the expanded use and improved collection and analysis of forensic evidence. The other three articles focus on wrongful convictions: Leo 2005 makes the case for the development of a criminology of wrongful conviction, proposing a typology of distinct genres of literature on the subject; Zalman 2006 sets forth a research agenda to deepen our understanding of wrongful convictions; and Wells and Olson 2003 argues for research that will reduce the largest single source of wrongful convictions—erroneous witness identifications.

  • Bohm, Robert. 2005. Miscarriages of criminal justice: An introduction. Journal of Contemporary Criminal Justice 21:196–200.

    DOI: 10.1177/1043986205278811Save Citation »Export Citation »E-mail Citation »

    This article provides a brief introduction to a symposium on miscarriages of justice, and it makes an important point along the way: the literature on miscarriages of justice has been dominated by studies of wrongful convictions; “errors of impunity” or wrongful nonconvictions deserve attention too. The implications for the comprehensive study of the exercise of discretion are significant.

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  • Forst, Brian. 2004. Errors of justice: Nature, sources and remedies. Cambridge Studies in Criminology. New York: Cambridge Univ. Press.

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    This book focuses on errors of justice: wrongful convictions, intrusions on suspects, and punishments that impose excessive costs on society, as well as lapses that produce failures to arrest and convict culpable offenders and the associated social costs. It examines how police, prosecutors, and judges contribute to those errors at the level of both the individual agent and the executives who set office policy.

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  • Leo, Richard. 2005. Rethinking the study of miscarriages of justice: Developing a criminology of wrongful conviction. Journal of Contemporary Criminal Justice 21.3: 201–223.

    DOI: 10.1177/1043986205277477Save Citation »Export Citation »E-mail Citation »

    This article provides a brief history of the study of miscarriages of justice in America. It analyzes the literature on wrongful convictions in three distinct genres: big-picture studies, the specialized-causes literature, and the true-crime genre. The article argues for the systematic development of a generalizable criminology of wrongful conviction.

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  • National Research Council. 2009. Strengthening forensic science in the United States: A path forward. Washington, DC: National Academies.

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    This book argues for strengthening the criminal justice system’s capacity for conducting forensic analysis to solve cases and reduce wrongful convictions, and it provides a detailed plan for doing so. It recommends that a new government agency be created—the National Institute of Forensic Science—to establish and enforce standards that will hold the police and prosecutors more accountable in their exercise of discretion.

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  • Wells, Gary L., and Elizabeth A. Olson. 2003. Eyewitness testimony. Annual Review of Psychology 54:277–295.

    DOI: 10.1146/annurev.psych.54.101601.145028Save Citation »Export Citation »E-mail Citation »

    Wells and Olson observe in this article that mistaken eyewitness identification is the largest single source of wrongful conviction, and the field of psychology has built the only scientific literature on eyewitness identification. They identify the major factors associated with misidentification and argue for research based on stronger theory and greater use of base-rate information from actual cases.

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  • Zalman, Marvin. 2006. Criminal justice system reform and wrongful conviction: A research agenda. Criminal Justice Policy Review 17.4: 468–492.

    DOI: 10.1177/0887403406292740Save Citation »Export Citation »E-mail Citation »

    This article describes the significance of wrongful conviction as a criminal justice policy issue and suggests a research agenda for criminal justice scholars, especially those interested in protecting rights to due process. Research models from political science and sociology are highlighted to illustrate how the study of public policy, social movements, and interest groups can offer insights into the criminal justice system’s capacity for reform.

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Individual Discretion

Any actor in the criminal justice system ultimately has the ability to act on his or her own accord. This can lead to disparity or allow the introduction of personal bias, but it can also lead to positive outcomes, particularly if the discretion is used to further the goals of justice in a case that may not “fit” the standards or rules that are currently in place. Discretion may also be necessary to motivate offenders to change by providing incentives for good behavior. Recent discussions of reentry by Jeremy Travis and Joan Petersilia have questioned the move to determinate sentencing on the grounds that the lack of discretion by parole agents has removed the incentives to participate in programs and a structured path toward a positive reentry. In what follows, we provide some references to interesting and important empirical articles about the exercise and constraint of individual discretion by a variety of actors in the criminal justice system. It is by no means comprehensive, and researchers interested in a comprehensive review of research on police or other actors in the criminal justice system should consult the relevant bibliography.

