Monday, August 21, 2006

So You Want to Start a Sentencng Commission? Part V

Part V of a series. The last part finished the section on the reasons to have a sentencing commission.

What Do You Need for a Good Commission?

Clearly the commission as a whole is most important. A good one usually, but not always (due to politics), will consist of representatives across the state’s criminal justice process and political parties. This means, as a rule:

Judges who actually try cases and sentence, although an appellate judge is often good if you can find one willing and with the time
Legislators, at least one from each party, but only ones with real influence, such as committee or subcommittee chairs or ranking minority members, not bloviators or about-to-be-retireds
At least one prosecutor and, preferably, someone from your Attorney General’s office involved in criminal justice appellate work
At least one defense attorney, either public defender or private bar (although the latter may have more problems scheduling—the former are usually ordered to attend to prevent prosecutor mischief, if nothing else)
Prison and jail officials, from your state corrections folks and from county facilities, to inhale sharply when proposals to double existing penalties or to make half the criminal code mandatory-minimums are offered (and to speak to issues of costs, housing, treatment, etc.)
At least one law enforcement official, either state or local, ostensibly to give insight as to criminal behavior, policing strategies that affect what offenders get arrested for what offenses, and/or available data (and to tip the commission to “red flags” in its proposals from the standpoint of law enforcement)
At least one victims’ representative, preferably of a broad constituency of victims rather than specific subgroups (such as domestic violence, child abuse, murder victims, etc.) and of a broad perspective who realize that costing out vengeance usually depletes the resources necessary to prevent more victims in the future.

Assuming two judges and two legislators minimum, plus a chairperson, this gives you eleven commissioners, a decent size to manage. Going above this number risks consensus with each additional appointment and potentially increases logistical and informational costs. However, few commissions have limited themselves to eleven, more for political than efficiency reasons, so let’s look at who else you can add.

Many commissions are required to have “laypeople,” general public representatives to provide the public’s perspective. This actually is usually to give the governor, the attorney general, or chief justice more appointees and, in theory, more influence. Experience has tended to find these “public” members turning out to be more judges, former prosecutors, and others in the criminal justice process. Commissions are more likely to benefit from these “at-large” appointees if they actually do represent external views, such as an academic with knowledge of research on sentencing and criminal justice policy in general, actual treatment providers, offenders’ families (such as from Families Against Mandatory Minimums), and/or the business community (who are usually quite good at linking expenses to actual rather than dreamed-of-in-my-dogma payoffs). Retired news media types might also be a nice group to tap.

The problem with so many diverse appointees, of course, is that commissions can end up all trees (of different types) and no forest. The diversity brings expertise and networks as well as varied perspectives, but it may also bring paralysis if the “trees” don’t get along or if each “tree” defers excessively to fellow trees’ parochial perspectives. This is where effective leadership, from the chairperson and/or the executive director, is often the difference between effectiveness/impact and drift/irrelevance.

Consensus for the Public Interest
Which leads us to probably the most important factor in a good commission once composition is successfully handled—a commitment to consensus and to pursuit of overall public welfare in policy versus pursuit of particular agendas of particular parties or constituencies. Although commissions are selected by constituency groups and must present those groups’ perspectives, they must, repeat MUST, subordinate those groups’ interests to the broader interests of reaching consensual sentencing policy. This does NOT mean selling out because an effective commission recognizes and balances the interests of the various constituencies represented on it. And commissioners who always “lose” on their constituency’s positions probably should raise hell and even quit, unless their positions are so consistently hard-line that they themselves are the problem. But, at the end of the day, if the commission carefully apportions “wins” and “losses” with an eye ultimately to best public policy, commissioners cannot make “total victory” for their causes and constituencies the end all of their participation. And, they cannot take defeats outside the commission for battle elsewhere. It’s a careful and ambiguous line to follow, as it is for any work group composed of different elements, but the criterion should be policy which directs criminal punishments to meet the commission’s determined purpose(s) at no more cost to taxpayers than absolutely necessary.

One of the best ways to develop or test consensus quickly (and to root out the hard-liners early) is to have the commission write its own mission statement. Yes, too often mission statements have that “knowledge is good” quality we see on college web sites, but, if accompanied with actual objectives and products directly linked to the statement, they can force commissions early on to deal with many of the questions about purpose that we addressed before. Plus, the objectives and products allow accountability and charting of progress that prevent the wandering and paralysis that large groups of high status professionals from different backgrounds can blow their way into.

