What If a Commission Won't Work in Your State? Part I

Part I of a two-part series.

A shy and demure correspondent won’t post but wants some discussion about what to do if your state needs better control of its sentencing policy for fiscal, proportionality, or other reasons but either can’t get a commission going or one(s) it’s tried sink quickly into moribund molasses (which isn’t that tasty, either). In sentencing, we do tend to focus primarily on the states with working commissions/guidelines, like the only judiciary worth studying is the federal. So let’s move from that a bit and throw some ideas out there to see if we can generate some discussion for her.

It seems to me that effective sentencing policy requires transparency and accountability. That doesn’t mean talk-radio transparency and accountability, but, for policy purposes, the ability to review clearly what is done in the aggregate (not in individual cases or judges) and to evaluate whether the results are the best possible for the selected goals. If you are trying to max out the impact of your dollars, are the sentences given in your state the best to do that? If unbiased sentences are your goal, is their distribution reasonable? If crime control is predominant, do these sentences get the job done better than in states with different sentencing patterns? Of course I’m simplifying, as most state sentencing policy will be a mix of these and other goals, but the principles of transparency and accountability will be the same.

Underlying all this will be a good data system, one that provides information to policymakers about what’s happening and to practitioners about what sentences seem to best achieve the selected goals. One of the main reasons sentencing commissions are valuable is their standing as nonpartisan repositories of data like these, analyzed and reported professionally, untainted by vested bureaucratic interests, unblown by the political winds that can warp out all value. Which means that, in my view anyway, all states should focus on creation of this data collection/analysis capacity, whether they have a commission or not. So, if you don’t or can’t have an effective commission, at least develop and nurture your sentencing data.

Where and how can that be done?

One place I recommend, maybe because I started my professional career in one, is the state budget office. In every such abode, there exists a section/unit/cubicle which has responsibility for recommending expenditures (pay raises, equipment purchases, new facilities) for courts and corrections, coincidentally the two locations with the data you need most. Neither are traditionally known for generosity with their numbers, but both must have annual budget increases each year. See where I’m going?

The problem is that most budget offices don’t see themselves with this kind of direct data collection/analysis function (you’re talking to one of the few people in human history to have done a dissertation on state budget office functioning . . . goosebumps, right?). They’d have to get over it and hire analysts with the expressed duty of maintaining data and evaluating sentencing effectiveness at stated goals. If the executive branch folks aren’t up to it, then maybe, if the legislature has a research or audit bureau, it could do it. Or cooperate with the budget office people. Whatever. The point is that those who have a say over the dollars going to the agencies which can supply needed sentencing data have a level of control even commissions don’t have. (It’s not an accident that VA’s successful “voluntary” guidelines occur in a state where the legislature picks the judges. In reality, this may make theirs the most “prescriptive” of all systems.) The danger, of course, is that executive and/or legislative offices are subject to sometimes extreme and inconsistent political winds that can compromise their integrity and their results’. (Got to work in one of those offices, way back when.) Unless that can be managed, this idea therefore has problems. Not insurmountable, but problems.

So, where else? How about someplace buffered (in part) from those winds? Contract with an existing university institute or center specializing in policy analysis, or create one if your state lacks. Tie court and correctional funding to successful provision of necessary data. (Do NOT pull the old “all state agencies shall cooperate in provision of data and information” crap you see stuck pro forma into most legislation like this. It’s toothless.) Again, the goal is to develop a body of knowledge against which to compare actual practice and to highlight who’s getting it right and who’s not.

These are not my ideas. (I can hear Steve Chanenson, Ronald Wright, Marc Miller, Judge Marcus in Portland all screaming copyright violation as I type.) I’ve just outlined the basics of a “sentencing information system,” which really does hold promise as a second round of sentencing reform, especially for states wanting to avoid the problems associated with guidelines and failed or failing commissions. The last National Association of Sentencing Commissions conference spelled out many of their thoughts, and other presenters demonstrated the software potential of these systems. It’s there, and it’s viable. It’s just waiting for some state to take the dare.

The biggest problem for SIS and commissions, however, is not the collecting, analyzing, and reporting of data to inform sentencing and sentencing policy to achieve desired goals. It’s the audience that will receive all this when completed. If data fall in a forest and no one is around to hear . . . ? What I’ve outlined above doesn’t get at Wendy Kaminer’s wonderful, realist line, “Knowledge isn’t power in criminal justice debates; knowledge is irrelevant.” So how do we draw the policymakers in, rather than just hope you run across some with interest and intelligence? What’s their role in this if there’s no commission? What if you’ve so insulated the commission from political influence there’s no point in politicians participating (hence, the data in the forest)?

Ah, that’s another post.