Sentencing Enhancements

by

Traci Schlesinger

• LAST MODIFIED: 27 February 2019
• DOI: 10.1093/obo/9780195396607-0262

Introduction

Sentencing enhancements are policies that mandate that people who are convicted of criminalized behaviors while engaging in generally non-criminalized behaviors—such as being in a school zone—or having generally non-criminalized traits—such as having a prior conviction—receive longer and surer sentences than those who are convicted of the same criminalized behaviors without engaging in these generally non-criminal behaviors or having these traits. Some sentencing enhancements apply to all underlying crimes; this is true of the bias enhancement of Washington, DC. Other sentencing enhancements apply to all crimes of a certain category. Alabama’s firearm enhancement applies to all people convicted of drug crimes who are eligible for gun enhancements. For example, if someone is arrested while carrying ten grams of cocaine and a registered gun they will be charged with cocaine possession and given a firearm enhancement, even if they have a conceal and carry permit and thus their carrying of the firearm would have been legal absent their possession of the cocaine. A final set of sentencing enhancements apply only to a single underlying crime; one federal recidivist enhancement that applies only to the underlying crime of illegal re-entry is an example. Furthermore, some sentencing enhancements are embedded in sentencing guidelines while others are statutory. In 2005, the US Supreme Court’s Booker decision rendered guideline enhancements advisory. Nonetheless, the best available research suggests that judges still apply guideline enhancements to the abundance of defendants, saving their now available leniency for defendants without prior convictions or other defendants who they view as least culpable. Moreover, while many practitioners and policymakers have argued that the Booker decision helps to limit punitiveness and disparity in processing, others argue that this decision increases prosecutors’ power by making important factual disputes elements of the crime and depriving defendants sentencing hearings—the only hearings most were likely to have in this era of guilty pleas. Furthermore, while judges are still bound by statutory enhancements, the 2005 Shepard decision increases the kinds of evidence that judges may consider, restoring some judicial discretion even in this context. A preponderance of research suggests that sentencing enhancements play an important role in the production of the prison boom, increase racial disparities, and are disproportionately punitive toward women, leading these policies to be widely critiqued by scholars and prisoner rights groups. Moreover, while some studies suggest that sentencing enhancements have a marginal deterrent effect, other scholars note that even if this impact exists it is likely offset by the ways in which sentencing enhancements and other punitive policies increase crime by helping to produce concentrated racialized incarceration and thus destabilizing families and communities. As all of this suggests, sentencing enhancements raise a number of legal and ethical concerns; some of these concerns derive from their uneven implementation while others are implicit in their design. Changing case law has highlighted but not resolved these concerns.

General Overviews

There are few overviews of sentencing enhancements per se, but many overviews of the punitive turn are indispensable for developing an understanding of these policies. These should be supplemented with articles in law journals that overview how changing case law—particularly in the years since the 2000 decision in Apprendi v New Jersey—have altered the implementation of these policies. Tonry, et al. 1997 surveys sentencing policies both comparatively across US states and comparatively across overdeveloped nation-states in order to help policymakers find the most humane, least punitive, and least disparate solution to state responses to harms. Zimring, et al. 2001 examines the origins of California’s three-strikes enhancement and compare it to other recidivist enhancements and punitive policies more broadly. Beyond providing another overview of the punitive turn, Berman 2004 describes case law history relevant to sentencing enhancement from the 1970s to today.

• Berman, Douglas. 2004. Beyond Blakely and Booker: Pondering modern sentencing process. Journal of Criminal Law & Criminology 95.3: 653–688.

  Berman details a history in which determinate sentencing replaces indeterminate sentencing, but procedural rights at sentencing remain elusive. This creates an internal contradiction wherein sentencing enhancements are applied based solely on a preponderance of evidence. A number of decisions, beginning with the Almandarez-Tores in 1998 and culminating with Booker in 2005, resolve this contradiction. Together, these decisions state that courts must prove all behavior used to justify enhancements beyond a reasonable doubt.

• Tonry, Michael, Kate Hamilton, and Kathleen Hatlestad, eds. 1997. Sentencing reform in overcrowded times: A comparative perspective. New York: Oxford Univ. Press.

  This book surveys sentencing policies comparatively across US states and overdeveloped nations, examining the relationship between sentencing policies and both the scale of and disparities in incarceration. They are clear that the book aims to help policymakers find the most humane, least punitive, and least disparate solution to state responses to harms.

• Zimring, Franklin, Gordon Hawkins, and Sam Kamin. 2001. Punishment and democracy: Three strikes and you’re out in California. New York: Oxford Univ. Press.

  Zimring, Kamin, and Hawkins examine the origins of California’s three-strikes law and compare it to other recidivist enhancements and punitive policies more broadly. They present evidence that while getting tough on crime has been one of the favorite rallying cries of American politicians in the last two decades there also has been a trend toward populist initiatives driving penal policy—something that other scholars refute.