and that's not message we want from a president. we want a president to be a strong leader who represents us. but that doesn't come across very. so i think what we what comes across is these seven characteristics really a good job of defining what you to do. and then if you could add in maybe a quarter a cup of that would really a big help as well. and being right is also powerful thing. so it's a great question. thank you all. funding for this program provided by the national institute, justice.

on a 19 year time. hello, i'm janesville some 20 year old man walks into convenience store, pulls out a gun and holds up the clerk. he takes the money and leaves. no one is hurt. he is caught, prosecuted and convicted. the judge that the young man has previously been convicted of a burglary and a robbery. if you were that judge, what sentence would you impose?

in massachusetts, the law allows to give that robber any sentence you like from probation up to imprisonment for life. but if you're a judge in minnesota, the law requires you to impose a sentence determined by this chart. the minnesota sentencing guidelines grid down the rows of the grid or the different of crimes committed the man convicted of holding up a convenience store, guilty of a level seven crime, aggravated robbery. across the columns of the grid are the offender's prior criminal. this robber had a record equal to three. the box where the row column intersect determines the sentence. 49 months in prison. the judge given some leeway. he can impose a sentences short is 45 months or one as long as 53 months. massachusetts is, a state with an indeterminate sentencing law. minnesota is one with a determinate sentencing, one time almost all states used in determinate sentencing. the idea behind was to allow the judge to match the sentence to the individual traits of the offender in hopes that these

tailor made sentences would rehabilitate the criminal in states as massachusetts. the actual time a person served in was determined not by the judge but by a parole board. but growing disillusionment about society's ability to rehabilitate offenders coupled with worries the injustice of giving similar offenders, very different sentences led many states to adopt some kind of determinate sentencing law mandating definite prison sentences and eliminating the authority of a parole board to decide how long a person in prison. by 1983, nine states had abolished the power of a parole board to let out offenders early and adopted some kind of determinate sentencing law. in 1984. congress passed law that would require that federal judges follow precise sentencing guidelines and will phase out the early release of the parole board. some people feel that forcing judges to use the minnesota sentencing grid is wrong. it's like turning over sentencing to an impersonal computer that neglects important but subtle differences among crimes and criminals.

others that having these guidelines makes sentences fair and more certain. joining me in our studio are kay knapp, executive director of the minnesota sentencing commission. judge robert halsey, a justice of the superior court of massachusetts. and brian faust, director of research insight law, an organization that has done a major study of sentencing disparities. mr. faust, you have studied how judges, in fact, make up their sentences. how much disparity there among judges in determining long a person goes to prison? well, jim, actually, there's a substantial amount in the research that we've done in research been reported in scores, if not of studies that have been published both before after our work. the evidence has been quite unmistakable of the existence sentencing disparity, and it has resulted both from studies that have looked at actual sentencing decisions and studies that given

case history information the same for the same case to a group of judges, asking them what sentence they should give. in both kinds of studies both in our work and in work. that's been done before and after our work. the finding been substantial disparity. me give you two examples. in washington d.c. in 1974, there were 28 judges who gave sentences in, each of whom gave sentences and at least 20 felony cases, 13 of the judges in castle rated 69% of all of the convicted offenders, whereas 15 of the other 15 judges in castle rated only 46% of the convicted offenders. despite the fact that the cases randomly assigned to the judges clear evidence of despair city in washington, d.c. there at that time when no guidelines and are not now at the federal

level. we rather than looking at actual sentences looked at the experimental approach we gave 16 case scenarios to over 200 federal judges and asked them what sentences they should give in. nine of the 16 cases we can find one judge who recommended probation and another judge who recommended at least 20 years of a sentence. let me ask you this disparity. i think to most of us means that the sentence be explained by the nature of crime or the past record of the criminal or other obvious, legally relevant about the crime. else is involved here. let me put the matter even more bluntly. is it the race or or class of the defendant that affects the way the judges sentences? or is it something else? well, there a number of factors that matter probably most important factor is the judge's personal view about what the

purpose sentencing is and how he happens to feel about the particular at issue judges who support rehabilitative goal of sentencing tend to give more lenient sentences about 10 to 20% on average than judges support the goals of deterrence and protection of the community as primary purposes of the sentence. is there much research indicates how the defendants feel this? we say that or some people say that this system be unfair. but is it perceived to unfair to the defendants? simply take what they get and not complain? well, the defendants apparently, based on the evidence that i've seen, do indeed see unfairness. in fact, it has been alleged that the attica riots in the early 1970s were a directory result of a perception among the inmates of sentencing disparity isn't then the executive director of commission that has