You don’t necessarily need to go through a full strategic planning session to get a statement, objectives, and products; any competent staff can throw a draft together to frame commission consideration. It may cause argument and disruption early on for a new commission, and many might think it better to let commissioners get to know and work with each other first to offset later contention. But that delay rarely overcomes stalwart fighters for their “causes,” who might in fact use the “getting to know each other” to create an environment in which getting along overrides serious resistance to the fighters’ preemption of the commission’s public purpose. You should always beware of those who prey on personal and professional civility to pursue their or stall the commission’s agenda.

And, without a mission statement, staff is left guideless as to priorities and what should be triaged, perhaps wasting significant time pursuing programs, proposals, etc., that get shot down later in disagreements that could have been expressed earlier in the commission. Admittedly, it’s easier and less confrontational to put off addressing and cementing the commission’s purpose(s), but it’s almost always wishful thinking to believe differences will be magically resolved by delay. At some point, if you have commissioners committed to their own agendas and not the public’s, then the conflict will come out and potentially paralyze and destroy. And don’t forget that you’re just talking about a mission statement, by definition a BROAD statement of purpose. If you have a commission that can’t even agree on a mission statement, then you’re in trouble from the start. And its opponents will be your “my way, highway” people on everything else of real importance to the commission.

Commission Chairperson
Much can be told about the level of commitment and support that a governor is giving a sentencing commission by whom s/he appoints to be its chair. (The same obviously holds for those named by some other appointing authority.) Because their cooperation is vital for legitimacy and efficient operation, judges (active or retired, if still ambulatory) make good choices as a sign of deference and as a way to shift bad outcomes onto the judiciary. Legislators or upper-level executive staff are not so good, unless they are long-term and bring real power to the position, since they tend to install a political perspective that may later be a liability. It’s hard to think of any among the other usual appointees listed earlier who would have the legitimacy and political pull in sentencing policy to be a good choice. However, the particular nature of your state’s politics may produce such a candidate. Maybe a very well-known and highly regarded scholar. Bottom line—the choice has to be interested and political, knowledgeable and diplomatic, and a respected player in the process. (If no superior choices are available, just rotate the position among existing commissioners. That way you wouldn’t be stuck with a lunatic too long.)

The chair is the point person for the leadership both internal and external that will be needed for commission success. That person should have and devote the time necessary to fight the battles, rally the troops, and convince the public. Of course, the people with those qualities are usually somewhat busy elsewhere. Nevertheless, getting someone without fire or drive, no matter how impressive the resume, will start your commission yards behind in the race. The chair needs to support and defend the staff from political and other unwarranted criticism and buffer them from efforts at undue influence. If the commission is in consensus, a chair with good mediating skills is best, to sort out the disagreements over details. If the commission is obstructed by the “my way” types, the chair needs to roll them. I’ve worked for chairs who did and who didn’t. The one who did had a relatively successful commission; the ones who didn’t, didn’t.

Let’s be clear about this because the fate of your whole commission can hang on it: if a constituency or its representatives on the commission threaten to undermine the commission or deny it and its initiatives support, the chair needs to move the commission forward to its goals anyway. Let those who try to block it be left on the outside looking in. I don’t know many constituent groups that won’t be back at the table quickly despite previous threats if the commission through its chair sticks to its guns. If they take the battle to the legislature or governor, then you’ll find out quickly whether the commission will be a policy player or not. If the commission loses, scrap it. It’s a wasteful and useless appendage. A chair who simply tries to ameliorate dissent by avoiding tough issues and actions leads a commission that will never get anything meaningful done. No commission ever pleases everyone. Waiting for that pleasure to happen is a recipe for inaction and failure.

Most commission issues won’t come to that. Constituent groups don’t fight over data collection or statistical reports, as a rule, which have become the major things commissions do. But data collection and reporting can be done by other agencies, like state court offices and/or DOCs, if that’s all that’s needed. Commissions are supposed to play policy roles, and they need to have strong, effective voices that are heeded as much as or more than the those of other constituencies. If you go back to the successes of state commissions such as MN or NC, you’ll find an effective chair will be that voice.

Directors and staff in Part VI

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