Thursday, August 17, 2006

So You Want to Start a Sentencing Commission? Part II

Part II of a series to assist those considering creation of a sentencing commission. Links to other entries to the right.

Why a Sentencing Commission?

It’s a legitimate question, and, given the path a positive answer will put you on, you should think it through clearly before committing. Initially, many states that started commissions in the 1980s were caught up in what could have been seen as a trend sweeping academic and practicing criminal justice, mainly motivated by sentencing disparity but also in the thrall of itself as a reform movement. By the 1990s the newness had worn off, but the desperate search for ideas to fight crime while controlling costs led many to more elaborate variations on the initial efforts. Today, while commissions do still fail or find original intents besieged, the institution has gained acceptance and legitimacy, with some states like Wisconsin even reconstituting abolished commissions in the face of skyrocketing incarceration rates.

So why are you interested in starting a sentencing commission? If you’re like most prior investigators, your answer will likely be one or more of the following. (You will find that, while each of these purposes may be worthy, experience shows that their foundations are not quite as firm as you may initially think.)

Sentencing disparity—Let’s say that essentially the same offenders in some jurisdictions of your state get different sentences, higher or lower, than in other jurisdictions when they have committed essentially the same offense. Is it because of different caseload pressures? Racial bias? Gender preferences? Incompetence? Cultural differences among the jurisdictions? Whatever the reason, your state may have decided that the interests of equal justice call for more uniformity and standardization of your sentences.

Concerns like these are what tend to draw liberals into the commission/guideline camp and have drawn more interest of leaders of minorities in recent years. Requiring set sentences and allowing consideration of only a few factors relevant to the case (number of prior convictions, vulnerability of the victim, weapon usage, etc.) can in theory, and sometimes in practice (at least until the court participants can figure out how to game the system to get the result they want), provide similar penalties for offenders similar on the highly restricted variables considered and committing similar offenses. However, too much structuring and eliminating of relevant factors can produce uniformity at the expense of real differences in cases and thus at the expense of justice. Still, a system in which two identical offenders with the same offenses may get probation for one and ten years for another has problems that cut to the essence of equal justice and social legitimacy. Commissions must monitor practices and guidelines closely and well to control for both types of injustice. Mandatory guidelines are often promoted to ensure greater uniformity, but voluntary guidelines, accepted by the judges and well-policed by the commission, can have similar effects without incurring judicial displeasure at loss of discretion or without structuring real differences out of consideration.

The biggest problem with trying to control disparity at sentencing is that, like most of the things we do in criminal justice, we get it bass-ackwards (think about it—we generally wait until someone is a crime victim before the system leaps into action, we pump money into adult offenders when the biggest payoff in crime reduction is with children and juveniles, our drug “war” waits for people to become users, etc., etc., etc.) . Unless you’ve seen something the authors haven’t proving that judges are more biased than police or prosecutors, then waiting until after someone’s been named, arrested, charged, and tried to root out any prejudice in the process against them is very much like your obsession with Brad Pitt or Salma Hayek (we’ll discuss those later in private). Judges might, in fact, be able to correct for a bit of systemic discrimination at sentencing, but they’re essentially food critics writing about a meal that’s already been prepared. Actually, moving to guidelines will likely institutionalize many biases existing at these other levels since they shift the locus of control over the case. So, since so many sentences are based on plea bargains, arrest patterns, charging decisions, and pre-sentence investigation reports, if you want to get at disparity of sentencing treatment, at least start at those points, then see what you have left before you dump it all on judges.

Prediction and control of correctional costs—Correctional costs can be and frequently are the great Hoovers of public budgets. As any economist will smugly tell you, every dollar devoted to one purpose is an opportunity cost (loss) for other uses of that dollar. In expansive economies and budget times, like the late 1990s, there were enough dollars from other places to offset that loss. In restrictive economies and budget times, education, health care, economic development, roads and bridges, and other important public services, with victims and safety issues just as real as in criminal justice (wanna eat that burger after health inspections are cut?), feel the air rushing away as prisons vacuum up every free dollar, and some thought to have been well pinned down.