Police

Police obviously have the ability to exercise a great deal of discretion. Mastrofski 2004, a discussion of the important National Research Council review integrates research results with policy. Ridgeway and MacDonald 2009 presents an intriguing statistical technique designed to identify potentially problematic police officers proactively based on stop activity. Engel 2008 and Persico and Todd 2008 discuss a method for identifying racial profiling at the agency level called outcome analysis. Newly available administrative data on police actions present exciting new opportunities for researchers and policymakers to identify and manage police discretion.

  • Engel, Robin. 2008. A critique of the outcome test in racial profiling research. Justice Quarterly 25.1: 1–36.

    DOI: 10.1080/07418820701717177Save Citation »Export Citation »E-mail Citation »

    The outcome test is a method developed by economists to test for systematic racial profiling by police officers. The outcome test has been widely adopted as a valid tool to identify racial profiling, but it is by no means accepted by all scholars. Engel provides an accessible discussion of the technique, along with an intelligent critique of the approach.

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  • Mastrofski, Steve. 2004. Controlling street-level police discretion. Annals of the American Academy of Political and Social Science 593.1: 100–118.

    DOI: 10.1177/0002716203262584Save Citation »Export Citation »E-mail Citation »

    This paper provides a review of the National Research Council report by the Committee to Review Research on Police Policy and Practices entitled Fairness and effectiveness in Policing: The evidence. The report itself is an interesting read for researchers interested in getting an assessment of the current state of the literature, but this paper goes a step farther to discuss the management of individual police discretion.

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  • Persico, Nicola, and Petra Todd. 2008. The hit rates test for racial bias in motor vehicle searches. Justice Quarterly 25.1: 37–53.

    DOI: 10.1080/07418820701717201Save Citation »Export Citation »E-mail Citation »

    This paper is a response to Engel 2008 by two of the authors of the original article developing the technique. Nontechnical readers of these two articles should be able to learn enough from these articles to evaluate/understand the hit rates test. This paper will also help more technical readers who lack experience with economic perspectives to read the relevant papers that develop and apply this approach.

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  • Ridgeway, Greg, and John MacDonald. 2009. Doubly robust internal benchmarking and false discovery rates for detecting racial bias in police stops. Journal of the American Statistical Association 104:661–668.

    DOI: 10.1198/jasa.2009.0034Save Citation »Export Citation »E-mail Citation »

    This paper provides a method for identifying police officers who appear to stop minority suspects at an apparently inflated rate using police-stop data from New York City. The paper’s value is in the statistical rigor and the demonstration of an actual attempt by New York City to manage individual discretion.

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Legislatures

The inclusion of legislatures in a section on individual discretion is outside the conventional literature on discretion. But legislatures do set policy, and a simple examination of the criminal justice systems in the United States should be enough to convince even the casual readers that these actors can act differently and create different outcomes. Tonry 1998 provides an excellent overview of the different ways in which legislatures can structure the sentencing process, and Stemen and Rengifo 2005 provides the details on the many ways in which states in the United States differ in their sentencing structures.

  • Stemen, Donald, and Andres Rengifo. 2005. Of fragmentation and ferment: The impact of state sentencing policies on incarceration rates 1975–2002. Final Report to the National Institute of Justice. Washington, DC: U.S. Department of Justice.

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    This report presents a comprehensive survey of state criminal-sentencing practices and is an important resource for scholars attempting to describe, explain, or understand interstate differences in criminal justice policies.

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  • Tonry, Michael. 1998. Sentencing matters. New York: Oxford Univ. Press.

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    This book provides a very readable survey of sentencing reform in the United States as well as a good comparison with the practices of other Western governments. The book would fit well in a graduate-level or even an advanced undergraduate class on sentencing.