developed this remarkable grid. we saw on the graphic a moment ago. how did you and your commission about deciding how months this person who was convicted of aggravated robbery should get. why 49 months rather than 67 or 32? like any policy development process? there were many things that were looked at to come up with the final grid. the commission had to determine not only the length of imprisonment for those that went to prison, but the commission also had to determine how many people and kinds of people should go to prison in the first place, rather than be on probation with perhaps local jail time. and so there were a lot of decisions that had to be made. we as every state, has limited correctional resources in which to offenders that we want to incarcerate. and that became certainly constraint on what the commission could in terms of developing sentences. and therefore, it became just a question of choices of whether to send more people to prison

for shorter periods of time or to send fewer people to prison for longer periods of time. the 49 months was the outcome of that detailed choice process, and it was merely a policy decision. now, what has been the effect of having guidelines? do the judges actually conform to them? by and large. if i committed that convenience store holdup could i expect to get 49 months given my criminal record. oh, yes, you could expect to get it. one thing you did not mention in describing the grid is judges can depart beyond the range that is provided if there are substantial, compelling circumstances involved in the case that would justify longer or shorter sentences. and then that sentence can be appealed to the supreme and can be appealed by either prosecution or the defense, either that's correct. but by and large, the do follow the presumptive because there are not that many cases with substantial, compelling circumstances in terms of

whether or not a person goes prison according to the guidelines. the judges follow that. the presumptive sentence in 91 to 94% of the cases and the duration of decision for those who do go prison. the judges follow the sentencing guidelines. about 80% of the time. and if they don't, what happens? they the judge will provide reasons for going outside of the guidelines. and if the case is not appealed, the sentence will stand. if case is appealed, the appellate courts will decide it was an appropriate departure or not. other many appeals there have been about 200 opinions. so and we've had about 24,000 cases. so a small proportion of cases are appealed. but the case law is important in developing what the appropriate sentence is. was any thought in developing these guidelines beyond reducing disparities, they might have some advantage in making criminal sentences, certain or more swifter.

or was the crime control implications of this guideline really a subordinate matter? the issue of disparity. one of the goals was make sentences more certain and have truth in sentencing so that the public understand what the appropriate were for for each kind of offense. and that certainly was a goal of the guidelines. crime control as a goal was incorporated specifically into the guidelines. i think the commission felt that the particular sentencing you develop implement is not going to affect crime rates significantly one way or another. and therefore what they attempted to do was come up with a more manageable and, more accountable, fair and certain. what has happened to prison population as a consequence of the sentencing guidelines? prison populations initially went down, which is what we intended, because our prison populations were getting to be

at capacity and we felt that they should be not quite that high. so they did decrease for a short of time and then they started to increase as they were increasing in the rest of the country for about a year or two. there were legislative and commission intervention funds that stopped that increase and reducing the length of the sentences. there were some capacity cuts. there were some reductions in some of the durations? not too many, but were also some other legislative changes. basically reductions in mandatory minimums. sentences that control the prison. judge alessi, you from a state which throughout much of its history has had an indeterminate law. you heard the facts of this case, very abbreviated form. and obviously you'd like know a lot more of the feature made before you made up your mind. but from what you have heard, what kind of sentence, would you have given this convenience robbery? well, when i first thought about it, i would think, about probably 8 to 10 years at walpole maximum security prison. he would serve the 8 to 10 years, not how long what he

served generally speaking, he'd be out in two thirds, which would be five and something five years or so. so sentence would mean about 60 months or so inside prison, and your sentence would about 49 months or so inside. actually, it would be less than that because. our offenders can earn good time at a rate of about a third of the sentence. so the likelihood that the term in prison would be shorter than 40. so your sentence might in fact be only half as long in. minnesota, in terms of time served than the sentence in massachusetts. do you feel about constraining authority by the use of sentencing guidelines or presumptive sentencing laws? would you be in favor of and we'd be opposed to it. what i say about sentencing is i can use all the help i can get from any source whatsoever because. it is one of the most difficult things that judge has to do. probably the most difficult thing. what about the minnesota sentencing guidelines? would you like to see that grid put down your desk and you say you hear you sentence 49 months? i would not be happy with that.

