Abstract
The COVID-19 pandemic significantly impacted court operations across the country. In March and April of 2020 “business-as-usual” was upended and the entire court system was forced to respond in an unprecedented way. Using Pennsylvania Commission on Sentencing data, we explore the impact that COVID-19 had on sentencing outcomes. Three distinct periods: pre-COVID-19, the onset of COVID-19 during which an emergency judicial order limited court operations, and a period after the order was lifted are defined to compare trends and assess differences. Utilizing the natural experiment created by the pandemic we present a descriptive and multivariate analysis of sentencing practices focused on racial disparities. The paper employs two theoretical frameworks (focal concerns and the liberation hypothesis) to motivate competing expectations regarding sentencing behavior and disparities.
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Data Availability
The Pennsylvania Commission on Sentencing maintains public release datasets that are available upon request.
Notes
Additionally, scholars have documented the impact that the pandemic has had on changing crime rates (Boman and Gallupe, 2020; Jossie et al., 2022; Piquero et al., 2021; Reid and Baglivio, 2022; Rosenfeld and Lopez, 2020), law enforcement practices (Jennings and Perez, 2020; White and Fradella, 2020), and problem-solving courts (Hardin and Sydrow, 2020; Hartsell and Lane, 2022).
The rate at which courts returned to a normal caseloads and operations varied across the country with some metropolitan courts continuing to rely on virtual hearing well into 2021.
Order of the Supreme Court, No. 531 Judicial Administration Docket, March 18, 2020.
Order of the Supreme Court, No. 532 Judicial Administration Docket, May 27, 2020.
Filing and disposition counts are based upon Court of Common Pleas data provided by the Administrative Office of the Pennsylvania Courts. Counts are limited to one case per unique docket number.
Sentencing information is based on the number of sentences imposed in 2019 and reported to PCS between January 2019 and April 2020, and sentences imposed in 2020 and reported to PCS between January 2020 and May 2021. Counts of sentences imposed are limited to the most serious offense in a criminal incident. Differences in the number of sentences imposed (PCS) and filings and dispositions (AOPC) are due to the fact that many cases are disposed via withdrawal, dismissal, acquittal, a finding of not guilty, and charges that are reverted to and disposed of in the lower court. Additional differences may be due to selective underreporting of sentencing information to PCS.
Data on COVID-19 cases was obtained from the Pennsylvania Department of Health Coronavirus Update Archive (https://www.health.pa.gov/topics/disease/coronavirus/Pages/Archives.aspx).
Types of sentencing alternatives imposed are based on the most serious sanction for which an individual is sentenced. Dataset is limited to the most serious offense in a criminal incident.
Probation includes sentences of restrictive conditions of probation, and sentences formerly referred to as county intermediate punishment.
For each conviction offense an offense gravity score (OGS), representing the statutorily defined severity of the offense used in sentencing guideline recommendations, is assigned based on the elements of the conviction offense and the classification of the crime. OGS scores range from least serious (score of 1) to most serious with a score of 14.
Prior Record Score (PRS) is a measure of an individual’s criminal history that is considered together with the OGS of the specific offense to provide sentencing guideline recommendations. PRS captures both the severity and the quantity of past adjudications and convictions, ranging from PRS 0 (1 prior misdemeanor or no priors) – PRS REVOC (two prior convictions for “four-point” offenses and a current OGS 9 or greater (204 Pa. Code § 303.4).
President judges (also known as presiding judge in other jurisdictions) had discretion to enact local policies which may not align exactly with our periods as defined; it is possible that some courts did not “reopen” immediately when the declaration of emergency was rescinded throughout the state.
We exclude observations from Forrest County; there were no convictions in the “ONSET” period reported to the Commission on Sentencing.
All felony and misdemeanor convictions in the Courts of Common Pleas are required to be submitted the Commission on Sentencing. The Commission does not receive information on juvenile adjudications, convictions for summary offenses, convictions occurring in Magisterial or Municipal Courts, or convictions from external jurisdictions.
The earlier descriptive analysis is presented at the criminal incident level for consistency with the published 2019 Annual Report. A criminal incident is identified by a unique offense date; it is possible that multiple criminal incidents are considered and sentenced together at the same judicial proceeding.
State Intermediate Punishment (SIP) sentences are included with the confinement sentences. Prior to Dec. 18th 2019, SIP was a sentencing alternative available to judges that included a mandatory period of 7 months of state confinement.
Hispanic ethnicity is treated as a mutually exclusive category of race in PCS data along with the following categories: American Indian, Asian/Pacific Islander, Black, Other, Unknown, and White.
In the PCS data there are 470 instances where the race of the individual for the most serious offense in a judicial proceeding was identified as “Hispanic”. Following the surname reclassification effort there are 8,475 instances (about 6%) where race is classified as “Hispanic.”
Pennsylvania’s advisory sentencing guidelines provide both length and disposition type recommendations. Any recommendations where the minimum length is “RS” are considered as 0, all other recommendations (where the minimum is at least one month of confinement) are coded as 1 “recommended confinement sentence.”
The PCS Annual report is available at https://pcs.la.psu.edu/.
Due to our list-based approach for classifying individuals of Hispanic ethnicity (see independent variables section) we have lower levels of confidence in the estimates that are associated with Hispanic ethnicity. While we suggest that this approach represents an improvement over other solutions (listwise deletion, using the data “as-is”, etc.) we cannot verify the accuracy of this classification method.
We do not engage with direct tests of the tenets of focal concerns theory, instead we have employed it as theoretical framework to consider the implications of the COVID context.
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Acknowledgements
The authors would like to thank Mark Bergstrom for his continued support throughout this project and helpful feedback. Any views expressed here are not necessarily those of the Pennsylvania Commission on Sentencing.
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Zvonkovich, J., Kleiman, M., Hester, R. et al. The Impact of COVID-19 on Sentencing Practices. Am J Crim Just 48, 921–944 (2023). https://doi.org/10.1007/s12103-023-09730-y
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DOI: https://doi.org/10.1007/s12103-023-09730-y