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Prosecutors

Several authorities describe the prosecutor’s discretion as more powerful than that of any other actor in the criminal justice system. The seven entries below cover the most salient aspects of this power. Forst 2011 gives an overview of prosecutors and the range of their discretionary authority. Spohn and Fornango 2009 reveals that the disparities across prosecutors can be substantial, even when sentencing guidelines are restrictive. Three other articles focus on the prosecutor’s discretion in plea bargaining: Smith 1986 estimates the determinants and average size of the sanction discount associated with pleas; Piehl and Bushway 2007 expands on Smith’s work with a cross-jurisdictional approach; and Bibas 2004 argues that deliberations based on anticipations about what will happen if the case goes to trial have been overblown. Ulmer, et al. 2007 shows how prosecutorial discretion can and has been used to counter mandatory minimum sentences. Barkow 2008 expands on Ulmer’s point by arguing for the expanded use of prosecutorial discretion in circumstances in which the law has encroached excessively on commonsense notions of justice as mercy.

  • Barkow, Rachel. 2008. The ascent of the administrative state and the demise of mercy. Harvard Law Review 121:1332–1365.

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    A compelling argument for the expanded use of prosecutorial discretion in circumstances in which the law has encroached excessively on commonsense notions of justice as mercy. Barkow’s central idea is that the prosecutor’s discretionary actions are less subject to review and reversal than are actions of others to countervail against poorly conceived laws.

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  • Bibas, Stephanos. 2004. Plea bargaining outside the shadow of the trial. Harvard Law Review 117.8: 2463–2547.

    DOI: 10.2307/4093404Save Citation »Export Citation »E-mail Citation »

    Bibas argues against the idea that prosecutors and others are restricted by what might happen at trial. The paper is not empirical and is easily accessible to even advanced undergraduates. Empirical researchers might find the paper helpful for generating ideas about ways to specify alternatives to the “shadow of the trial” paradigm.

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  • Forst, Brian. 2011. Prosecution. In Crime and Public Policy. 2d ed. Edited by James Q. Wilson and Joan Petersilia. New York: Oxford Univ. Press.

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    A comprehensive review of the literature on prosecutors. Prosecutors routinely exercise discretion in filing cases, determining the charges to prosecute, engaging in plea bargaining, and setting policies that affect the ratio of pleas to trials and, in turn, the number of convictions and severity of sanctions that apply to those convicted. The essay emphasizes that the prosecutor’s case-processing decisions are driven largely by office tradition, a focus on celebrity cases, and, for the bulk of serious crimes, the absence of systems of public accountability.

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  • Piehl, Anne, and Shawn Bushway. 2007. Measuring and explaining charge bargaining. Journal of Quantitative Criminology 23.2: 105–125.

    DOI: 10.1007/s10940-006-9023-xSave Citation »Export Citation »E-mail Citation »

    The authors construct a new framework for the empirical identification of prosecutorial discretion across jurisdictions. The paper, which builds directly on Smith 1986, should be of particular interest to researchers wanting to develop new ways to identify and explain prosecutorial discretion using administrative datasets.

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  • Smith, Douglas. 1986. The plea bargain controversy. Journal of Criminal Law and Criminology 77.3: 949–968.

    DOI: 0091-4169/86/7503-949Save Citation »Export Citation »E-mail Citation »

    This classic paper on plea bargaining presents an elegant empirical model designed to evaluate the size of the plea discount offered by prosecutors. The paper is noteworthy because of its use of a well-known plea-bargaining dataset to generate a counterfactual based on a formal theory of plea bargaining (“the shadow of the trial”). Smith also identifies substantial amounts of individual variation in pleas that cannot be explained by the data.

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  • Spohn, Cassia, and Robert Fornango. 2009. U.S. attorneys and substantial assistance departures: Testing for inter-prosecutor disparity. Criminology 47.3: 813–846.

    DOI: 10.1111/j.1745-9125.2009.00163.xSave Citation »Export Citation »E-mail Citation »

    This paper uses rare data on individual prosecutors in three federal jurisdictions to explore the discretionary application of substantial assistance departures in the federal guideline system. The sheer size of the interprosecutor disparity in the application of this departure underscores both the importance of research into prosecutor-level discretion and the existence of considerable prosecutorial discretion even within highly constrained sentencing structures.

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  • Ulmer, Jeffrey, Megan Kurlychek, and John Kramer. 2007. Prosecutorial discretion and the imposition of mandatory minimum sentences. Journal of Research in Crime and Delinquency 44.4: 427–458.

    DOI: 10.1177/0022427807305853Save Citation »Export Citation »E-mail Citation »

    A well-written review of the existing literature on how prosecutors use their discretion to avoid the imposition of mandatory minimums, along with a good empirical description of prosecutorial discretion in Pennsylvania. The paper also connects this literature to the broader literature on sentencing.