i don't claim to understand it fully. i've only studied cursorily, but i see that it starts out first of all, saying the only thing we're going to be concerned with is retribution or punishment. you know, to me, that's only a very small part of the story. in my view, the crime is. one thing that the criminal is. the other and that a judge should evaluate them in all of their complexities. so when you evaluate the criminal, what do you into account? what are you looking for? i'm looking for anything that a light on what he did, why he did it, and most particularly what sort of a fellow he's going to be in future if he's in jail or not in jail. motivation. you take your hypothetical. we don't know what color this fellow was. if he spent his whole life in the ghetto high crime area and it's today all he has is these two prior criminal records that isn't all that bad. on the other hand, if he's in an affluent suburb, he's a very bad felon, so you'd be inclined sentence the more affluent offender more severely owing to

the differences in. fact i would think that it's more likely that he's a bad apple. i that would count against him if he came from an affluent society. we don't know what his motivation was. if he's got five kids, a wife that needs money to get an operation for cancer that i think would in his favor if he's a drug addict actually. i can't that is in his favor. he's compelled by a drive that he can't control. on the other hand, if he needs money to chase around at horse tracks and gamble, i think that would count against him. so i'd like to know lots more about this felon. but what do you hope to accomplish by knowing more? do you hope to design a sentence that will rehabilitate the offender, or do you simply to design a sentence that is more in the sense that it takes into account more circumstances potentially? i think what i try to do is evaluate the evilness, if i can use that general word of what he did to start with and then have to make a course of basically

whether he's going to be locked up or not and now everybody pretty much gets out of jail. we don't we don't kill people anymore. we don't lock them up for life. we say life and they're not away for life. so i try figure out what's going to be best downstream. should we let the fellow outside can be salvaged now if we put him away? what kind of a creature is going come out? well, you. you your discretion that the law gives you in a sensitive. you try to understand more about the crime and the criminal and try to do what's best for all concerned. but doesn't a law that you to behave in that way permit judge perhaps in the very next courtroom your good intentions to impose his own personal prejudices to act hastily to be vindictive or to be excessively lenient. isn't the indeterminate law a law that can work in the hands of judges?

you can say that, too. but of course, half of those things you said would probably be a violation of the judge's oath and assume that they don't do that. jim. well, of course, some people worry that judges are not sufficiently constrain by their oath, they're human beings. i grade my students and of course, and sometimes i have a feeling that i give them some students, c or an aide, depending on what i had for breakfast that morning. other people have alleged that. judges give out criminal offenses depending on what they had for breakfast that morning. is that matter that worries you? of course does. it's a very complex problem. and i suspect that the same judge on different occasions come out differently. and that may not be unreasonable. we, as you know, are a circuit court and a particular crime may call for one punishment in boston, quite a different punishment out in pittsfield. but in northampton, hampton. to the extent that the is a factor and i think it is you have to see how rampant that crime is in that community at

that particular time. how much deterrence required stealing bicycle is not a very big deal anymore, but in some communities it's a very serious crime. brian heard these arguments. the judge policy has made before because i'm sure that judges, you've had said many of the same. what is your reaction? do feel that taking circumstances into account including very subtle and a hard measure circumstances is a reasonable way judges to act or do you think this opens the door to abuses and unfair? well, i think that it does do the latter. we all, when faced with complex decisions, tend to have difficulty making a consistent decision. there are ways of making decisions evenhanded the way that sentences are currently being made is not conducive to evenhanded sentences and i hasten to add that we are perhaps pinning too much of it

on the judges. and i think it's appropriate to think not so much of sentences as criminal sanctions and observes that the. that offenders get are a function not only of the quirks that judges may impose in their sentencing decisions but also those that a prosecutor brings in filing charges in a inducing please and under old parole board system, the whims that a parole board might have in determining when to release an. so the point you just made if i could interrupt for a moment brings to mind a question i wanted to ask miss knapp. okay. what about this problem, having guidelines that are based on on just two factors. is it the case? these two factors simply don't exhaust. all of the legally relevant and appropriate considerations, while you're about that one.

i'll tell you the next question. i'm going. if the judge's discretion is reduced, isn't it likely be the case that the prosecutors will have their discretion expanded in deciding what to charge these people with in the first place? and therefore, we're right back to indeterminate sanctions, to use your words because now it's the prosecutor using this sort. all right. two very good questions. the two dimensions don't exhaust for either legally or, socially relevant factors. and in determining sentence. in fact, as i indicated judges can depart from the presumptive sentence on the basis of some other factors for. example if the offender has reduced culpable party because of some sort of mental physical kinds of deficiencies, that's a reason to mitigate sentence. if there was particular cruel in the commission of offense to victim, that's a reason to aggravate sentence. so there are various factors that can be brought in in terms of the changing discretion. certainly the system, the

