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Just Deserts, The Severity Of Punishment And Judicial

Sentencing Decisions

Article  in  Criminal Justice Policy Review · March 1990

DOI: 10.1177/088740349000400102

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CJPR, VOL. 4, NO. 1/90, pp 19
~&dquo;&dquo;&dquo;T&dquo;&dquo;

Just Deserts, The Severity Of Punishment And

Judicial Sentencing Decisions
John J. Sloan III
University of Alabama Birmingham
J. Langly Miller
Purdue University
Abstract
Just deserts, as a philosophy of punishment, argues that criminal sanctions
should be commensurate with the seriousness of the offense. This paper
analyzes the severity of punishment meted out to felony offenders in a large
urban jurisdiction in the Midwest and argues that two dimensions of criminal
sanction need to be examined to understand punishment severity: the type of
sanction received and the length of sentence. We also argue that the frequency
and visibility of crime are linked to punishment severity. Analyses indicate that
crime visibility is a good predictor both of judicial decisions to incarcerate and
of the length of term of probation. Crime frequency, on the other hand, has little
predictive power. We conclude that judges in the jurisdiction are guided by a
modified just deserts philosophy in their sentencing decisions.

Introduction
Discussion of what constitutes appropriate punishment for convicted of-
fenders has occupied the writings of various scholars for decades.
Justifications for punishment or the functions served by punishment (goals)
tend to be the center of the debate. In recent years, a number of propositions
centering around functional or moral justifications for criminal sanction have
been advanced in the literature (von Hirsch, 1983b). Some scholars favor
deterrence or incapacitation as the guiding penal philosophy (Wilson, 1975,
1983; van den Haag, 1975) while others argue that punishing offenders is
justified on moral grounds: punishment is deserved because of a legal trans-
gression (Ball, 1979; Gross, 1979; Kleinig, 1973;von Hirsch, 1983a, 1985;
Singer, 1986). A third group of analysts justifies punishment on legal or cultural
grounds (Durkheim, 1933; Morris, 1974; Erickson, 1975). At the moment,
however, no single policy is dominant, and judges tend to justify their sentenc-
ing decisions on a variety of grounds.

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20

study analyzes a systematic sample of felony cases, obtained from

This
prosecutor records, that were adjudicated in 1983 in a large, urban jurisdiction
we City.&dquo;’
call &dquo;Midwest These data are used to examine and make inferences
about the sentencing behavior of judges in the jurisdiction. We are particularly
interested in the severity of punishment meted out to felony offenders. In
examining the severity of punishment received by these offenders, we argue
that punishment severity consists of two dimensions. The first is qualitative in
nature and involves the type of sanction the offender receives (for example:
prison, probation, fine, or restitution). The second dimension is quantitative in
nature and is represented by the length of the term of sanction. Punishment
severity is then linked with what we describe as the &dquo;frequency&dquo; of crime in the
community and with the &dquo;visibility&dquo; of these crimes. Finally, in interpreting
judicial sentencing behavior, our analysis indicates that judges in the jurisdic-
tion follow a &dquo;just deserts&dquo; philosophy of sentencing in which highly visible
crimes are more likely to receive severe punishment (incarceration), and low
visibility crimes are less likely to receive this sanction (when the researchers
controlled for crime seriousness).
Just Deserts And Punishment
Until recently, the most popular &dquo;model&dquo; of criminal justice in Midwest
City, as well as in other jurisdictions around the country, was an individualized
&dquo;medical model&dquo; of justice which emphasized rehabilitation as the function or
goal of punishment (Allen, 1981; Cullen and Gilbert, 1983; von Hirsch, 1976,
1983b). In this model, judges, parole boards and other criminal justice officials
enjoy almost limitless discretion in their dealings with criminal offenders
(Davis,1969).2 Additionally, experts from outside the legal system, such as
psychiatrists, psychologists, and social workers, assist in determining the
appropriate sanction for convicted offenders (e.g. incarceration in order to
protect the community as well as allow the offender to learn a trade). It is also
assumed that the amount of time needed to rehabilitate offenders varies among
individuals. As a result, convicted offenders are sentenced to serve an indeter-
minate period of time, during which treatment occurs with an eye toward
changing the individual into a law-abiding citizen (Twentieth Century Fund,
1976; von Hirsch, 1983a; Cullen and Gilbert, 1983). In the medical model,
incarceration is intended to change defective, albeit treatable, individuals, and
their release from prison is determined not by the sentencing judge but by
parole board evaluations of the offender’s progress toward rehabilitation
(Shover, 1979).
Increasingly pronounced and critical reaction to this medical model of
justice became widespread during the 1970s, especially after Martinson and
others concluded that &dquo;nothing works&dquo; (Martinson, 1974, 1979; Lipton, et al.,
1975; Mitford, 1973). As a crime control strategy, according to some analysts,
rehabilitation had failed (Wilson, 1975). These critics charged that the failure
of rehabilitation was clear: increases occurred in serious crime during the
1960s and 1970s, prisons became little more than warehouses and &dquo;schools for

