The New Penology: How Court Sentencing Practices Have Been Influenced by the Growing Emphasis of Actuarial Factors Over Individual Characteristics

Thomas Cohen, Pretrial Services Resource Center

ABSTRACT
Various criminal court scholars argue that the sentencing process is being driven by a new theoretical construct termed the "new penology." While a good deal of literature covers the new penology, there have been no attempts to empirically demonstrate whether this theory explains sentencing practices.

This research will empirically test one of the new penology's predominate assumptions: that sentencing has shifted from an individual to an actuarial approach. One of the chief components of traditional sentencing was that, along with the current offense and prior record, courts would consider personal characteristics such as the offender's rehabilitative potential. New penology proponents argue that courts in sentencing guideline states ignore individual attributes and base their decisions only on factors in guideline worksheets. While this proposition may hold true for sentences that adhere to sentencing guidelines, does it also apply in cases where judges depart from the guideline recommendations? In other words, when judges depart from sentencing guidelines, do they give any weight to non-guideline factors or do they continue to rely on guideline specified criteria? Sentencing data from Virginia will be analyzed to determine whether judges are citing guideline or non-guideline factors when they depart and the overall impact of their departure reasoning on sentencing.

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Updated 05/20/2006