discretion in the system change with the sentencing guidelines. but it was not just reducing judges discretion and in fact, judges discretion increased because prior to the sentencing guidelines, the parole had a tremendous amount of discretion and it was the parole board that determined the actual sentence, just as in massachusetts, what our system did was take that power from the parole board and distribute it between, the judges and prosecutors, the do get more power because they the conviction offense and the charge and that in turn is tied to the sentence. there's no question that there discretion has increased, but so has the judges because now the judge gives the real time sentence prior the guidelines of the parole board. i'd like to see you and judge halsey sort of go eye to eye on the following question. he says among the factors he would like to take into account in reaching a decision is where the lives, whether he grew up in a whether he's been involved in drugs and all of the other

factors already mentioned. now, even under an definition of the minnesota sentencing, it's hard for me to imagine the judges be authorized to take those factors into account. what would you say in response to his concern? do you think that's wrong? well, in minnesota, we determined that would not be appropriate, especially the issue of drugs. we found that some judges would use the use of drugs as, a mitigating factor. others would use it to aggravate a sentence that was not used in all consistently among offenders and, decided that it should not be used, especially to mitigate a sentence. and in terms of where a person grew up. we also found that while some judges wanted to make sentences harsher. the more affluent offenders, by and large, the on sentences suggest that the opposite were true, that it was the poor or defendant that by and got the harsher sentence. so those sorts of factors were excluded from. what do you feel about this? would you like to move to

minnesota. because ms. knapp has persuaded you of the wisdom of it just because judges do the same thing all the time? doesn't it seem to me to permit people to put despair charity labor on it, which me as a judge, mental word to me is a difference of opinion that may be in perfect good faith by people of different persuasions. and you go to two different doctors. one says you should have surgery. the other says shouldn't. you should treat this conservatively? they're both within the of competent doctors have a different opinion and i more study should be done to see which of the views is more right than wrong that just brushing aside altogether a legitimate factor because judges differently some people have made to me the following that the right analogy is not between and doctors and how you treat an ill person. judges and tax collectors and what we want a law that said your income taxes will determined by the irs on the

basis the commissioner's determination of your character your place of residence, your your nature, your dispositions. so we a tax schedule that says if you are an x dollars, you pay taxes, which is the appropriate. i have the particle analogy, the tax i have trouble coping with that analogy because i think the whole tax structure has always been government's of encouraging or discouraging certain activities and maybe it comes to the same thing, i don't know, but i've never thought of it that analogy either. so i pass. brian one of the things that struck me about this conversation so far is how little attention been given. and i think perhaps rightly to a subject that most people think is at the heart of this. when you say judicial or sentencing disparity, the many people, they immediately assume that disparity equals racial prejudice. but that is what is going on in our courts. what is your sense of scholarly evidence on the degree to which the race of the defendant is a

significant influence on the sentence defendants get? for the most of the research that i've seen, which takes account of not only race but a whole host of other factors finds that it's quite rare for race to play an important role in the sentencing decision. that is, if if one just looks at race when i find that black people are more often incarcerated than white people. but after controlling for the severity of the crime and a whole host of other factors that enter into the sentencing decision, most studies find, with a few important exceptions, that race does not play any significant role in sentences that are given out in contemporary. but what has happened with respect to in minnesota, have there been in how the frequency which blacks have been incarcerated or how long have been incarcerated before and after the sentencing grid? yes, sure. and after there's been very little change in that in that in that aspect of sentencing and

something that the commission certainly is looking at in, the legislature is made aware of. we've not found any improvement in that area. overall, there has been improvement. and if you just look at general classes of offenders that they get generally more uniform sentences now than before the guidelines. but we've not found racial improvement we were hoping for. well, when you racial improvement, that suggests you believe there is a racial problem. do you disagree with brian suggesting that the evidence doesn't support the argument that race a big factor in race by itself was not a big factor itself. but when you tie that with, the economic variables, especially employment, things, which is racially or racially correlated, then it becomes so it's not directly related. but the economic status of the offender was was very important that employment is an interesting. yes variable in sentencing. should judges it into account or not? i think most of us would say, well, they certainly shouldn't take into account race. probably not sex, but employment in one sense it means the person is a member of the community or

not. if he's employed. in another sense, it doesn't really have anything to do with the commission of the crime. do you think employment is a legally relevant, very morally relevant variable in? i think it is. jim. i think it shows in some. a willingness to come by money in a honest way. so one's limits, which you'd be inclined to give p hava spotty employment record despite the absence of employment opportunities somewhat less consideration. and somebody was. i wonder. i hope i didn't say if they're unemployed, there's no employment around. don't think it should count against them tying it in with race question. i know in my own case i have not incarcerated at some black felons who otherwise have been incarcerated because of the that they had a job. and i knew perfectly well that if i locked them up for as short a time as three months, they'd lose the job. and it may be years before they got another one. thank you very much for joining

me. thank you, ladies and gentlemen, for crying foul. i'm james wilson.

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