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 21

crime,&dquo; and the rate of recidivism among offenders was unacceptably high
(Wilson,1975, 1983).
As a result of these criticisms, a &dquo;War on Crime&dquo; was begun in the 1960s
and 1970s and a new set of policies was introduced for consideration by
criminal justice policy makers. These policies reflected the rising tide of
conservative thinking in criminal justice policy, not only by analysts but also
by the American people in general. These policies additionally reflected a
renewed interest in the old policies of deterrence and/or capacitation as &dquo;effec-
tive&dquo; ways to deal with the &dquo;crime problem&dquo; by &dquo;getting tough&dquo; with offenders
(Becker, 1968; Ehrlich, 1974; Forst, et al., 1977b; Gibbs, 1975; Gold, 1974;
Wilson, 1975, 1983, 1985).
Other analysts, rather then arguing that rehabilitation had &dquo;failed to control
crime,&dquo; have voiced concern over injustices they believed were associated with
the medical/rehabilitative model. These critics noted the inherent unfairness of
the indeterminate sentence for offenders: inmates did not know when they
actually would be released from prison and this created additional stress for
them and their families. Some of these analysts charge that indeterminate
sentences contributed to significant disparity in the amount of prison time
served by individuals convicted of the same crime. These critics also note that
discretionary justice easily leads to discrimination against minorities and the
powerless by agencies of criminal justice; they point out as well that using
prisons to &dquo;correct&dquo; individuals against their will and without their cooperation
is, to say the least, unfair and at best a waste of time and effort (Conrad, 1981;
Fogel, 1975; von Hirsch, 1982; Morris, 1974).
Recently, some criminal justice scholars have criticized not only rehabilita-
tion but deterrence and incapacitation as well. These critics advocate that &dquo;just
deserts&dquo; should be the guiding policy for sentencing criminal offenders (Con-
rad, 1978, 1981; Fogel, 1975; Fogel and Hudson, 1981; von Hirsch, 1976,
1983a, 1985, 1986; von Hirsch and Gross, 1981; Gaylin, et al., 1978; Rothman,
1983; Singer, 1979). &dquo;Just Deserts&dquo; uses moral grounds to justify the punish-
ment of criminal offenders: they are to be deemed deserving of sanctions
because of what they have done, and the appropriate level of sanction would
be determined by 1) the seriousness of the offense for which the person has
been convicted and 2) the individual’s past record of offending. In addition,
sentences would be fixed by the legislature as a way of reducing or eliminating
the discretion of sentencing judges and parole boards which would be
abolished. The legislature would be responsible for creating a sliding scale of
penalties for specific offenses, based on the seriousness of the criminal offense,
the aggravating and mitigating circumstances associated with the offense, and
the offender’s prior criminal record. First-time offenders would be accorded
reduced penalties, while recidivists would be punished more severely. The
logic for such a policy is that recidivists are viewed as being more blameworthy
than first-time offenders. Implicitly then, offender blameworthiness becomes
relevant for determining appropriate punishment, and prior contact with the

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22

criminal justice system is used as an indicator of blameworthiness (Sebba,

1980, 1984; von Hirsch, Knapp, and Tonry, 1987).
Some &dquo;just deserts&dquo; advocates argue that incarceration should be reserved
only for the most serious, violent and property offenders, in those instances
when the individual clearly poses a threat to others (von Hirsch, 1986).
Reduced reliance upon incarceration as an appropriate sanction is justified by
deserts advocates on the grounds that depriving an individual of his/her liberty
for even a short period of time is a very serious sanction and, as such, should
be reserved for only the most serious offenders. Thus, with reduced reliance
upon the penal sanction, increased use of community based correctional
resources would occur and a reduction in prison overcrowding could well result

(Conrad, 1981; Fogel, 1975).

