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

In the first part of this post, I addressed concerns of folks who wondered what they could do to better rationalize their state sentencing policy if the commission/guideline concept clearly was just not going to work. (Let me make clear here—I am not saying states shouldn’t do commissions/guidelines, just what they might do if that’s not going to work for them.) In far more words than necessary, I spelled out the importance of sound and timely sentencing data (terms and outcomes) and emphasized development of what academics are calling “sentencing information systems” to inform and enforce transparency in and accountability to selected policy goals. After explaining some ways this could go, I pointed out the continued need for a mechanism to draw policymakers into the process beyond mere hope for champions or the actual White Knight who occasionally does come along.

In this post I’ll put out an idea for a possible mechanism and invite you to take shots at it, on the condition that you improve it or forward something better. What I propose would be a Sentencing Information Authority (SIA). The SIA would oversee the state’s sentencing policy and its sentencing data collection, analysis, and reporting, each of which would be devolved into two separate bodies to make recommendations to the SIA. The policy stuff would receive advisement from a traditional sentencing commission, but one now devoid of policymaking responsibility. Rec’s on the data and research stuff would come from a data and information committee composed of data analysts/IT specialists from state agencies like corrections, state courts, office of administration, legislative staff, and academics trained in corrections and public policy. It could coordinate among agencies and ensure up-to-date hardware and software usage. The split would allow the data function to survive and be preserved should the advisory sentencing commission still prove too nonproductive and/or dysfunctional to be allowed to live.

Who would make up the SIA? There could be two versions, depending on state politics and cooperation. The best would be a nine-person body, with 4 legislators (the usual “2 from each party, 2 from each house”), 4 executive appointees (from possibilities of DAs, defense bar, corrections, academe, victims’ groups, etc.), and the state court administrator to represent the judiciary (I’d say the state chief justice, but this is how it would end up anyway). The SIA would have a small staff to coordinate its two subgroups and to handle public outreach and liaison. The staff could also perform the analysis on the data from the data group and/or contract with outside researchers.

If, however, the politics are such that the legislature and governor cannot abide each other, dooming a body like this, the governor is not option-less. S/he could create a smaller SIA within the executive branch, with membership from the administration, maybe including the chairs of the commission and data subgroup. The state court director could still be invited to participate. This SIA would lack the bipartisan, bi-branch clout and interest of the first, but, depending on the governor and (as mentioned in the first post) the direct ties to his/her budget rec’s, it would still have to be listened to a lot more than most commissions are.

My experience with all three commissions I’ve worked for (still tied for the record!!!) is that legislators picked for commissions become easily frustrated with the meanderings and shenanigans of the other people on the commission. This leads to indifference and, worse, nonparticipation from the very people most needed to give a commission political teeth. Executive branch folks may be a bit more tolerant and stay a few meetings longer, but getting the DOC chief to these meetings is tough, particularly after a few said shenanigans. Thus, policymakers flee, and, by definition, all that’s left are non-policymakers staring at each other. For a supposed policymaking body. (Legal scholar Rachel Barkow has some interesting work on the importance of politicized “non-politicized” commissions.)

An SIA, however, gives policymakers direct control of the commission, the even more important data and information system, and the goals and direction of state sentencing policy. The policymakers still may be indifferent, especially if sentencing/corrections aren’t hot on political agendas at a particular time, but they can have hope of movement in the face of recalcitrant commissioners impressed with their own voices. (Those commissions are ignored by policymakers, who go their own way, anyway, so there’s no loss of “insulation” here.)

(ASIDE: I realize that this is antithetical to the traditional reasons for insulating commissions, but, really, what commission actually controls sentencing policy anywhere in this country? Why don’t they? Because they don’t have enough political influence unless it’s convenient for the policymakers, so why not just cut to the chase? Too often we’ve made simply getting to guidelines and a commission the end itself, not following up on the rational, enlightened policy that’s supposed to result and that, it turns out, doesn’t automatically flow. Even the model guidelines states have seen their work warped by time, by initiatives (WA, OR), or by mandatory legislation (MN, which now sports one of the highest incarceration rate growths in the country). Incorporating “politics” into the process in an institutionalized form from the start may, may, actually serve to improve commission “say” or at least achievement of the sentencing policy goals we want. Now back to your regularly scheduled programming.)

The SIA can set the state’s policy goals and direct commission and data subgroups specifically toward them. They can even select and remove obstacles to goal achievement from both groups. Most importantly, the SIA would be a higher profile group than any sentencing commission I know of and would be subject to greater attention and accountability by the media, advocacy groups, policy students, and the attentive public (both of them).

Too often, our focus has been on the very few commissions with demonstrated influence and not enough on the stuck ones and how to get them unstuck. SIAs would address that problem. A high-profile SIA could knock heads and take names when commissioners stall in pursuit of their own or constituency agendas, when the commissions plateau at the “all we do is report average sentences” stage, when agencies are less than forthcoming in providing data and information, when serious sentencing policy has to be made or when unserious sentencing policy is about to be. SIAs wouldn’t necessarily kill the idea or practice of sentencing commissions. A well-functioning commission would actually have the institutionalized champions it always needs (I’m not saying SIA members would be institutionalized). And the data function so important to informing effective policy would be protected and ongoing even if the commission itself is disregarded or dismembered (figuratively).

Okay, there it is. I’ve put possible solutions to the heartfelt lament of my shy, demure correspondent about her state’s failure to make the sentencing commission concept work. Her situation is not uncommon, just usually overlooked as we press the case for commissions. But those like her, who have tried commissions and watched them fail (perhaps more than once) or considered them and were not overwhelmed by their actual successes, need other options. The states with successful commissions had things come together, political climate, extraordinary leadership, plain luck, that other states haven’t. Telling my correspondent to keep trying that commission/guidelines thing over and over and over isn’t the definition of helpful. So let’s try to send her other rescue lines.

Have at what I’ve said. Holes in any of this? Of course. I didn’t talk about risk assessment modeling at all. And blood pressures went up galore when I started talking about how commissions protected from political power should be overridden in favor of bodies with it. I may post anonymously just to say how impossible this all is. But is it? You have better, wise guy? Let’s hear it. Don’t just shoot at me, though. Tell me, and her, what might get more done. Maybe we can even coax Ms. Shy-and-Demure out of hiding.

Take your shots. We’re ready.