Wednesday, August 16, 2006

So You Want to Start a Sentencing Commission? Part I

Part I of a multi-part series.

With California, Colorado, New Zealand, and who knows who else considering starting a sentencing commission, we thought we might do our part to help, imparting our vast and hard-earned experience to others so they can avoid our mistakes, or make them better. What we'll be doing over several coming posts is to bring them and you some of the key things they should think about, and not think about. We'll get them posted together over on the side for easy integration so you can read in bigger chunks or all at one time when we're finished. We invite your comments and questions in the comments or by e-mail (we're easy to find, at least by that Nigerian prince). And most of all, we hope they help in making the decisions to start or not and, if "start," to minimize the wear and tear and aches and pains. And in promoting a broader discussion of points and advice made among all of us.

Let's get started.


States have considered creation of sentencing commissions for over a quarter century now. Some of the earliest, such as in Pennsylvania and Minnesota, are still around and functioning. Others in the early group eventually disappeared (Wisconsin) or reconfigured (Oregon). More recently, states such as North Carolina, Kansas, and Utah have developed effective commissions while others (Maryland, Oklahoma) exist but play slight policy roles and some like Michigan and Massachusetts have to fight off extinction (MA succeeded, MI did not). Meanwhile, New Mexico, the District of Columbia, and Alabama get air under their wings, and Wisconsin starts again and looks headed for a repeat of its first effort.

These commissions have tended to reaffirm the perceived role of states as “laboratories” for governmental policy and structures. Most of the states have both sentencing commissions and structured sentencing, in which sentence ranges for particular offenses and offenders are proposed. Most of those states structure their proposed sentences in matrix form, like mileage charts in maps from one city to another. Find your offense on the left, your type of offender (usually based on prior convictions and other factors) on the top and move your finger across and down to the cell with the recommended sentence range in it. But some states have commissions without guidelines (Oklahoma), while others use narratives rather than matrices (Ohio until recently shot down) and may not have commissions at all (Alaska).

Despite all this activity and variety, the majority of states still do not have either commissions or guidelines. If you are reading this, the odds are good that you are from one of those states and are considering changing that situation. There are plenty of people to advise you besides us. The small fraternity that is sentencing commissions has tended to be unusually helpful and reciprocating for those who seek assistance. The academic community has noted scholars such as Michael Tonry, James Austin, Kevin Reitz, and Richard Frase who have provided advice for almost two decades now. And the Vera Institute has a well-regarded program of technical assistance with professional and practitioner resources on call, plus an excellent website.

So why are we posting this? Because, between the two of us, we have been in at the beginning of five sentencing commissions and know a lot of things now that we wish we had known then. We both have very similar backgrounds in sentencing and even some overlap. Kim Hunt, Ph.D. in political science from the University of Kansas, started as research director for the fledgling Virginia Sentencing Commission and moved on to direct the Maryland Commission on Criminal Sentencing Policy, a study commission investigating Maryland sentencing practice and recommending changes in the state system. From there, he became executive director of the District of Columbia’s Advisory Commission on Sentencing. Mike Connelly, Ph.D. in political science from the University of Missouri, began his sentencing career as research director for the Oklahoma Criminal Justice Resource Center, which staffed that state’s fledgling sentencing commission. He later directed Maryland’s State Commission on Criminal Sentencing Policy, which had been proposed by Kim’s study commission, and became executive director of Wisconsin’s latest sentencing commission before becoming adminstrator of evaluation and analysis for the Oklahoma Department of Corrections. Between them they have over two decades of experience in setting up and successfully operating sentencing commissions. While they may not have yet “seen it all,” they have seen enough to keep you from their mistakes and to set you free to make your own.

Starting a sentencing commission is not like assembling a bike, or, if it is, the bikes thus far assembled are an odd collection. But, just as bikes may look different but will have many of the same basics (and have to have a few exacts), so too will commissions. The environment you’re in and the expectation you’re operating under might not quite match what we’ve experienced, but much of it will just be variations on themes we’ve already played.

We’ve been in periods of prison boom and resources bust. We’ve worked with governments with legislatures and governor the same party and different parties. We’ve had judges support us and oppose us. We’ve had consensus commissions and factionalized commissions. One of us has even had to answer at least in part to the federal government as well as the usual jurisdiction. We both worked in partnership with a university. We’ve operated on various combinations of general revenues and federal dollars. We’ve had staffs of up to a dozen and as few as two. We’ve done risk assessment, population projections, fiscal impact analyses, legislative testimony, guidelines training, and even taken out our own trash. We know most of how commissions are different and most of how they’re the same. We think we have something to share of value to those facing situations we’ve faced and to those who have no idea what they’re facing.

If we haven’t lost you so far, we think you’ll be interested in the series of posts we have coming. And maybe even find some it enjoyable. So welcome aboard. And make sure your seatbelt is fastened securely.

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