In summary, &dquo;just deserts&dquo; is an attempt to blend justice with fairness. By
focusing on the past behavior of the offender, punishment is not based on
predictions of the likelihood of recidivism or on how long it will take to
&dquo;change&dquo; the offender. Instead, the seriousness of the offense and past record
of offending become the substantive basis for determining appropriate punish-
ment. Policies that are based in &dquo;just deserts&dquo; attempt to limit judicial sentenc-
ing discretion, and advocate the abolition of parole boards. Instead, sentences
are fixed by the legislature which reduces the likelihood of disparity: two
individuals convicted of the same offense receive not only the same sanction
(e.g., prison) but also serve the same period of time (e.g., five years). The focus,
then, is on the criminal act and not on the criminal as is true of other policies.
&dquo;Just deserts&dquo; does not consider diagnosis and treatment, predictions of future
criminal activity, or deterrence of criminals or potential criminals as elements
of the guiding philosophy in sentencing decisions. Instead, the equitable
distribution of punishment among offenders is of key importance
(Longshore,1984).
The Dimensions Of Punishment Severity
A guiding principle of &dquo;just deserts&dquo; is the notion of &dquo;commensurateness&dquo;
of punishment, that is, fitting the punishment to the crime (von Hirsch, 1976,
1983a; 1983b, 1985). This simply translates into the greater the seriousness of
the offense and the harm attached it, the more severe the punishment. The
troubling question that remains, from our perspective, is how to conceptualize
and analyze punishment severity.
Unlike previous research on punishment severity, we propose that criminal
sanctions have two distinct dimensions. In fact, we propose that punishment
severity is not determined by looking exclusively at the type of sanction an
offender receives (e.g., prison). Instead, punishment severity is determined not
only by the type of sanction received, but is also based on the length of the term
to which the offender is sentenced (e.g., ten years on probation).

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 23

The Qualitative Dimension Of Punishment

The qualitative dimension of punishment involves the type of sanction the
offender receives. While a wide range of sanctions are available for use in
sentencing, some of which might be considered intermediate in nature (such as
house arrest or intensive supervision), judges in Midwest City primarily chose
prison or probation as the most common sanction for offenders. Together,
incarceration and probation account for more than 60% of the dispositions
given in the cases. For present analyses, we are primarily interested in incar-
ceration and probation as the major forms of criminal sanction for felony
offenders.
Of the two, we believe prison is the more serious sanction as it deprives the
individual of many of the things that comprise a normal life. As Sykes (1958),
Sykes and Messinger (1960), and Goffman (1961) have pointed out, the &dquo;pains
of imprisonment&dquo; include depriving the individual not only of his/her liberty,
but also depriving the inmate of goods and services routinely available outside
the institution. Additionally, the inmate is deprived of personal autonomy,
opportunities for heterosexual relationships, and a feeling of personal security.
By way of contrast, we consider probation to be an example of a community
based correctional strategy (Senna and Siegal, 1988) that involves conditional
freedom for the offender. This freedom is based on the offender’s ability to
abide by a specific set of rules handed down at sentencing, sometimes called
the &dquo;conditions of probation.&dquo; By remaining in the community, the offender is
allowed to continue a normal life, but knows that his or her freedom is
conditional, and that violation of these conditions could mean being sent to
prison to complete the remainder of the term of sentence (Killinger, Kerper and
Cromwell, 1976; American Bar Association, 1970).
The Quantitative Dimension Of Punishment
The second dimension of punishment severity involves the length of the
term of imprisonment or probation. The second dimension represents a con-
tinuum of time rather than a simple dichotomy as was the case with the type of
sanction. Instead of focusing solely on length of term in order to make
judgments about punishment severity, we believe that the focus should be on
both the type of sanction and the length of sentence. For example, few would
disagree with the position that 20 years in prison is a serious sanction. Is not 5
years in prison also a severe sanction when prison deprivations and conditions
are considered? And could not a long term of probation, say of five years, be
considered a severe sanction? While it is true that the offender has been
released back into the community, at the same time, shouldn’t the threat of
imprisonment that hangs over the offender’s head for five years also be
considered?
In examining the severity of punishment, neither time by itself, nor type of
sanction by itself, tells the complete story. Instead, looking at both could create
a better understanding of punishment and the determining of its severity. How

