Special Issue: New Theory and Research on Sentencing

Occasionally, I encounter a colleague in criminology or sociology who does not share my fascination with courts and their sentencing decisions, and they ask me (usually with some bemusement) a version of, “Why do people keep studying that?” It is true that sentencing research is a very mature field. When I was constructing the literature review for my dissertation in the early 1990s, I put together an annotated bibliography of over 120 works, and even that was limited to high-quality research and theory from the late 1960s to the early 1990s. Sentencing research has continued as a vibrant enterprise in the 2000s and 2010s, and new studies constantly appear across the landscape of criminology and criminal justice, as well as respected journals in sociology, law, political science, and economics.

I understand the bemusement of these colleagues. It does feel that we sometimes continue to tread the same ground over and over, parsing out this or that extralegal effect on sentencing severity from these or those legally relevant effects. But five features, I think, perennially keep the study of sentencing relevant and active. First, to study sentencing is, in a fundamental sense, to study justice itself. Sentencing is a window into a society’s, and a community’s, cultural and social production of who and what is considered deserving of sanction, and the moral or utilitarian goals of those sanctions. In terms of justice, sentencing also enacts judgements of harm and care, a basic moral foundation in moral psychology (see Haidt, 2012).

Second, to study sentencing is to study fairness, another basic moral foundation (Haidt, 2012). Fairness raises questions about the extent to which sentencing decisions are shaped by, and in turn reproduce patterns of social inequality. This is why we have long focused on discerning extralegal sentencing disparity based on race/ethnicity, class, citizenship, gender, or other intersecting social statuses (Steffensmeier, Painter-Davis, & Ulmer, 2017). If sentencing reproduces social disadvantage among the already marginalized, this renders an entire justice system problematic.

Third, contrary to popular images of lone judges meting out justice as they best see fit, sentencing is inherently an organizational production. This means the study of sentencing is a study of organizational processes, outcomes, and environments (Ulmer, 2019). Thus, we investigate which actors have organizational discretion to shape punishment decisions? How do they use that discretion? With whom do they negotiate, cooperate, or conflict? What organizational or environmental constraints and accountability exist, if any, on their use of discretion?

Fourth, sentencing is an ongoing natural experiment in policy implementation. Policy necessarily consists of what Estes and Edmonds (1981:76) call “the transformation of intentions.” Sentencing is embedded in local social contexts, and reflects the tension between original policy goals versus the interpretation, adaptation, or even undermining of those goals in local courts. This is how local social contexts produce the “contours of justice” (Eisenstein, Flemming, & Nardulli, 1988). Furthermore, sentencing law, policy, and reforms are ever-changing. This means that the sociolegal terrain on which sentencing occurs is always changing, and so too are sentencing patterns, trends, and forms of disparity.

Fifth, sentencing is the site of major questions surrounding race/ethnicity and mass incarceration (see Engen, 2018). For example, how much have individual sentencing decisions themselves driven mass incarceration, as compared to changes in sentencing policy? Do racial/ethnic disparities in incarceration largely stem from discretionary sentencing decisions, or from decisions that occur further back in criminal justice case processing, such as conviction, charging, and arrests?

This special issue presents both novel theoretical approaches to understanding sentencing decisions, and many new empirical contributions that extend our knowledge of contemporary sentencing. Mona Lynch calls for a rethinking of the uses and misuses of the focal concerns perspective in sentencing research, and problematizes the line between our analytical treatment of “legally relevant” effects vs. “extralegal” factors more generally. Tyler Vaughan, Lisa Bell Holleran, and Jasmine Silver extend the psychology of moral foundations (harm/care, fairness/cheating, authority/respect, ingroup/loyalty, purity/sanctity) to explanations of juror decisions in capital cases. Two pieces, by Bryan Holmes and Ben Feldmeyer, and Deirdre Healy and Joe McGrath, offer new conceptualizations of fundamental features of sentencing under the federal sentencing guidelines, namely, the role of criminal history (Holmes and Feldmeyer) and the complexity of white collar offending (Healy and McGrath). The remaining articles, by Brian Johnson and Pilar Larroulet Philippi; Kelsey Kramer and Xia Wang; and Nick Petersen all investigate the important impact of earlier selection processes and decision-points for sentencing outcomes, and how these earlier decisions condition the roles of race, gender, and offense severity. In their own ways, each of these articles demonstrates how the study of sentencing is vital to our understanding of justice, fairness, criminal justice organizations, and policy.

Jeffery T. Ulmer
The Pennsylvania State University
[email protected]