How communities are to create favorable conditions for the business development and economic growth that stifle much future criminal activity (although, be honest—more economic opportunity also creates more crime targets) when dollars are sucked into prisons has never been made completely clear to those not chanting “Do the crime, do the time.” The more immediate problem from a criminal justice perspective is that those dollars are usually being pulled away from other areas of criminal justice as well. Every dollar spent locking them up and throwing away their key is a dollar unavailable to catch them, prosecute them, and convict them in the first place, not to mention the efforts in juvenile justice where the biggest long-term bang for the buck can be found. If you send one away for twice as long but three more walk free because you couldn’t nail them, what good have you really done public safety and reduction of crime victims? If you increase punishment severity at the expense of punishment certainty, tell us again how that deters anybody?

Faced with demands and duties of fiscal responsibility, policymakers dealing with filling prisons try many short-term fixes—caps on prison populations and early release when caps are exceeded, increased “good time” for those near release, more paroles—all offenders being first-time, non-violent, of course (man, is this a can of worms). Another common, longer-term remedy is to develop sentencing guidelines, or structured sentencing, to identify reasonable risks for alternative, cheaper (although not always that much cheaper) punishments than prison.

Moving to a grid system with mandatory or well-monitored voluntary guidelines can siphon away substantial numbers of offenders who, back in the day, would have gone to prison. And, if past trends of offender intake (new crimes and revocations, always remember the revocations) and offense distribution hold true and allow statistical modeling (from average annual percentage increments to simple regression lines to elaborate stochastic modeling, which, if you don't know what "stochastic" means, you shouldn't try this at home), you can project very closely how many offenders will be affected. Some states require that, based on projections, their commissions have to warn policymakers of coming prison space problems in advance and even make recommendations for how to avert them.

On Planet Reality, however, there are a few problems with this cost-prediction and –control function. For one thing, what if trends don’t hold true? What if the next Len Bias dies from the next innovation in pharmaceuticals and overnight both crime and hysteria make past behavior irrelevant? Think of this—isn’t the whole point of changing policy to change the trends, which then reduces their effectiveness for future prediction until new stats come in? Another one—what makes you think having new sentencing alternatives won’t pull as many people away from low-cost probation as from high-cost prison (“net-widening”)? If you’re a D.A. and you couldn’t justify a prison recommendation for this low-life, wouldn’t some additional new sanctions look good as add-ons to the probation you’re normally left with?

And say trends do continue and you manage to divert only formerly prison-bound. Now you’ve got prison bedspace back under control, maybe even a surplus, especially if you’ve been building a new one or two annually. How do you know that your probation and parole officers won’t see those beds and decide to revoke offenders to prison on technical violations they used to have to put up with when there wasn’t bedspace? This is a major problem as well when projections are used to justify prison expansion, which magically fills up before predicted because, it turns out, “if you build it, they will revoke.”

Finally, on a more epistemological level (sorry, won’t use those words often), say your commission does institute guidelines in an effort to reduce and divert admissions to prison. A couple of years later, sure enough, your prison population is down, or growing at an obviously lower rate. Success of your policy change? Or simply all system participants recognizing the need to cut back on use of prisons, that mindset leading to many other and perhaps less obvious actions than implementing your guidelines. Scientifically, it would be hard to determine, and simply comparing yourself to similar states that didn’t implement guidelines doesn’t solve the problem. (Think about it.)

So, does that mean that you shouldn’t look at commissions and guidelines if you are trying to get or keep your correctional costs under control? No, just that you should be aware of the limitations and alternative interpretations. Guidelines are one of many instruments on your control panel that can be used to monitor and channel sentencing policy, especially if your commission has mastered data collection and reporting. But a lot of the states that “got their intake under control” have nevertheless under-built or over-built prisons based on their projections, and you can still hear the Hoovers droning on in the distance.

More on possible purposes for a commission in the next post.

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