Sentencing Decisions

The sentencing decision is typically the last court decision made in a case. This decision has attracted the most attention from researchers studying legal decision making. After being convicted of a crime, a defendant may be sentenced to, for example, imprisonment, a community penalty, fine, restitution or compensation, or probation. A sentence may have one or more goals, including to deter, rehabilitate, and incapacitate the offender. Crimes may have maximum and minimum penalties attached to them. However, in between these penalties, sentencers have discretion as to the sentence they pass. Efforts have been made to curb this discretion through the introduction of sentencing guidelines. Past research on sentencing has largely been conducted in the American and English criminal justice systems. Researchers have aimed to describe and explain sentencing practice. They have found that guidelines do not necessarily reduce sentencing disparity. Sentencing decisions are associated with earlier decisions in a case. In addition, sentencers may be influenced by myriad individual-level factors such as offender, victim, and case characteristics as well as higher-level factors related to the sentencer, court, and area or jurisdiction.

Sentencing Theory and Policy

Once a defendant has been convicted of a crime, he or she will be sentenced. This sentencing decision is typically made by a judge or magistrate (depending on the sentencing court). Several sentencing options are available to sentencers; common ones include incarceration (prison or jail),community sentences, fine, restitution or compensation, and probation. Of these, incarceration is usually the most severe sentence, although some crimes carry the death penalty in some jurisdictions. Defendants convicted of more than one crime may be given consecutive or concurrent sentences. Sentencing statistics indicate trends in sentencing such that the relative use of different options changes over time, largely in response to changes in sentencing policy or public opinion.

A sentence may be justified on one or more of several theoretical grounds. In their simplest forms, desert or retributive theories propose that those who commit crimes deserve punishment and should receive sentences proportionate to the seriousness of the crime. Deterrence theories state that a sentencing should aim to deter specific people, or people in general, from committing crimes and that doing so requires that a sentence be certain and severe. Rehabilitative approaches also suggest that a sentence should aim to prevent further re-offending but hold that this should be done by means of treatment. The incapacitative approach advocates that a sentence should aim to protect the public by detaining persistent or dangerous offenders. Finally, restorative and reparative theories state that sentences should aim to repair the harm done by crime and encourage social integration.

Research on public opinions of sentencing has found that support for the purposes of punishment varies by the nature and seriousness of the offense. Nevertheless, studies have consistently reported that people perceive sentencing policies and practices as being too lenient. In fact, public opinion has been a driving force behind several sentencing policies such as the “three strikes” policy in the United States. However, evidence also suggests that the public may be ill informed or misinformed about current sentencing policy and practice as well as crime rates. Studies indicate that the public are less likely to favor imprisonment when they are made aware of the range of sentencing options available, and they support alternatives to imprisonment under certain circumstances.

Most offenses have fixed maximum penalties assigned to them, usually in the form of a length of incarceration or fine amount, and some offenses also have mandatory minimum sentences. In addition, the sentencing options may differ for offense type. Finally, sentencing options may differ for adults and youths (juveniles and young offenders). Despite this, the sentencer is afforded considerable discretion in the sentence passed. When making a sentencing decision, sentencers are expected to use legal factors such as the nature and seriousness of the offense and the defendant’s criminal history. The sentencer is also obliged to take into account any aggravating factors, such as the vulnerability of the victim, whether the victim was racially/religiously targeted, the offender’s leading role in the offense, his or her profit from the offense, as well as mitigating factors, such as whether the offender was provoked, the offender’s minor role in the offense, and his or her acceptance of responsibility or show of remorse. Finally, sentencers may also have access to sentencing recommendations provided by a probation officer in what is called a presentence report.

Sentencing guidelines have been introduced in some jurisdictions to focus sentencers’ attention on legal factors and to promote predictability, consistency, transparency, and accountability in sentencing. For example, in the United States, since the 1980s, there have been both state and federal guidelines that employ a grid structure. State guidelines vary in their use of the axes of criminal history and offense seriousness, as well as the sentence ranges proposed. Some guidelines are advisory/optional (voluntary), and others are legally mandated (presumptive); some are based on past sentencing practices, while others offer a new sentencing goal or philosophy. In the English system, optional sentencing guidelines are being produced for all criminal courts since 2004. Although these guidelines are much less structured than in the United States, they are informed by public consultation and data on the effectiveness of sentences in reducing re-offending, as well as the financial cost of different sentences. However, commentators are pessimistic about the extent to which objectivity in sentencing can be achieved by the English guidelines. Research evaluating guidelines in the American system suggests that while successful in reducing extralegal disparity in sentencing in some jurisdictions, the guidelines have sharply increased such disparity in other jurisdictions.