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24

these dimensions are empirically related to judicial sentencing decisions, either

singularly or in combination, is explored more fully below.
The Frequency And Visibility Of Criminal Offenses
Crime, like most social phenomena, occurs with some degree of regularity.
Some crimes, such as larceny, occur in great numbers, yet remain relatively
hidden from the public’s view (as in the case of shoplifting). Other offenses,
such as armed robbery, occur in much smaller numbers, yet generate a great
deal of attention from the public, and result in calls for &dquo;justice to be done,&dquo; i.e.,
severe punishment for the offender. In other words, while some offenses occur

infrequently, they are highly visible to the community at large, are witnessed
by a number of people, involve a great deal of physical evidence and media
coverage (both print and electronic), and may actually generate subjectively
based &dquo;crime waves&dquo; in the community (Davis, 1952; Biderman, et al., 1967;
Fishman, 1978; Dominick, 1978; Sherizen, 1978; Terry, 1984; Skogan, 1986).
As a result, and regardless of the specific type of crime for which an offender
has been convicted, the offender faces judges who could be influenced by how
often similar types of cases appear in court (crime frequency), or by the amount
of attention that has been drawn to the case from media coverage, neighbor-
hood discussions, and citizens’ perceptions of the offense (crime visibility).
The Frequency Of Crime
Figure 1 presents a classification of criminal offenses along two dimensions:
crime frequency and crime visibility. Crime frequency is determined simply by
counting how often a specific crime appears as a dispositional charge or
charges in the present sample of felonies. High frequency cases include:
burglary (13% of the total sample), drug offenses (18%, primarily possession
of heroin), larceny (18%), weapons offenses (18%, primarily carrying a con-
cealed weapon) and robbery (6%, armed/unarmed). Low frequency offenses
include: assault (4%, simple or aggravated), homicide (3%), sexual assault
(3%), auto theft (4%) and arson (3%) 3
Crime frequency could affect judicial sentencing decisions in at least two
ways. On the one hand, high frequency offenses (those appearing with some
regularity in court) may underscore the &dquo;routine&dquo; nature of much of what
comes to the attention of authorities (e.g., the police or prosecutors). As a result,
the police, prosecutors, and judges, in order to dispose of these &dquo;routine&dquo; cases,
engage in plea bargains, charge reductions, diversion, and similar type ac-
tivities in order to &dquo;clear the docket&dquo; (Eisenstein and Jacob, 1977; Jacob,
1986) 4 High frequency cases that actually come to trial are still dispensed with
very quickly by use of a bench or &dquo;waiver&dquo; trial. Offenders who are convicted
in these trials then become candidates for less serious sanctions, such as a short
stay in jail or short probation term, simply because these are routine offenders
and cases.
On the other hand, low frequency cases typically involve either actual or
potential violence: homicide, assault, sexual assault, or arson. As a result, it

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 25

may be that these cases are not considered routine by authorities and criminal
justice resources are directed at these types of crime with greater intensity. As
a result, jury trials may be more likely to occur, prosecutors may be less willing
to reduce charges or plea bargain, and sanctions may be more severe, not
necessarily because these crimes are any more serious than those we are
designating as &dquo;high frequency offenses,&dquo; but because authorities are more
concerned with controlling the occurrence of low visibility offenses. Thus, the
routine or non-routine nature of felony offenses could not only greatly in-
fluence prosecutorial and judicial decision making during not only preliminary
case processing, but also affect subsequent decisions regarding appropriate

punishment.
Figure 1
A Typology of Criminal Offenses
Along the Dimensions of Frequency and visibility

The Visibility Of Crime

The second dimension of crime which could be related to the severity of
punishment received by an offender involves crime visibility. As mentioned
previously, some offenses receive a great deal of attention from both the media
and citizens alike. These are the crimes most likely to arouse fear in citizens,
result in calls for &dquo;justice to be done,&dquo; and generate unfounded beliefs on the
part of citizens that crime is on the rise, is coming closer to home, and is
becoming increasingly violent in nature. It may even be the case that high
visibility crimes are responsible for generating subjective beliefs on the part of
citizens that a major &dquo;crime wave&dquo; is underway. All of this activity may
translate into harsher sentences for those offenders who are convicted of certain
high visibility crimes.
Crime visibility, we believe, is in large part a product of local media
coverage of crime, either in the newspaper or on local television. Ever since
Davis’ (1952) classic study of crime news in Colorado newspapers, researchers

