Part XII of a series. In this conclusion of "So You Want to Start a Sentencing Commission?" we discuss why your commission will fail. That's right, "will fail." Sound fun? Thanks for staying with us for the whole thing. Send us any comments or questions that we still need to address.
Why Your Commission Will Fail
Okay, you’ve gotten this far. You’re as well prepared for starting a successful commission as most complete novices could be. And, by tapping into the commission “fraternity,” you’ll have expertise and experience at your call virtually any time. Your odds of establishing a long-term agency are actually pretty good. But not 100%. Your commission could still fail, in a year or a decade.
Why? Your state may be creative in how it does it, but some possible reasons for failure are predictable (and historical). We’ve mentioned them in passing for the most part, but let’s systematize them so you’ll have no defense for not being prepared.
* The commission failed to establish cooperative, systematic relationships and lost the resulting battle over turf and/or funding.
* It basically sat there, dithering year after year, not accomplishing much, happily classifying new offenses, issuing an innocuous report or two a year, not really having much of an impact. In other words, it failed to establish meaningful legitimacy and credibility in state policy. Come tough time or a periodic fad for “efficiency,” the commission gets reexamined, the examiners say “Wuhhh?,” and, snip, it becomes easy proof of the tough work keeping democracy accountable.
* It got too tied to a particular faction in a policy controversy, politicizing itself and losing whatever legitimacy and credibility it had built up. As noted before, the faction may even be the winner in the controversy, but it may need to (re)establish its own legitimacy and credibility. Think it will hold tightly to a compromised commission?
* It remained too neutral in a policy controversy, aggravating every side that wanted its support (see Cambodia, 1970s). Yes, it’s damned if you do, damned if you don’t. It’s also reality and reaffirms the need for politically astute chairs and members, who may nevertheless not be enough.
* It proposed or recommended sentencing policy that ran afoul of public and/or demagogic wants and needs. Sometimes that famous legitimacy/credibility will provide enough surplus for survival, but good commissions have been washed aside in the face of public panic attacks.
* It was created by an administration or party in power that is no longer there. The newcomers may lack the same interest or investment, and, ironically, if the commission has been a conspicuous success of a particularly hated former administration, it may be deliberately removed, like a splinter or a wart. Reaching out to others in advance can broaden a constituency and is strongly recommended. But don’t count on it to overcome the potential here. If the commission can get through a couple of new administrations or legislative party changes, it’s probably good to go, but don’t buy stationery in bulk.
* And then, one day, out of the blue, without word or warning, your commission may hear that a provision slipped into an authorization or budget bill on the last day passed without discussion and abolished your commission or left it without funding. Why did this happen? Your commission hacked off the wrong individual. The governor maybe, or his chief of staff, a legislative chair, maybe even a legislator on your own commission who got voted down once too often. Maybe your prison population projection shot down a favored bill, maybe the wrong judge got defended. Maybe your executive director rubbed too many people the wrong way. Maybe it was Tuesday. You may never know. All this speaks to the following: Take nothing for granted, ever. Pay attention and be prepared to respond fast. Will that save the commission? Did it save the commissions that suffered the lunacy listed above? Some it did, some it didn’t. But it does give you a better chance.
Sentencing commissions have been around long enough now to have established themselves as part of the state government and criminal justice landscape. Not having one doesn’t stop a state from having good policy and an effective process, but having one brings more light and knowledge to both. As we noted above, because of this dispensability, commissions often live on an edge of survival, but enough history exists to learn from. You should be free to create your own particular mistakes now. Good luck to you and remember—you will be part of a fraternity that helps each other. Anything helpful you got from this, please pay it forward.