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Judges

Judicial discretion has arguably received more attention from both researchers and policymakers than have any other actors in the criminal justice system. Frankel 1972 provides a colorful description of why judicial discretion has been targeted for curtailment, and sets the stage for the reform efforts that have been designed to reduce or manage judicial discretion. Posner 2008 provides an entertaining overview of judicial models of behavior, while the empirical articles Albonetti 1991 and Steffensmeier, et al. 1998 present classic criminological attempts to identify key features of judicial behavior in standard conviction datasets. Guthrie, et al. 2001, Huber and Gordon 2004, Green and Winik 2010, and Schanzenbach and Tiller 2008 provide a multidisciplinary tour (psychology, law, political science, and economics) of attempts to study individual judge behavior using direct surveys and administrative data that identify individual judges. The latter approach represents a major new direction for sentencing research in criminology. The introduction of political theory by Huber and Gordon 2004 and Schanzenbach and Tiller 2008 meshes well with Posner’s preferred description of judicial behavior.

  • Albonetti, Celesta. 1991. An integration of theories to explain judicial discretion. Social Problems 38.2: 247–266.

    DOI: 10.1525/sp.1991.38.2.03a00090Save Citation »Export Citation »E-mail Citation »

    Albonetti’s paper presents the first application of new ideas from behavioral economics on the bounded nature of rational decision making to judicial decision making. This paper is among the first to connect individual discretion with individual models of decision making. Formal theoretical models of decision making lend coherence and validity to empirical tests of judicial decision making.

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  • Frankel, Marvin. 1972. Criminal sentences: Law without order. New York: Hill and Wang.

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    In this influential book, federal judge Marvin Frankel argues against the prevailing model of indeterminate sentencing, which emphasized rehabilitation and individualized sentences. Frankel argued passionately that the individual discretion available to the judges resulted in arbitrary sentences and wide disparity among otherwise similar cases. This book is an easy read and is an important historical reference for those interested in understanding the rise of sentencing commissions and sentencing guidelines.

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  • Green, Donald, and Daniel Wink. 2010. Using random judge assignments to estimate the effects of incarceration and probation on recidivism among drug offenders. Criminology 48.2: 357–387.

    DOI: 10.1111/j.1745-9125.2010.00189.xSave Citation »Export Citation »E-mail Citation »

    This paper uses interjudge variation in sentence length to identify the causal impact of incarceration on recidivism. The paper does not seek to explain or even understand this variation, but it serves as both an interesting methodological exercise and a reminder that interjudge variation could have consequences beyond disparity in sentencing.

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  • Guthrie, Chris, Jeffrey Rachlinski, and Andrew Wistrich. 2001. Inside the judicial mind. Cornell Law Review 86.4: 77–91.

    DOI: 10.2139/ssrn.257634Save Citation »Export Citation »E-mail Citation »

    The authors find that judges are as likely to fall prey to five common cognitive illusions—anchoring, framing, hindsight bias, inverse fallacy, and egocentric biases—as lay decision makers. This paper fits well with the predominant focal-concerns perspective in criminology.

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  • Huber, Gregory, and Sanford C. Gordon. 2004. Accountability and coercion: Is justice blind when it runs for office? American Journal of Political Science 48.2: 247–263.

    DOI: 10.1111/j.0092-5853.2004.00068.xSave Citation »Export Citation »E-mail Citation »

    Huber and Gordon are political scientists who make use of judge identifiers in Pennsylvania sentencing data to study within judge variation in sentencing practice. They make a compelling case that judges respond to elections with harsher sentencing practices. The focus on explaining within judge variation with sophisticated causal models is novel and important. In addition, the paper serves as an excellent introduction to the political science approach to sentencing.

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  • Posner, Richard. 2008. How judges think. Cambridge, MA: Harvard Univ. Press.

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    Richard Posner is an iconic thinker and an entertaining writer, a federal judge who is also a noted legal scholar in the field of law and economics. Posner’s main point, that judges are pragmatists who make decisions based on who they are, should help generate ideas for scholars interested in explaining interjudge disparity.