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26

have consistently pointed out that coverage of crime news by both print and
electronic media largely distorts the nature of crime in local areas. As a result
of this distortion, for many people the &dquo;social reality of crime&dquo; (Quinney, 1970)
is that crime is excessively violent and very close to home, and that the
probability of victimization is very high (Terry, 1984; Sheley and Ashkins,
1984; Dominick, 1978; Sherizen, 1978; Fishman, 1978).
Concentration by the media (both print and electronic) on certain crimes
(e.g., homicide) to the exclusion of other serious crimes, such as sexual assault
or arson, may result in citizens’ reacting to perceived increases in the amount
of crime, its seriousness, and its nearness. In turn, citizens may try to protect
themselves from the immediacy of crime either by purchasing protective
devices or calling for tougher sanctions for these types of offenders. While the
reality may be that crime is decreasing in an area, is not violent, and is less
likely to occur in particular places, people may react as if just the opposite were
the case due to media distortions concerning the extent and nature of crime. In
other words, regardless of the frequency of crime and beyond perceptions of
the seriousness of offenses, highly visible crime may generate subjectively
perceived &dquo;crime waves&dquo; which are then transmitted throughout the com-
munity. In turn, misperceptions of the nature of crime not only affect citizens
actions in dealing with what is perceived to be occurring (e.g., citizens may
start buying guns for protection), but also lead to the exertion of political
pressure on judges and prosecutors to develop and enforce stricter policies for
dealing with criminal offenses (Skogan, 1986).
At present, the offenses of burglary, robbery, homicide and assault constitute
&dquo;high visibility&dquo; crimes. The logic for this is based in part on the crime news
literature which indicates that newspaper column space and local TV news air
time are devoted, more often than not, to these offenses in various locations,
including Midwest City. This observation is also based on a non-systematic
review of editorials and newspaper column space devoted to crime stories in
the two daily newspapers of Midwest City over a six month period in 1983.
Low visibility crimes include drug offenses, weapons offenses (primarily
carrying concealed weapons), larceny, sexual assault, auto theft, and arson. All
of these have been found to be among the least covered offenses by the media,
either print or electronic (Davis, 1952; Sheley, and Ashkius, 1981).
We argue that crime visibility is not only conceptually distinct from crime
frequency, but that it varies in the manner of its effect on judicial sentencing
decisions. For example, we posit that high visibility offenses are more likely to
receive harsher sentences (controlling for crime frequency) as a way of quell-
ing the above described concerns over &dquo;crime waves.&dquo; Low visibility offenses,
on the other hand, are likely to receive less serious sanctions (e.g., probation),
since less concern is voiced by the community about these offenses (again,
controlling for frequency).
As depicted in the typology, high visibility offenses generally are the most
serious in nature, while low visibility offenses, with the exception of sexual

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 27

assault, are less serious in nature (Wolfgang, et al.,1985). At a conceptual level,

it ispossible to separate these notions; but we were concerned with whether
visibility and seriousness could be separated on an empirical level-i.e., is there
collinearity between visibility and crime seriousness To determine if crime
seriousness and crime visibility are empirically related, the correlations among
the seriousness rankings of the crimes and visibility of the offense were
examined, and we found moderate to weak associations at best (r .40 - .15), =

indicating a low probability for collinearity being present.5

We conclude that
both conceptually and statistically, crime visibility and crime seriousness are
distinct phenomena.
In the analysis that follows, we test assumptions regarding the frequency
and visibility of crime and how it relates to a deserts-based sentencing policy.
If crime visibility is related to punishment decisions, this suggests that public
outcry against high visibility crimes results in stronger sanctions against the
offenders, over and above crime seriousness and crime frequency. Thus, we
posit that crime visibility is more likely to be linked to judicial decisions to
incarcerate than it is to the length of time offenders are sentenced to serve.
To summarize to this point, we have argued that the severity of criminal
punishment can be dichotomized along two dimensions: the type of sanction
and the length of the term of sentence. Additionally, we have argued that
awareness of crime frequency and crime visibility may be useful to under-

standing the nature of punishment severity.

