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November 12, 2019

Other than criminal history, is there any "offender characteristic" that you think must be considered at sentencing?

Aside from race, is there any "offender characteristic" that you think must not be considered at sentencing

As we continue digging into the  challenging and dynamic sentencing topics of offender characteristics at sentencing, two fundamental questions arise: (1) what specific offender characteristics should or must never be considered at sentencing, and (2) what specific offender characteristics should or must always be considered at sentencing.  As is our norm, we will unpack these issues aided generally by current federal sentencing realities (and specifically through a discussion of Problem 5-4 in our text).

Generally, there are thought to be a couple of easy answer to these questions: for (1), we are often quick to say that race should or must never be considered at sentencing; for (2), we are often quick to say that criminal history should or must always be considered at sentencing.   Though we could question the soundness of these pat answers, I think it will be more beneficial to explore what other offender characteristics we might think should be on either the never or the always list.

Focusing on the always list, one might interpret the Supreme Court's recent Eighth Amendment rulings in Graham and Miller as a statement that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  Notably, in 2013 the Ohio General Assembly amended Ohio Revised Code § 2929.12 to add Section (F) providing that the "sentencing court shall consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses."

Would you embrace and endorse a sentencing system that demands that all sentencing judges in all cases give consideration to an offender's age and history of any kind of community service (and not just military service)?  If you think these or other specific offender characteristics must be considered at sentencing, are you inclined to give judges broad discretion as to how they consider these matters or would you think it better to have guidelines that articulate with specificity just how these specific offender characteristics should be incorporated into non-capital sentencing?  For example, should honorably military service for a number of years earn a presumptive 10% or 25% sentence reduction?  Should being under 25 and thus still having a developing brain lead to, say, a 10% or 25% sentence reduction? 

November 12, 2019 in Guideline sentencing systems | Permalink


Generally speaking, I would support a sentencing system that considers any and all factors that bear on future recidivism. Offender’s age and history of community service are certainly two factors that should be considered because of their influence on recidivism rates, but I think if factors like these were to be considered there ought to be rather little discretion left to judges in how the factors will impact the actual sentence. While age is a relatively straightforward measure to determine sentence reductions, community service is harder to quantify. Just looking at the number of hours volunteered may be overly simplistic and fail to account for the actual substantive work performed. Without a relatively strict framework for considering factors like community service, there would likely develop a sort of hierarchy among community service opportunities where something like cleaning up your local park is now being directly compared to delivering meals on wheels.

The significance of factors like community service are then bound to be disparately considered by judges if left with broad discretion. Where one judge who happened to be a past eagle scout decides that a defendant’s time as a boy scout warrants a reduced sentence, other judges without that predisposition may not see boy scout participation as meaningful community service. To avoid creating further disparities, these sorts of mitigating factors have to be applied in a very formulaic and consistent manner.

Posted by: Justin McCuen | Nov 12, 2019 9:16:39 PM

I think your proposal is the opposite of what should be used in sentencing. The presumption should be that the sentence is what the statutes say it is (with the assumption that the statutes are optimized to some theory of punishment). There should be a heavy burden to show that any given factor mitigates (or aggravates) the offense from what the individual was actually convicted for. This reduces the problems of disparity and sentencing based on acquitted conduct. Nothing must be considered and nothing must never be considered, but either party must show beyond a reasonable doubt that any factor makes the individual deserving of a lesser or greater sentence. As long as the sentences dictated by the statutes are reasonable when judged by some theory of punishment, there is little need to tailor the punishments on a grand scale, only in compelling circumstances.

Posted by: Adam C Kennett | Nov 13, 2019 10:07:00 AM

I have mixed feelings about the use of criminal history in sentencing.

On one hand, sentencing based on criminal history aligns with several important theories of punishment. From a utilitarian or incapacitation perspective, it makes good sense to impose harsher punishments on those who repeatedly disregard the law, since those who repeatedly disregard the law may be more likely to commit violations in the future. From a rehabilitation perspective, it is hard to argue for lenient punishment for those who have demonstrably failed prior attempts at rehabilitation.