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  • Schanzenbach, Max, and Emerson Tiller. 2008. Reviewing the sentencing guidelines: Judicial politics, empirical evidence, and reform. University of Chicago Law Review 75:715–760.

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    Schanzenbach and Tiller present a rare study of individual judges in the federal system. They find that both political affiliation of the judge and the nature of the appeals process matter in the decision making of judges. The latter finding is an important reminder that institution context and process can in fact constrain individual discretion.

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  • Steffensmeier, Darrell, Jeffery Ulmer, and John Kramer. 1998. The interaction of race, gender, and age in criminal sentencing: The punishment cost of being young, black, and male. Criminology 36.4: 763–798.

    DOI: 10.1111/j.1745-9125.1998.tb01265.xSave Citation »Export Citation »E-mail Citation »

    Darrell Steffensmeier and colleagues present focal-concerns theory in this paper, which is now the dominant theoretical perspective on sentencing in criminology. The theory builds on the ideas described by Albonetti 1991 and explicitly identifies the competing “focal concerns” of judicial decision makers. The paper also contains a useful description of a widely used dataset from Pennsylvania.

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Parole and Probation

The use of discretion by parole and probation officers is perhaps the least well understood part of the criminal justice system. Petersilia’s reviews (Petersilia 1997 and Petersilia 1999) of parole and probation provide broad-brush overviews of how these parts of the criminal justice system work, as well as detailed reviews of the limited research into how discretion is used in parole and probation departments. Travis 2005 provides an intelligent policy discussion of how the efforts to curtail the power of parole agents may have had unforeseen negative consequences. Andrews, et al. 2006 provides an articulate defense of the growing (and controversial) use of formal risk-assessment statistical tools to manage the discretion of probation and parole departments. Grattet, et al. 2008 presents relatively rare empirical evidence on the factors that appear to be correlated with parole violations and revocations. The report also does a good job of highlighting the challenges of studying this part of the criminal justice system.

  • Andrews, D. A., James Bonta, and J. Stephen Wormith. 2006. The recent past and near future of risk and/or need assessment. Crime and Delinquency 52.1: 7–27.

    DOI: 10.1177/0011128705281756Save Citation »Export Citation »E-mail Citation »

    The authors are leaders in the movement to use formal risk- and need-assessment tools in parole and probation. These tools manage the discretion of the parole and probation agencies in the assignment to treatment and supervision. Depending on their use, these formal tools can either replace or augment individual clinical discretion. The article presents an articulate defense of the tools.

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  • Grattet, Ryken, Joan Petersilia, and Jeffrey Lin. 2008. Parole violations and revocations in California. Final Report to National Institute of Justice.

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    Parole revocations are responsible for a sizeable proportion of the prison population in any given prison system. Yet they are the result of individual discretion that is largely outside the purview of the larger criminal justice system. This report presents an excellent analysis of factors that appear to be correlated with both parole violations and parole revocations. Document No. 224521.

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  • Petersilia, Joan. 1997. Probation in the United States. Crime and Justice 22:149–200.

    DOI: 10.1086/449262Save Citation »Export Citation »E-mail Citation »

    Probation officers are responsible for supervising two-thirds of all people sentenced in the United States, but receive relatively little study. Petersilia provides an accessible entry point for students and scholars interested in studying probation. Petersilia also does an excellent job of highlighting the tension between rehabilitation and punishment in the exercise of supervisory discretion.

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  • Petersilia, Joan. 1999. Parole and prisoner reentry in the United States. Crime and Justice 24:479–531.

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    Petersilia provides an excellent review of the literature in this area, while arguing for a new parole model that can incorporate technology, risk prediction, and effective rehabilitation. The paper also serves as a useful frame of reference for the reentry discussion, which became a much larger public policy issue after this paper was written.

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  • Travis, Jeremy. 2005. But they all come back: Facing the challenges of prisoner reentry. Washington, DC: Urban Institute.

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    Chapter 1’s discussion of indeterminate sentencing highlights what may have been lost in the movement away from indeterminate sentencing, in particular the removal of discretion from the back end of the incarceration process (parole). Moreover, the first part of the book is a useful discussion of the implications of macro-level decisions that allocate and constrain discretion to different parts of the sentencing process.

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LAST MODIFIED: 03/02/2011

DOI: 10.1093/OBO/9780195396607-0083

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