Part III of a series. Part II began discussion of the reasons readers might want to start a sentencing commission. For earlier parts check the links on the right.
Control judges—Note that we don’t say “control judicial discretion,” as is usual. That’s putting a dress on a pig. The point of this function of commissions and even of voluntary guidelines is to send a statement to judges (usually by power-seeking executives or legislators) that “we don’t like your sentences, we don’t trust you to police and improve yourselves, and we don’t want you to step outside this box.” Some systems, of course, are more devoted to this cause (see Sentencing Commission, Federal, pre-Booker, and maybe post), but even voluntary systems are saying this, with a bit more of a smile and even tolerance. Even judges who support commissions and guidelines will overtly admit that some of their colleagues give “unique” sentences (the speakers themselves, however, are always models of sentencing practice).
In fact, when sentences show the disparity and nonuniformity we’ve noted across a state or seem to be the result of the nature of the judge’s day or age to that point, it is clear that questions about the need to control will arise. The authors’ experiences with judges, on the whole, have been very positive, but those called imperious, arbitrary, and weird do exist in too great numbers. And, like all professions, the judiciary is loath to police its members, partly out of respect for each other, partly out of the fear of what admission that they could be wrong might lead to. Ideally, judges would create their own guidelines, monitor their data, inform and educate their members, police the outliers, and minimize the disparity and any outlandishness that might be occurring. Ideally, there would be no crimes to try, and we wouldn’t need judges at all.
So, assuming there are defensible reasons to restrain judicial sentencing, at least in part, how far do you go and who should actually do it? Commissions and guidelines developed and supported by respected judges are your best bet. They don’t guarantee judicial acceptance, but a lack of meaningful judicial input leads to destructive confrontations and dysfunctional systems like the federal one that has satirized just and reasoned sentencing. Yes, some judges may protest that they’re being asked to put on their own velvet handcuffs, but, if it’s gotten to the point in your state that you’re going to do commissions and guidelines, the handcuffs will be velvet and self-administered or steel and rigidly imposed.
Judges have to understand in those circumstances that cooperation, strategically given and maintained, can lead to greater flexibility and discretion and can avert not just mandatory guidelines but mandatory sentences as a whole. Guidelines themselves have not been ruled unconstitutional. No matter how much guidelines insert executive and legislative prerogatives into the judicial function and separation of powers, a very legitimate fear and complaint of judges, your judiciary will lose the political battle if its warriors want to take it all the way. Martyrs are spoken well of sometimes in history, but self-sacrifice won’t temper the here and now. Politically astute judges do exist. In my experience, they’re rare, but they do. Find them and work with them to get the best deal for everyone.
Improve sentencing data and knowledge—Big Brother may happen. But not soon. Not if current criminal justice data are any evidence. The old saying has it that people should never see their laws or sausages being made—add criminal justice data to that list.
Here’s why. Think of all the reported crimes and the level of training, experience, education, and longevity of those reporting and those recording the reports. Now factor in different procedures, formats, definitions, and, these days, hardware and software, and calculate how well systems will talk to or compare to each other. Now think about the original purposes for which those data were collected. Usually managerial, usually for internal consumption only. Now stir in outsiders—policymakers, news media, advocacy groups—who want a statistical picture of their particular criminal justice concern. Will they define terms, concepts, figures the same way? Will they understand the parameters within which the numbers have been gathered, the gaps and guesses in many of the aggregated values given? Will their reports and conclusions based on those data parallel what the practitioners would have found and interpreted?
Pity the poor policymaker. Consider, as a common example, “recidivism.” Presumably knowing how often offenders “corrected” by our criminal justice process fail and return to that system is a major step toward understanding the effectiveness of that process in protecting public safety. But what do we mean by “failure,” or even “return”? Do we judge failure as technical violations of probation or parole conditions or as new offenses? If new offenses, do we judge by rearrest, reconviction, return to prison as opposed to probation or alternative sentences? What time frame do we use? One year? Three? Five? Ten? Lifetime? Given all the possible answers, depending on the goals for the use of the data, it’s conceivable to have dozens of versions of “recidivism” up for debate before anyone can even think of moving on to actual policymaking.
“Time served” (another concept popular with policymakers) for murder is usually low, just a few years, which inevitably leads to howls by Bizzaro World brainiacs. Why is it low? Because not all that many murderers get out of prison before they die, intentionally or not. The ones who do are usually released by pardons or commutations, sometimes proof of innocence. These shorter sentences averaged together make for less than what we “expect” a murderer to serve. Hence, the howls, which nevertheless seldom go down proportionately to the rationality of this answer.
And recidivism and time served aren’t the only conceptual problem children. Policymakers rarely make clear what this “public safety” they demand is. No crime at all? Fearlessness in one’s own neighborhood? (They had that in the Soviet Union. No, thank you.) Immediate response to offenses that do occur? How about “crime” itself? Is it best measured by crime rates (those crimes reported among all the ones that go unreported), arrests (dependent on victim calls and law enforcement activity), victim surveys (self-reports by people unaware they were victimized or afraid it might happen again), law enforcement expenditures (more or fewer dollars when crime is up or when crime is down?), public polls of perceived crime (on tv or in reality?)? One of the sad truths of law enforcement is that a police department or sheriff’s office known for real competence will get more crime reports than one known to be staffed by Moe, Curly, and Larry, and thus have higher crime rates. (So move to a town with really HIGH crime rates.)
So. What do you do? How do you decide on common definitions, standardized collection and reporting, nonpartisan research and interpretation? One way is to empanel representatives of the entire process who will oversee data development and work for consensus on its application and promulgation. A panel that would look amazingly like the usual membership of a sentencing commission. Granted, a commission can’t solve all the problems, but it certainly can, as an observer made objective by its multiple members, develop its own data base as a foundation for policy related in any way to sentencing and as a comparison with the data of more partisan agencies more directly affected by data and their interpretation and reporting. While this function is usually only secondarily promoted as a reason for having a commission, in truth, it may be as important as anything a commission does.
Which means you should take care to protect the nonpartisan cast of this function. Individual commissioners with partisan agendas are not above trying to tamper with analysts or to challenge their integrity if they do not conform to that commissioner’s selective use and interpretation of data. They are also known to seek external counter-data and –analysis to undermine a neutral system not going their way. While staff have some responsibility for demonstrating their trustworthiness and competency, it is incumbent on other commissioners, especially the chair, to defend their staff unless and until they are shown to abuse that trust. Commissioners who taint the staff’s analysis for political purposes ultimately weaken the commission itself. Commissioners must hire top-flight analysts, ask intelligent questions about their work, make clear where more work is needed, but also fight off “my way or highway” commissioners who, through active or passive aggression, can take everyone down if tolerance of their misbehavior overcomes sense. (This isn’t the last you’ll hear of this.)
But it's the last you'll hear in this part. Part IV soon.