Thursday, August 24, 2006

So You Want to Start a Sentencing Commission? Part VIII

Part VIII of a series. The previous parts dealt with how to create a good commission. These next two parts discuss the structure of a good commission.

Commission Organization and Structure

At the top of an organization chart for any commission is the constitutional body in which it is housed, the legislature, executive, or courts. Even “independent” commissions have to be placed somewhere in the executive budget and are ultimately beholden to their funders. Individual commissioners frequently overlook this in their agendas, but commissions as a whole do so at their own risk. That said, being a composite body with all three branches represented, a commission must also assert its independence, as noted earlier, to be of value even to those funders. A frequently delicate line, but an unavoidable one.

More concretely, the commission chair is clearly at the top of the commission’s internal chart. Chairs are rarely given extensive power in commission enabling legislation, although some take it by Louis XIV precedent. In Maryland, they were legally given exclusive power over staff; in Wisconsin, they were not. Depending on how frequently a commission meets (or, more specifically, requires action), the chair may serve as an interim decision-maker on matters that can’t wait until the next meeting. This can sometimes, of course, be contentious, but few organizations have ever found a better way around the problem.

In light of this paucity of thought to organizational matters in enabling legislation, some commissions adopt by-laws to outline things such as vice-chairs, permanent (standing) and ad hoc committees, the authority to call special meetings, disciplining absent members, etc. Other commissions like the ambiguity. By-laws help staff with their formal delineation of procedure, but staff sometimes like the ambiguity as well. By-laws probably aren’t as important in a commission’s early days when the members are finding workable patterns for action through trial and error fitting their situations and contexts. Once these informal patterns are established, those commissions may feel that formalizing them will impede rather than enhance performance. The problem comes when, perhaps through a change of administration and some membership, the commission undergoes substantial transformation. Established by-laws, based on effective practice, will prevent these “new” commissions from having to reinvent several wheels.

The number of meetings that the commission should hold annually depends on several factors. In its beginning, commissioners may want to meet more regularly, perhaps biweekly or monthly. This can raise havoc with commissioners’ schedules, of course, but it allows the commission a chance to focus, establish routines and priorities, and direct staff as to immediate wants and needs. After a few months, as staff begins assigned projects and committee work has started (and commissioners sicken of each other), the number of meetings will likely be cut back. Some states require a certain number of meetings per year (four in Maryland, including an annual meeting for direct public input, for example) while others leave it to the commissioners. No one to our knowledge has gone to jail for failure to have the mandated number of meetings, however, and it is not clear what the sentencing guidelines for that offense would be.

Commissions are strongly advised to establish permanent standing committees and to get them to work soon. If run properly, committees take the breadth of functions assigned to the commission and parcel them out for intensive consideration and later recommendation for action by the full commission. If the commission refuses to accept committee recommendations, however, frequently because of “my way” commissioners not on the committee, then much time and effort will be wasted recapitulating in the full body what the committee did. I strongly recommend usual deference to the committee work except in extraordinary circumstances that I really can’t think of right now. What the committees should be, of course, may vary from commission to commission, but, since many functions are the same (oversight of guidelines, collection and reporting of sentencing data, dealing with the public, media, and policymakers), many of the committees are similar. Here are a few you will likely need to consider (perhaps with different names).

Sentencing Guidelines
If you have a structured sentencing system with sentencing matrices or grids, offenses need to be classified into similar types (usually by nature of offense—violent, property, drug, sex, traffic, whatever--and by length and/or amount of statutory penalty), offenders need to be categorized (first-time, habitual, legislated penalty enhancers, etc.), and other necessary data and information need to be determined (victim participation in trial, type of counsel and disposition, demographics, reasons for guideline departures, and so on). If you are starting from scratch, this can mean complete examination and classification of your state’s criminal code, formatting your statistical data system, and constant revision as feedback and new legislated offenses and penalties each year become known. Commissions can bog down forever in minutia over these issues. It’s better to have a standing committee to get the grunt work done first.

It will be tempting to assign this work to legal practitioners (judge, prosecutor, defender), but you should consider a few others to avoid the “forest-tree” problem. And, the members should come from different parts of the state, if possible, to avoid domination of views from practitioners in one part, especially if that “part” conspicuously sentences differently. Further, the committee should be held to tough, tight timetables, or the arcane subjects could force even the smaller group into paralysis by analysis and seduction by one’s own voice. The conversations in these committees can quickly turn into “I had a case once . . ." that will take hours to be finished. A whole afternoon wasted. (The same thing can happen when the full commission debates the committee’s recommendations, so the chair will have to ride herd closely.) Keep in mind, these committees do yeoman’s work for commissions, especially at the start, and should be carefully constructed to get maximum work done in the time available.

Other committees and considerations coming next.

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