Corrections Sentencing - Criminal History Disparity and Sentencing Guidelines

Michael Connelly had this post on disparity in criminal records and how they play into the sentencing process. Something to be thoughtful about.

As we observe the various states trying to get handles on their current and even worse looming corrections sentencing problems, considering in particular sentencing commissions and guidelines, we don’t hear much about the original reason for development of guidelines and commissions—ending sentence disparity, making sure that like offenders got like offenses and unlike got unlike. It’s there a little, but the overwhelming concern right now is to match policy with increasingly finite resources. I don’t consider that decline of concern a horrible thing. That doesn’t mean I’m a fan of sentence disparity. I’m the opposite. It’s because I haven’t been convinced for a long time that we accomplish what we’re after in most cases by institutionalizing structures to inhibit disparity when we do guidelines.

Most guidelines systems rely heavily if not totally on criminal history as the “offender score” in their grid systems and to apply enhancers and mandatory minimums. I’ve worked for over a dozen years now with criminal history records, I’ve seen how they’re developed, and I think there is, even today, too much wrong with the collection and reporting to justify the faith that guidelines put in them.

A couple of quick reasons. One, the record collection and reporting, while better than a decade ago, are still too ambiguous. I talk regularly to people who still laugh and shake their heads at the idea that a rap sheet can be interpreted as a science rather than an art or that they believe it’s completely accurate when read correctly. You need good disposition reporting and maintenance to make them real, and people trained to get it done right and also to even care. Once the guy goes away, why worry about updating anything? Two, some DAs charge everything and stay with it, some charge everything and bargain away some, some charge just one or two things to keep everything straight and simple. So three identical guys doing the same criminal things could conceivably end up with three different prior records. And, the next time they come through for, again, the same thing and those prior records are applied to a grid or a mandatory, they will get different sentences even though they have never in their lives been or done anything but exactly the same. And this doesn’t even get into differential charge bargaining.
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