Thursday, August 24, 2006

The Conversation Starts

As you may remember (or be tired of), we've been asking for comments and contributions to our conversation here and, thanks to Tom (last name too famous), we've begun to put together a thread. We won't always do this, but here's where we are in it now so you might be tempted to join in. Or at least to send us something yourself. We'll promise to respect your privacy as requested, just like Tom (last name too famous).

Tom--Thanks for your excellent Blog. I would appreciate your thoughts aboutwhether the grid approach to guidelines is preferable to some other method.I am familiar with the use of grids, but what are the others? Do they havesome theoretical underpinning? It seems to me that the grid approach mixesapples and oranges.

Me--Tom--Thanks for the kind words. OH is the usual example of a state without grids, but it just had parts struck down. They had written rules that judges would have to follow or explain why, such as "all first-time offenders must receive the lowest prison sentence in the legislated determinate sentence" (very rough paraphrase). They got into trouble for Blakely reasons, as I recall, and I believe you'll find similar approaches in CA, Alaska (never can remember the abreviation), AZ, probably others. They are interesting and worth considering. I've gotten less enamored of grids as I've dealt with commissions and after being a state-certified court mediator. I really don't have anything better. I would like to see all states, guidelines or not, put more effort into determining what sentences work with whom when and why. I think commissions have only gone part way in their original hopes, and I'd like for the conversations here to maybe work us more in that direction. For now,I'm interested in why you see apples and oranges in the grids. Care to elaborate? Thanks again for writing in.

Mike Connelly

Thanks for your question - re. whether the grid approach to guidelines is preferable to some other method. That is a rich subject and I suspect Mike and/or I may want to develop a longer post on this question, but I thought I'd mention a few things off the top of my head.

Grids, the common choice in the US since Minnesota's system was developed in the late 70's, is not the only system. Wisconsin (Mike's former address) and Ohio (Dave Driscoll is the director there) have gone a different direction that still considers offense severity and prior criminal record, but has a more narrative-based approach (Mike will correct me if I have misstated this). In many ways these systems require more of judges in terms of articulating their reasons, and this has always been an issue in grid systems as well as non-grid systems (e.g., reasons for departure from the grid). Virginia (where I was research director and worked for Rick Kern, executive director) is not a grid but a series of factors that are scored and the final score determines both the in/out decision and the sentence length. Again, it mostly focuses on the same sorts of factors (mostly aspects of offense severity and prior criminal record) and my own opinion is that it is sort of a multi-dimensional grid, somewhat more complex but still a variation on a grid (Rick might disagree with that characterization - but there you go).
Grids are sometimes dismissed as "cookie cutter justice." This characterization, in my opinion, is generally unfair but unfortunately may be apt for the US sentencing guidelines which are so complex and restrictive for judges. But even a simple grid can address many of the most important purposes of sentencing - just deserts, culpability of the offender, harm to the victim, public safety through incapacitation or specific deterrence (Prior record - found on all grids - being the best predictor of future risk to public safety in any study I know), etc. They may even be directed at other goals such as restoration of the victim and the community, although I'm not sure any grids have been so directed to date.
There are many good reviews of comparative systems. I will just mention a few. My DC Commission's report in 2002, Chapter 1 (see link below) includes a review of US (special focus on 4 states, three with grids) and even discusses briefly on page 5 other countries w/ non-grid systems. We didn't say a lot about our decision to opt for a grid (Frankly it had more to do with finding a system with which I could achieve consensus among my members - Whew, was that tough!). Other resources are Richard Frase's article in Columbia Law Review, v. 105:4 (May 2005) and Tonry and Frase (2001) Sentencing and Sanctions in Western Countries.
Finally, Mike and I wrote an article in the Federal Sentencing Reporter in April 2005 on Advisory guidelines v. presumptive guidelines, but one of our general points applies to the subject of grid or no grid. That is, sentencing guidelines systems are complex and context specific. There is no "right way" but there are better and worse ways and local context, politics, degree of judicial discretion granted, whether or not there will be appellate review, etc. etc. etc. Grids can make for bad policy, but just because you can find a bad grid or two doesn't mean too much, as far as I am concerned.
I hope these thoughts are useful - as I say we should probably work this into a post.

Take care,

Tom--Thanks to both of you for your responses. Now I have some homework to do. I certainly subscribe to you¹re your interest in ³determining what sentenceswork with whom, when and why.²Mike, you asked that I elaborate on ³why I see apples and oranges in grids.²I think a sentencing system should unpack the several provocations uponwhich sentences are based and then work out responses to each of those provocations. This is my understanding of how people naturally solve problems, but grid systems work in just the opposite way, making them seem counter-intuitive. Grids are used to pack all of the State¹s correctionalobjectives, strategies and tactics into a single unitary all-in-one response, thereby mixing apples and oranges..Please let me elaborate just a little. Enforcing the State¹s warning not to commit a crime and holding people accountable for committing a criminal offense are determinate objectives. They do not change once undertaken.Controlling a person¹s risk of committing another crime and reducing thatr isk are indeterminate objectives. Risk often changes over time. It follows that a workable sentencing system must be both determinate and indeterminate. This calls for tandem sentencing. Sentences that bundle all of these objectives into a single unitary response are unreasonable on their face and unworkable it seems to me.I believe that sentencing systems should emulate the way decision-makers naturally solve problems and that calls for help from the cognitive sciences. Grid based unitary guidelines are synthetic substitutes for what should be natural guidelines for each provocation response.

Me--Tom--You may be interested in the NIJ study that we started while I was in WI and should be completed this next summer. The WI guidelines worksheets ask for judges to indicate the factors they consider most important at sentencing of 11 top felonies. We did some research on them and posted it in "snapshots" on the commission website: You might look at those if you're interested (under "publications," I think) and let me know if you have any questions. Would you have any problem with me calling you "Tom" and posting our exchange (including Kim's)? It might encourage others to get in touch. I'd understand, of course, if you preferred not. In any case, it's good to hear from you. Please keep us in your loop. Thanks again.


See how easy this is???

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