Below, we analyze judicial sentencing decisions in terms of how crime
frequency and visibility, as well as crime seriousness and prior criminal record,
explain variance in the sentences of criminal offenders and determine the
extent to which judges in Midwest City subscribe to a deserts-based sentencing
policy.
Method
Midwest City is an older, highly industrialized and urbanized area with a
large population (about 1 million). It has a large police department (over 5,000
officers), a prosecutor’s office which employs over 150 attorneys, and a
specialized city criminal court system that processes over 15,000 felony cases
annually.6
In the Spring of 1985, we received permission from the Midwest City
Prosecutor’s Office to gather a sample of cases that had been adjudicated and
were deemed to have been closed. These cases were kept in paper files which,
at that time, were stored in a large central receiving room at the main office of
the county prosecutor in downtown Midwest City.
Prosecutor Files
Files are 10&dquo; x 15&dquo; paper folders
containing information associated with a
single criminal event. Cases, on the other hand, refer to individual defendants
indicted for felony crimes. It is possible for a file to contain multiple cases if
more than one defendant is being prosecuted for a crime. In these instances,

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28

each defendant is charged separately by the prosecutor’s office, and each

defendant will constitute a unique case. For example, if three individuals are
charged with burglarizing a drug store, there is a single paper file that contains
information about the burglary event; however, three separate burglary cases
are generated and are contained in the file. For purposes of this paper, the
felony case is the unit of analysis.
Sampling Strategy
A sample of files from the prosecutor’s storage room was obtained by first
estimating the total number of felony cases closed (in 1983) by the prosecutor’s
office. Based on prosecutor figures, we estimated the total to be about 15,000
cases. Next, we randomly selected a starting point on the storage shelves

containing files from 1983 and drew a 5% random sample of these files: the
sampling selection interval was one in every 20th file. This resulted in a
drawing from the shelves of 750 files containing 803 felony cases. Thirteen of
the files were later discarded because they were largely incomplete or because
they contained cases that had been initiated in a different year. After excluding
these cases, we were left with a sample of 737 files containing 795 felony cases.
Four hundred and fifty one of the cases ended in a disposition that involved
either imprisonment or probation for the offender. These 451 cases serve as the
basis for the present analysis.
In terms of the characteristics of the offenders in the sample, the following
were found: mean age, 27 years; 87% black; 93% male. Additionally, 46% of
the offenders had at least one prior felony arrest. In terms of adjudication
charges, 14% involved violence (homicide, sexual assault, robbery or ag-
gravated assault), 31% involved property offenses (burglary, larceny, auto theft
or arson), 16% were drug related, and 14% involved weapons offenses

(primarily carrying concealed weapons). About 25% of the dispositional char-

ges involved attempts. And finally, about 26% of the cases were disposed of by
waiver trial, 7% involved jury trials, and 67% involved plea bargains.
Variable Measurement
Appendix Table 1 presents the coding strategies associated with variables in
the study. All variables are measured based on responses appearing in official
documents found in the files: police reports, transcripts of proceedings,
prosecutor documents, and other standard forms.
Police reports are used to generate data concerning the personal charac-
teristics of the offender: age, race and sex. Prosecutor documents are used to
determine the disposition of the case, in particular, the type of sanction
received. The offender’s &dquo;police jacket&dquo; or record of prior arrest is used to
determine the extent of prior contact with the criminal justice system. For each
offender, the total number of arrests of each type is summed and coded. In the
present analysis, total number of felony arrests is used.
Crime seriousness is measured using a method developed by Wolfgang, et
al. (1985:129) in their National Survey of Crime Severity. For each criminal

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 29

event, use of force, extent of injury to the victim, and dollar amount of property
taken are coded and summed to determine the seriousness of the event. 7
The frequency and visibility of an offense are dummy variables, in which
high frequency offenses and high visibility offenses are coded &dquo;I&dquo; while low
frequency and low visibility offenses are coded &dquo;0&dquo;.
Analyses And Results
To explore the link between the qualitative dimension of punishment
severity (the IN/OUT decision) and crime frequency and visibility, Tables 1
and 2 present the results of cross tabulation of type of sanction (IN/OUT) with
the frequency and visibility of crime.
As indicated in Table 1, there is at best a weak association between crime
frequency and type of sanction imposed upon convicted felons. Those who are
convicted of low frequency offenses are neither more nor less likely to receive
incarceration than are those convicted of high frequency offenses. Ap-
proximately one-half of those convicted of low frequency offenses are sen-
tenced to prison, whereas forty-two percent of those convicted of high
frequency offenses are sent to prison.
Table 1
Crosstabulation of Crime Frequency
with type of Sanction

..

