Sentencing Policy

by

Andres F. Rengifo

• LAST REVIEWED: 14 December 2009
• LAST MODIFIED: 14 December 2009
• DOI: 10.1093/obo/9780195396607-0036

Introduction

Sentencing policies govern the administration of legal sanctions for individuals convicted of a criminal offense. As such, these policies shape a vast array of institutional processes ranging from the likelihood, nature, and duration of imprisonment, to release decisions and the conditions of post-incarceration supervision. Starting in the mid 1970s the US approach to sentencing moved away from a relatively uniform set of indeterminate state systems focused on individualized, case-specific decisions to a more fragmented set of determinate systems emphasizing structured decision making and reduced discretion for legal actors. This change also implies a greater emphasis on retributive ideologies in contrast to more traditional rehabilitation-centered approaches. This framework has been progressively developed through a number of state and federal sentencing policies—including, for example, repeat-offender statuses, sentencing enhancements and mandatory minimums, truth-in-sentencing statuses, and drug laws. In most cases these initiatives have been implemented through legislative action, although in recent years other government entities (such as sentencing commissions) have had more influence in the development of these policies. A rich tradition of socio-legal studies has explored the linkages between sentencing and the role, justification, and functions of legal punishments in society. Research has also highlighted a number of social covariates of sentencing policies—such as more conservative political ideologies and more intense partisan politics, as well as greater levels of economic resources—that have been linked to more punitive approaches and higher incarceration rates. Studies have also explored case- and jurisdiction-level disparities in sentencing outcomes and processes related to attributes of defendants (notably race and gender). An emerging body of works has begun to document the specific impact of sentencing policies on offenders and on the criminal justice system as a whole. These works are particularly relevant to understanding the context and impact of mass incarceration for prisoners, communities, and government agencies.

General Overviews

A number of studies on sentencing policies explore the philosophical foundations of legal punishments. Others describe sentencing practices across jurisdictions, including reform initiatives and issues of coordination and effectiveness of the criminal justice system. Blumstein, et al. 1983, a report to the National Academy of Sciences, provides one of the most comprehensive views on the social and legal context of criminal sentencing in the United States. This survey focuses on the empirical assessment of sentencing practices over time and across states. Tonry 1998 and Reitz 2000 update some of these insights while highlighting recent policy developments. Von Hirsch 2000, a summary of penal theories, complements this line of work by further examining the different justifications for legal punishment with a particular emphasis on retributive approaches and the evolving nature of the notion of proportionality in sentencing. Tonry 2006 offers a more general view of the functions and purposes of sentencing, arguing that researchers should consider these two domains as separate constructs: the former links sentencing to crime prevention, the latter associates sentencing with issues of justice and fairness. Garland 1991 shifts the analysis of punishment and sentencing from a legal and philosophical perspective to a framework that highlights the significance of social forces to understand the evolution of penal policy. In particular, he examines the contributions of social theorists such as Durkheim and Foucault, and advocates for a broader interpretative focus.

• Blumstein, Alfred, Jacqueline Cohen, Susan E. Martin, and Michael H. Tonry, eds. 1983. Research on sentencing: The search for reform. 2 vols. Washington, DC: National Academy Press.

  Two volumes covering the evolution of sentencing practices and empirical research on determinants and impacts of penal practices of the early 1980s. Volume 1 examines institutional processes linked to sentencing (such as decision making and covariates); Volume 2 focuses on substantive domains (such as racial disparities and extralegal factors).

• Garland, David. 1991. Sociological perspectives on punishment. In Crime and justice: An annual review of research, Vol. 14. Edited by Michael Tonry, 115–165. Chicago: Univ. of Chicago Press.

  Advocates an alternative perspective to the study of punishment focused on a more systematic assessment of historical and social forces linked to the structure of society and mechanisms of control and domination. Argues that such sociological perspective provides the means for a more effective assessment of contemporary penal practices.

• Hirsch, Andrew von. 2000. Penal theories. In The handbook of crime and punishment. Edited by Michael Tonry, 659–682. New York: Oxford Univ. Press.

  Reviews penal theories on justifications for punishment and the volume of legal sanctions. Focuses on the issue of proportionality from a retributive approach. Argues that current sentencing practices follow a new form of “bounded consequentialism” that seeks to correct disparities linked to traditional models of sentencing as a crime-prevention tool.

• Reitz, Kevin R. 2000. Sentencing. In The handbook of crime and punishment. Edited by Michael Tonry, 542–562. New York: Oxford Univ. Press.

  Summarizes broad changes in sentencing policies since the mid 1970s. Argues that some of the systemic challenges that triggered the shift from indeterminate to determinate sentencing may continue to play a role in policy reforms. Links contemporary sentencing practices to the sustained increase in the use of imprisonment.

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

  Comprehensive account of sentencing practices and research regarding determinants, covariates, and impacts of criminal sanctions at the state and federal levels. Focuses on reform initiatives through the mid 1990s. Provides an insightful comparative perspective on sentencing systems across a sample of Western countries.

• Tonry, Michael. 2006. Purposes and functions of sentencing. In Crime and justice: A review of research, Vol. 34. Edited by Michael Tonry, 1–53. Chicago: Univ. of Chicago Press.

  Argues that contemporary state sentencing practices follow a number of different models of sanctioning. Indicates that some policies have worsened problems of fairness and consistency in the administration of justice—although some of these issues may be alleviated by recent Supreme Court decisions regarding the scope of sentencing guidelines.