Research Describing and Explaining Sentencing Practice

Much of the past research has investigated sentencing decisions in the American and English criminal justice systems. Studies have been conducted by psychologists, sociologists, criminologists, and legal scholars using methodologies such as experiments involving sentencers being presented with simulated cases, interview and questionnaire surveys of sentencers, analyses of sentenced case records and sentencing statistics, and analyses of sentencing policies. Researchers have examined both sentencing decisions generally as well as the choice of specific sentencing options. They have documented the influence of legal and extralegal factors on sentencing, variations in sentencing practice across areas or jurisdictions, and disparities in the sentences passed on subgroups of defendants.

Sentencers are often required to give reasons for their sentencing decisions. The reasons given in court or in self-report studies typically do not concur with the findings of research that is based on an analysis of sentencing behavior.

Evidence from studies of sentencing behavior suggests that sentencing decisions are associated with earlier decisions made in a case such as the bail-setting decision and the defendant’s plea. In particular, defendants who were denied bail or remanded in custody are more likely to receive a custodial sentence than those who are given bail, after controlling for some legally relevant variables such as offense type. Furthermore, sentencing discounts may be given to those defendants who plead guilty. Some of the relations between the sentencing decision and earlier decisions are supported by policies such as the guilty plea discounts in the English system and plea agreements in the American federal system. However, the association between the bail-setting decision and the sentencing decision are not mandated by sentencing policy.

Studies have examined the extent to which sentencers may be influenced by myriad individual-level factors such as offender, victim, and case characteristics as well as higher-level factors related to the sentencer, court, and area or jurisdiction. With regard to individual-level factors, there is evidence that in addition to legally proscribed factors, sentencers may use extralegal factors such as the race or ethnicity and gender of the defendant. In particular, Black defendants have been reported to be treated more punitively than White defendants, and females have been shown to be treated more leniently than their male counterparts, even after controlling for the defendant’s offense and criminal history. However, there may be other legally relevant case variables that covary with these extralegal factors that also need to be controlled, and the impact of extralegal factors on sentencing may also be partly accounted for by the impact of these factors at earlier stages of the criminal justice process such as at the bail-setting stage.

With regard to higher-level factors, criminological research in America shows that the decision to incarcerate as well as the length of incarceration can be predicted by sentencer characteristics, such as age, and court and area factors, such as court size, availability of custodial spaces, and proportion of ethnic population. For instance, minority judges have been found to be more lenient than their White counterparts. Sentences have been found to be more severe in small courts than in large courts. The availability of custodial spaces has been found to increase the likelihood of incarceration. In some areas, it has been found that as the proportion of the population belonging to an ethnic minority increases, so does the length of incarceration. Criminological research in the English system similarly reports that, for offenses of similar levels of seriousness or for similar types of offenders, sentences appear to vary by area, court type, and sentencer. Here, sentences given in the Crown court tend to be more severe than those given by the magistrates’ (lower) court for similar offenses, and sentences by professional judges tend to be more severe than those given by lay judges (magistrates).

Although psychologists have generally not studied the impact of higher-level variables on sentencing decisions, they have demonstrated how the personal characteristics of the sentencer, such as his or her attitudes and experience, may influence the sentencing decision. Psychological research has also pointed to the types of heuristic decision-making strategies that sentencers may use.

More recently, criminologists such as Brian Johnson have begun to argue for the importance of studying sentencing decisions using multilevel theories. These allow the researcher to simultaneously examine the relative (direct) impact of individual- and higher-level factors on sentencing decisions and to measure the interactive effects of individual- and higher-level factors. Therefore, theories of sentencing can better consider how sentencers are influenced by the individual offender, case, or victim and how sentencing behavior is affected by the characteristics of the sentencer and his or her environment such as court or area.

References:

1. Albonetti, C. A. (1997). Sentencing under the federal sentencing guidelines: Effects of defendant characteristics, guilty pleas, and departures on sentence outcomes for drug offenses. Law and Society Review, 31, 789-822.
2. Daly, K., & Bordt, R. L. (1995). Sex effects and sentencing: An analysis of the statistical literature. Justice Quarterly, 12, 141-175.
3. Mitchell, O. (2005). A meta-analysis of race and sentencing research: Explaining the inconsistencies. Journal of Quantitative Criminology, 21, 439-166.
4. Roberts, J. V., & Hough, M. (2005). Understanding public attitudes to criminal justice. Berkshire, UK: Open University Press.
5. Johnson, B. (2006). The multilevel context of criminal sentencing: Integrating judge- and county-level influences. Criminology, 44, 259-298.
6. Von Hirsch, A., & Ashworth, A. (Eds.). (1998). Principled sentencing (2nd ed.). Oxford, UK: Hart.

Return to the overview of Sentencing and Incarceration in Forensic Psychology.