But I also have a strong countervailing feeling that using criminal history violates good sentencing practices by encouraging judges to sanction people rather than sanction crimes. The necessary function of the criminal justice system is to punish the violation of our laws—each violation warrants the punishment prescribed by society in the relevant criminal code. That violation and resulting punishment should stand alone, not be colored by prior (and already punished) conduct not before the court.

By using criminal history, judges are forced to sentence based on their assessment of the nature of a person and their capacity for rehabilitation, a finding judges are ill-equipped to make. Such sentencing practices allow room for unchecked negative variables like discrimination, charging decisions of past prosecutors, and performance of past counsel to unduly influence the current sentence.

Ultimately, I come down against criminal history sentencing. A single punishment for a single crime would create an all-around more evenhanded criminal sentencing regime.

Posted by: Matt Krsacok | Nov 13, 2019 10:46:14 AM

Instead of completely disregarding criminal history at sentencing like Matt suggests, I would advocate for a slimmed down consideration of criminal history at sentencing.

I imagine that in a world where criminal history is not considered, the Guidelines would also recommend shorter sentences. Under the assumption that individuals would receive shorter sentences for all offenses, it seems important to me that judges could add a criminal history point to the Guidelines' calculation for crimes of violence. Crimes of violence would be limited to murder, rape, sexual assault, and aggravated assault.

Under this proposal, judges could add one criminal history point to the sentencing calculation if the individual has a prior crime of violence conviction. No matter how many prior crimes of violence convictions the individual has, the most that an individual could received under this proposal would be one additional point. Criminal history points would not be added for prior sentences or convictions that occurred prior to the individual's eighteen birthday. Judges should rarely invoke the criminal history point but they would have the option of doing so if the situation necessitates.

In my mind, individuals who commit crimes of violence are most culpable. Under multiple theories of punishment, if after serving a sentence for a crime of violence the individual continues to commit offenses, judges should have the discretion to add one criminal history point and impose a longer sentence.

Posted by: Kate Toth | Nov 15, 2019 9:34:21 AM

I believe it is critical to consider offender characteristics when sentencing. There are litany of studies that show that implicit biases regarding certain characteristics (race, age, gender, socioeconomic status) impact sentencing, so it would only make sense to explicitly consider these and stop pretending that they don't play a role in sentencing when we "ignore" them anyway. Examples of these studies show that African-American individuals are disproportionately and negatively impacted in sentencing, that men receive longer sentences than women for the same crimes, and that individuals of lower socioeconomic status are more likely to receive harsher sentences. If we don't explicitly draw attention to these factors (maybe not as requisite deductions but as considerations of whether a sentence should be reduced to combat these biases), this system cannot be curbed.

Moreover, certain characteristics, especially when linked with certain crimes, make individuals necessarily less culpable, and, therefore, less deserving of a more severe sentence. For example, an individual who grows up in a high crime area with pressure to participate in criminal activity must actively work against his circumstances in a way that individuals not raised in these environments do not, making him less culpable when he succumbs to constant pressures than individuals raised in lower crime rate areas. Individuals associated with burglary, theft, or other financial crimes are less culpable when they are of a lower socioeconomic status because financial crimes are a means of survival where they are not for individuals in wealthier circumstances.

Thus, we should consider these characteristics in imposing sentences as mitigating factors to measure culpability and examine minority statuses listed above to combat potential inherent biases.

Posted by: Micaela Taylor | Nov 19, 2019 4:46:15 PM

There have been a lot of wonderful discussions already about what offender characteristics should be considered at sentencing. I specifically want to focus on ORC 2929.12(F): "sentencing court shall consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses." I agree with the intent behind this section; however, I think it is too narrow. Amending the statute to include this section does incline that the legislature understands the trauma that military service can impose on our service members. But what of the traumas of domestic abuse or similar situations? And mental conditions that are as a result of an intellectual disability? The rest of the statute is silent on the matter. While it is important to consider an offender's propensity for violence, I believe it is paramount to consider the mental conditions of all offenders as a result of trauma or intellectual disability. Not only does this effectively consider culpability (if you subscribe to theories of punishment that consider this), but by requiring courts to consider these factors, we are also able to ensure that sentencing is tailored in such a way to provide treatment and mitigate future risks (whether on release or while in the prison population).

Posted by: TJ Beavers | Nov 20, 2019 1:24:25 PM

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