So You Want to Start a Sentencing Commission? Part X

Part X of a series. The next two parts will address potential concerns and issues that you may have as you develop and institute your sentencing commission.

Concerns and Issues

The following is a series of “quick hits” at things that you will or should have to consider as you develop your commission’s functions. They aren’t in any particular order of importance or need. If they aren’t relevant to your commission right now, don’t worry about them (just be aware that they could pop up, though). But, as you organize and structure, it may help you to have a ready-made agenda like this from people who have been there before.

Ethics requirements—States generally have ethics commissions to handle questions of propriety about campaign contributions to and financial relationships of holders of public office with significant influence over public policy. While you may protest about your commission having significant influence over public policy, the strangely consistently humorless ethics officials believe it does. Therefore, they will require your commissioners to meet state ethics requirements. Since many if not most of your commissioners are already public officials, the requirements will affect only a few, but find out who they are and get the proper paperwork to them in time to avoid whatever fines they will otherwise have to pay for their usually thankless service.

Cooperation with other agencies—Broadly speaking, since you will find data and information from other related agencies useful and possible grants through partnerships with them, you should be willing to cooperate with them toward (legal) ends they may have. Turf wars are not unknown, however, especially as agencies react to this new commission on the block. While it won’t be true of all, be prepared for opposition from judges protecting judicial discretion and pomposity, corrections officials controlling (with varying success) their resources and bedspace, prosecutors and law enforcement suspecting liberalizing of sentences, victims groups fearing being shut out by an unhearing, mechanical process, defense attorneys and offenders groups suspecting conservatizing of sentences, criminal justice research agencies seeing a statistical center potentially competing for attention and funding, etc. In other words, from practically everyone in the process.

Since commissions have representation from virtually everyone, they make a logical place for centralization of much data and analysis (although limited in most states by staff size). That’s both a virtue and a threat. Therefore, commissions and their staffs must prioritize their activities and make them known through their commission representatives. This will signal when cooperation is to be sought and not and on what grounds. Don’t make too much of this, though. Usually cooperation is forthcoming, and noncooperation is usually passively aggressive, not something that involves bloodletting or, worse, headlines.

Listservs—One of the easiest ways to facilitate communication on a commission is to create an e-mail listserv hooking up all members. The problem is that it can be tempting to do public business this way (discuss issues, take votes, etc.). This generally violates your state’s public information laws. So, to avoid problems, use listservs primarily as a means for staff to coordinate and disseminate information and materials (agendas, articles, notices). If you have things to distribute, send them to staff to get out. And never, never, never hit “reply all.”

Worksheets—Theoretically, given a court system with good computerized records of sentences and their delivery and a corrections system with good computerized records of time served and how, a sentencing data system can be built through a merger of the relevant information from each system. Now compute in hardware and software of various ages, intentions, and compatibilities; data designed for management, not policy, purposes; and a bureaucratic disinclination to let outsiders know “more than they need to” about how each system operates. Still theoretically possible? And this is assuming that each system exists in the real world, and important records aren’t still on 3 X 5 cards somewhere. If you’re fortunate enough to have 21st century, cooperative, compatible systems, you might get along without worksheets about the sentences filled out at the time of sentencing and sent to the commission for data entry, all umpteen thousand cases a year. On the other hand, if you are not lucky, then you’ll need to either design a worksheet or pull in court sentencing documents and DOC documents for in-house coding prior to data entry.

Worksheets will need case numbers, names (all those used by the offender if possible), Social Security numbers (all those used by the offender if possible), dates of birth (all those . . . you get the idea), and other demographics. You may run into trouble on racial data (recorded by face-to-face observation by the recording agent or by self-reporting by the offender—both with major potential problems) since race and sentence are not to be formally linked. And tracking “Hispanic/Latino” apart from “black” and “white” is a giant headache, as is mixed race. Still, if your commission was formed in part to deal with racial disparity in sentencing, you have to get these data and just acknowledge the difficulties in the resulting reports.

Obviously you will need the basic information about the case(s): sentences broken down by all the particulars (including whether they are concurrent or consecutive to other sentences), all the factors required by the legislature or the commission to enhance the sentence (weapon use, vulnerable victim, amount stolen or of drug, etc.), the type of disposition process (trial by judge or jury, type of plea, type of defense counsel, etc.), a location for calculation of the applicable recommended guideline and actual sentence, with space for reasons for judicial departures. Some states also include space for information about victim knowledge about and participation in the process.

Who all gets copies will be up to your state, but obviously one will get sent to your commission. If not automated, you will need significant staff support for data entry, but the programs can be built on a small multitude of software systems. Storage is also a major consideration, including adequate security, space, and legal requirements. Three years is pretty common for public documents to be kept, but be sure to find out before you start shredding or burning. (Shredding is generally the method preferred by law and fire marshals, so find a reputable firm and get ready to pay.)

At some point in our increasingly paperless world, all worksheet information will be sent electronically directly to the commission and its data base, and more jobs will be downsized. Since commissions deal with aggregate numbers and not individual cases, this probably won’t be a bad thing. Until that giant magnetic storm goes over commission offices.

Last couple of worksheet points. Accurate completion of worksheets requires a staff “helpline,” a manual, and regular training (aka, more staff). Much can be put online, and videos and online training can be illustrative at relatively low cost. The commission should also decide how aggressively to pursue worksheet errors. The pursuit takes up valuable time, aggravates the judges, and, in the aggregate, is not likely to impact resulting data greatly (except for those 2000-year sentences). On the other hand, no pursuit may indicate a lack of concern. Clearly yet another job for the Sentencing Guidelines Committee.

Prison population projections—An important value of structured sentencing is your ability to use it to estimate future needs for prison bedspace. If you estimate well the offender intake data and fit each offender properly to his/her sentence cell in the grid and then figure an average for all offenders in that cell, and if you know well the time to be served, you will be able to predict how long incoming offenders each year will serve in prison. Added to the time to be served of your initial “stock” population already in prison and of the predicted number of offenders revoked from probation or parole, you will be able to project how many prison beds you will need each year. And how many new prisons. And how changes in sentences affecting the guidelines’ cells in the grid will change bedspace and prison needs. Policymakers with an eye to not spending more than they have to will find this useful information. Policymakers with an eye to reelection above all may see their “get tough” legislation suddenly questioned and find this information a subversive plot and the commission suddenly dispensable.

Clearly, these kinds of projections can make commissions vital players in effective sentencing policy and fiscal impact analyses, and, if that’s what your commission is there for, go for it. Know these few things, however. You won’t be the only game in town, and folks who don’t like your projections may wheel out their “equal and opposite Ph.D.’s” with projections that magically fit what these folks want to do. And, you better be pretty accurate. More than one or two really bad projections will destroy commission credibility, perhaps on more than projections. Plus, remember “if you build it, they will revoke”—that is, projections of bedspace needs leading to more prison-building within a given time frame may lead to increased probation and parole revocations as space becomes available, filling the beds faster than projected. And, potentially worst of all, the technical wizardry and bells and whistles that go into projections can give policymakers a false sense of confidence in results. Staff may be asked for projections ten or even twenty years into the future. Weathermen have better luck with seven day forecasts. So, while projections can be very empowering for commissions, they truly are a “be careful what you wish for” situation. Some states literally create triangulated projections using the predictions of their commissions, DOCs, state budget office, and others. Not as empowering, and controversial when someone goes off on their own, but probably safer politically and statistically.

In part XI we will finish Concerns and Issues. Don't give up on us. We only have a couple of more parts to go after that.