I
Includes the offenses of burglary, robbery, drugs, possession of weapons, and larceny.
2
Includes the offenses of homicide, assault, sexual assault, auto theft, and arson.

Table 2 indicates that crime visibility is associated with the type of sanction
(prison versus probation). Those convicted of low visibility offenses are more
likely to be sentenced to probation than to prison, whereas those convicted of
high visibility offenses are more likely to be sent to prison than to be placed on
probation.

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30

Table 2
Crosstabulation of Crime Visibility
with type of Sanction

1
Includes the offenses of homicide, assault, burglary and robbery.
Includes the offenses of sexual assault, autotheft, drug offenses, possession of weapons, and
larceny.
These results provide at least preliminary support for our contention that
high visibility offenses are associated with a deserts-based sentencing strategy
in Midwest City: defendants who are convicted of high visibility offenses
apparently are more &dquo;deserving&dquo; of a serious sanction (prison) than are those
convicted of low visibility offenses.
This association, of course, could be spurious. In order to discern the
validity of the relationship found between the visibility of crime and the
IN/OUT decision, a logistic regression model is tested in which the IN/OUT
decision is regressed on crime seriousness, the offender’s prior arrest record,
and the defendant’s personal characteristics.
As shown in Panel A of Table 3, crime visibility is significantly related to
the IN/OUT decision, controlling for factors such as previous arrests and crime
seriousness. This analysis provides relatively strong support for the notion that
a deserts-based model is at work in Midwest City, that decisions to sentence a
convicted offender to prison are influenced by the visibility of the crime and
by an offender’s &dquo;blameworthiness&dquo; as measured by total felony arrests.
To examine the relationship between crime visibility and the length of term
of sentence, we use OLS regression analysis to explain variance in the length
of the term of incarceration or probation as a function of crime seriousness,
total arrests, offender personal characteristics, and the frequency and visibility
of crime. As Panel B of Table 3 indicates, only crime seriousness is significant-
ly related to the duration of the term of incarceration. And, as Panel C of Table
3 shows, felony arrests, crime seriousness, and crime visibility are all sig-
nificant predictors of the length of a term of probation. We conclude, therefore,

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 31

that visibility is related to the qualitative dimension of punishment severity, in

that it explains the probability of an offender’s being sentenced to prison or
probation, and that visibility is related to the quantitative dimension of punish-
ment severity, i.e. the length of a term of probation.

Table 3
In/Out Decision and Length of Sentence Term with Crime Seriousness, Crime
Frequency, Crime Visibility, Total Felony Arrests, and Defendant Personal Charac-
teristics

1 In logistic regression, a Pseudo R2 is used, where R2 = c/(N+c):

c is the chi square
statistic for the overall goodness of fit and N is the sample size. The range of this
measure of fit is from 0 -1; as the measure approaches zero, its goodness of fit is
diminished (Aldrich and Nelson, 1984: 56-58).

Discussion
Punishment severity is conceptualized as consisting of two components.
One component is qualitative in nature and refers to the type of sanction
which the convicted offender receives (incarceration or probation). The second
component is quantitative in nature and refers to the length of the term of
sentence the offender receives.

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32

In order to understand influences on judicial sanctioning decisions, we argue

that crime can be described along the dimensions of its frequency and visibility
and that these are related to punishment severity. Analyses reveal that both
crime frequency and crime visibility are indeed related to judicial sentencing
decisions. These results we believe point to a deserts-based sentencing policy
at work.
It also appears that of the two aspects of crime (frequency and visibility),
crime visibility is the better predictor of both the type of sanction received by
an offender (prison versus probation) and the length of a term of probation
received (but not the length of a term of incarceration). We believe this can be
explained as follows. Returning to the arguments made earlier about determin-
ing the severity of punishment, a serious sanction involves either being sen-
tenced to a term of incarceration or to an extended probationary period. In other
words, if an offender is sentenced to prison or jail, the amount of time
associated with that sentence is less important than is the simple fact that he/she
has been incarcerated. The reality is that incarceration by itself, and regardless
of the time period involved, is a severe sanction when just deserts is the guiding
philosophy. In a policy based on just deserts, prison is intended for only the
most serious types of offenders. And our results indicate that offenders who are
convicted of high visibility offenses do indeed have a greater probability of
being incarcerated (controlling for crime seriousness). Since many of these
high visibility offenses involve potential injury or death, or involve potentially
large scale property destruction, if punishment is to be commensurate with
these offenses, incarceration would seem to be appropriate if we assume a
deserts-based policy is in operation.
However, we still must explain why it is that crime visibility is a good
predictor of the length of a probation term (Panel C of Table 3). Generally, in
a deserts-based policy, the length of a term of sentence is of secondary

