Thursday, August 10, 2006

What Would Marvin Do?

As a follow-up to the post on the recent NCSC opinion surveys presented at the NASC, I'd like to focus briefly on just one of the findings and get to more details about sentencing attitudes later. Judge Roger Warren of NCSC did the presenting and noted that, in the survey of state supreme court chief judges, the respondents placed the least priority among selected choices on promoting sentencing commissions and guidelines. He explained this as, basically, states with commissions/guidelines being satisfied and those without pretty much considering them non-issues.

I think there's another interpretation--the justices place a low priority on commissions and guidelines. I've worked for commissions in 3 states (currently tied for the record with two others) and, through the actions if not their words, the chief justices there clearly placed low priority. They knew the talk, but I saw their walk (in MD, the talk and walk were actually the same).

I understand Judge Warren's temporizing at a conference of commission/guidelines types. But, as an old poli sci tpye, I was reminded of how, in the '70s and '80s, our discipline wrote off non-voting as "satisfaction" with the existing system. Then came Ross Perot, the rising numbers of Independents, the 1994 Republican surge, all the way to Lieberman Tuesday night. And I think a similar dynamic can be discerned for our current place in sentencing policy and reform.

When Judge Marvin Frankel laid out his vision of sentencing reform, including sentencing commissions in Criminal Sentences, he clearly had more in mind than where we are now. Check these quotes:

". . . there are huge needs for organized research and development in the field of sentencing. As is true in other domains, the notion of research and development in this one must embrace more than the generation of scholarly studies, though such studies are surely wanted. There must be a commitment to change, to application of the learning as it is required. There must be recognition that the subject will never be definitively 'closed,' that the process is a continuous cycle of exploration and experimental change." (Emphasis in original.)

"The proposed commission would be a permanent agency responsible for (1) the study of sentencing, corrections, and parole; (2) the formulation of laws and rules to which the studies pointed; and (3) the actual enactment of rules, subject to traditional checks by Congress and the courts. The third is emphasized, not because of a claim to novelty, but because it is thought to be especially important if the commission is to be an effective instrument of reform rather than a storage place." (Italics from Frankel, bold from me.)

Now, even with the varying levels and quality of reports and studies done by the subsequent commissions, it is fair to say that, as a group, they have not met Frankel's standards and vision. How do we know this? Well, here's Frankel again, years later, in a speech standing by his progeny (personified by the US commission) but sounding a little like a weary father watching his beloved son working the pasta salad section at the grocery deli:

"I cannot help mentioning at the end that the Commission has done little or nothing about the hardest problem of all: it has not advanced the education of Congress, or any of us, about what we mean to achieve, and what we may in fact achieve, as we continue to mete out long prison sentences. That may still be too tall an order for any person or group in our present state of ignorance. Still, the Commission ought to be helping us grope toward a philosophy. One hopes it will embark soon on that effort." (Thanks to Marc Miller's "Sentencing Equality Pathology,"

He finished that 1992 speech noting how important the task was because "We have over a million prisoners and the highest crime rate in the Western world."

. . . .uh.

Even the strongest supporter of commissions and guidelines cannot say that we have reached the still-necessary nirvana outlined by Frankel 34 years ago, despite the research and policy efforts that have, again with varying success and quality, been made. Which is why the chief justices can be so forthrightly blase about commissions and guidelines in the survey. Were commissions anything close to the educating, policy-forming, research-producing bodies of Frankel's dreams, could any judicial officer leave them and their actions at the bottom of a list of priorities? Wouldn't those commissions and their work be constantly on their agendas, at the forefront of everything judges did in sentencing?

Despite how this sounds, this is not a rip on commissions or guidelines. The just-held NASC conference was a good indication that Frankel's cause has not been lost, just not developed to its potential. And the panels on "second generation" reform, tech applications and enhancements, evaluations of assessments and treatment programs give real hope that we are finally girding our loins (sorry, the adrenaline's flowing) for moving more in Frankel's direction.

What's important as we do is that we have few illusions about where we are and the road ahead. It is not a matter for complacency when state judicial leaders look at commissions and guidelines and pronounce them their "least important" priority. As Judge Warren also noted, they are a widely advocated means of accomplishing all the other priorities so (which he did not say) they should be at the top. That they aren't tells us that we still have a lot of work to do.

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