importance in determining the appropriate type of sanction (e.g, prison versus

probation). Apparently, in Midwest City, a variant of &dquo;true&dquo; deserts is at work.
If a judge sentences an offender to prison, the length of the stay is of secondary
importance, since the offender has already received a serious sanction: incar-
ceration. If, however, the judge’s decision is that probation is warranted, the
length of the probation term does become important. If we consider that for all
the sample cases in which offenders were sentenced to probation the average
term was about two years, and that we also found in about one-quarter of the
sample cases the terms of probation were much greater than the average, it
appears that in some cases long terms of probation become akin to a period of
incarceration, i.e., a severe sanction. In the minds of the judges then, long terms
of probation apparently become equated to short periods of incarceration, and
as a result, probation becomes a serious sanction for these offenders.
On a more practical level, it may also be the case that judges are simply
reluctant to add to an already overcrowded prison system, and thus are less
likely to sentence offenders to prison. At the same time, some offenders, while

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 33

deserving of serious sanction, do not (apparently) deserve incarceration. In-

stead, these offenders sentenced to long terms of probation. Judges may
are
perceive that such sentences constitute an appropriately serious sanctions. In
one sense, the sanction (long probation term) becomes commensurate with the
offense, while at the same time, the judge avoids adding to an already over-
crowded prison. If no more than symbolically, at least some measure of justice
is afforded the community by punishing those deserving of serious sanction.

Notes

1 As per arrangement with the prosecutor’s office, the name of the jurisdic-
tion will not be revealed.
2 Davis (1969) has characterized discretion as the freedom to act or not act
by criminal justice personnel. While all criminal justice actors enjoy a certain
level of freedom, they are bound by various rules, such as constitutional
restriction. Prosecutors are not only bound by constitutional restrictions, but
also by "informal" office policies which limit their discretion. Sloan (1987:
134-62) has analyzed these policies and their effects.
3 In the early 1970s, Midwest State revised its penal code. Rape was
removed from the code and replaced by the offense "criminal sexual conduct."
CSC varies in degree, from 1st-4th, depending on the extent of the assault.
Punishment for these offenses ranges from life imprisonment (CSC 1st degree)
to one year in jail/fine (CSC 4th degree).
4 Approximately 70% of the felony cases in the sample used plea bargains
to reach dispositions, most of which involved charge reductions. About 3% of
the total sample cases used diversion, primarily for first time weapons of-
fenders. In the remaining cases going to trial, most involve waiver trials during
which charge reductions occurred. In sum, a vast majority of the sample cases
involve routine criminal offenses toward which few resources were directed.
5 Correlations are available from the first author. Visibility is dummy coded
"1" for high and "0" for low.
6 The Midwest City criminal court handles only cases originating inside the
city limits. Fifteen judges hear felony cases, while 6 handle nothing but
misdemeanors.
7 The methodology used to calculate the crime seriousness scores is found
in Wolfgang, et al. (1985:129-136).
8 Aldrich and Nelson (1984) call this a Linear Probability Model. The
assumptions include: Y is a binary variable; Y depends on K observed vari-
ables ; the data are from a random sample; and, the observations (Xs) are not
serially correlated. Coefficients in the analysis are interpreted as the probability
of Y = 1 with a given value of X. The coefficients in the model are unbiased
but do not have the smallest possible sampling variance. The assumption
concerning homoscedasticity is that errors in the dependent variable vary with
the values of the independent variables.

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34

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Appendix Table I
Variable Names and Coding Strategy
VARIABLE CODING CONVENTION

IN/OUT Prison = 1
Probation 0 =

LENGTH OF TERM Number of Months of sentence,

(length of term either
probation or prison)
CRIME SERIOUSNESS see: Wolfgang, et al. (1985)
TOTAL ARRESTS
(Total number felony arrests) Sum number of felony arrests
found in arrest records
CRIME FREQUENCY High= 1
Low = 0

CRIME VISIBILITY High= 1

Low = 0

AGE (Age of the Offender) In Years

RACE (Race of the Offender) White = 0

Black = 1

GENDER (Sex of the Offender) Female = 0

Male = 1

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