Friday, September 29, 2006

"Topless" legislation

As Doug Berman notes in “Sensenbrenner officially introduces topless guidelines Booker fix,” the House judiciary has finally taken the plunge with regard to “fixing” the federal guidelines (draft legislation here). (Believe it or not my friends within the Beltway, there are those that don’t care a whit about the federal sentencing guidelines system, and their 5% or so of all U.S. felony sentences, and this entry isn’t for them.) Doug lays out the purported chief reasons for a fix here as:
Chief arguments/reasons for a Booker fix

-- Concerns about "increasing disparity in sentences"
-- Concerns about "a drift toward lesser sentences"
-- Concerns about "key witnesses [being] increasingly less inclined to cooperate with prosecutors"
-- Concerns about defendants "receiving sentences dramatically lower than the guidelines range without any explanation, or on the basis of factors that could not be considered under the guidelines"
-- The need to "secure a system of tougher, fairer, and greater justice for all"

As Berman notes in subsequent posts (to a chorus composed of the bulk of the academy), many or most of these reasons cannot stand the light of day. There is so much good work on this, I will only say that Stanford Law Review and the Constitution Project have some of the best. (Those of you who care/are in the know can add to this list without assistance, others don’t care – if I’m wrong submit a comment and we’ll get to work.)

So now that the shoe has dropped in the House Judiciary committee, let’s take a preliminary spin in this proposed contraption.

The legislation proposes topless guidelines – is this obscene? You be the judge. “Topless” means that the current federal sentencing guidelines would be modified by statute, so that the existing floor of each box in the 256 cell grid would be maintained (the part that prosecutors like because it limits lower sentences), while the current ceiling of each box is raised from its current position slightly above the floor, to the absolute TOP for that crime, the statutory maximum. Each defendant with a guilty plea only knows that they are pleading guilty to an enormous range that begins in a spot that favors the prosecution and ends in the stratosphere for most crimes.

So what’s wrong with this, assuming that the federal pockets are black-hole deep and imprisonment costs are no object.

The proposed Booker fix is technically in compliance with the Apprendi/Blakely/Booker line of Supreme Court decisions – as it stands today. These focused on not exposing a defendant to a sentence that was higher than that approved by law through aggravating factors, without proving those aggravators before a jury. This legislation if it were otherwise sound might be a temporary fix – assuming voluntary guidelines were a problem in and of themselves, which Mike and I have argued elsewhere they are probably not.

This fix is short-sighted because many forward-looking scholars believe that the inconsistencies of the Apprendi line of cases (Why exempt criminal history increases? Why not include mandatory minimums? indeterminate sentences? Etc.) will cause the Supreme Court to speak again, potentially soon, and in ways that negate any benefit from “topless” guidelines, which almost surely have other problems.

Destroys whatever strengths the federal guidelines possess
The federal guidelines are voluntary, but are observed by judges at levels not so very different than the previous incarnation, then mandatory. If it ain’t broke… comes to mind here. And the House Judiciary clearly doesn’t think it’s broke in fundamental ways because it makes no move to revise the guideline factors or basic structure, only to enforce them while expanding the top of each box in short-sighted allegiance to Booker.

IF the USSC’s guideline factors are fair and comprehensive, as some would argue including no doubt the authors of this bill, then narrow ranges are one of its strengths. That is, by limiting most sentences to a narrow range when accounting for the factors one believes are lawful and legitimate, unwarranted disparity is substantially reduced (see previous post on consistency and disparity as discussed in Scotland) almost by definition. That many argue disparity emerges nonetheless simply raises questions about the structure of factors routinely considered, not about the width of the ranges.

So now House Judiciary would massively expand those ranges. In guideline systems, the grid boxes, or guidelines scores in other systems, are meant to bring extreme sentences for typical cases to heel, while preserving the option to go outside the box for extreme cases that are atypical for a variety of aggravating or mitigating reasons having to do with the offender’s conduct and role in the crime, etc. This is Guidelines 101!

But the “Sensenbrenner fix” expands the box for all cases, thereby eliminating the strongest argument for the federal guidelines by opening the floodgates of disparity.

Statutory maximum the wrong standard
The “Sensenbrenner fix” substitutes the statutory maximum for the former guideline maximum, again to avoid the Booker problems while destroying the Booker remedy which many apparently reject as “soft” or something, despite the very stiff sentences meted out by the federal guidelines. The bill confuses the legitimate legislative purpose of a statutory maximum penalty with the legitimate Sentencing Commission purpose of a guideline limit.

Statutes must account for ALL crimes, including the most heinous version that one can imagine. Therefore, statutory maximum penalties must be set higher than judges would normally use in typical cases, because they are meant to account for the worst imaginable case The statutory maximum for drug distribution is set high in DC, 30 years, and other jurisdictions, for this reason – to account for “the worst of the worst.”

Guidelines are developed to address the TYPICAL case, and allow departures to address the atypical case including the “the worst of the worst.” To raise the guideline range to the statutory maximum completely confounds these 2 concepts.

In short, this bill has little so do with reducing sentencing disparity, fair sentencing practice, etc.

Thursday, September 28, 2006

Blog Buddies

As we've gone along, several bloggers of the ilk have been kind enough to list us in their blogrolls or otherwise direct their readers to us. We haven't had any equivalent to this point, but we're going to make up for that for our blog buddies, adding a roll on the right. Go give them a check. The list below gives you no excuse not to. (If we've missed someone who's listed us, please let us know and we will rectify.)

Blawg Republic

Corrections Community

Crime and Consequences

Criminal Appeal

Grits for Breakfast

Sentencing Law and Policy

Therapeutic Jurisprudence

Hard v. Soft

Ben Barlyn from the NJ commission sends us notice of this fine Wall Street Journal article on the successful adoption of "soft" approaches to dealing with drug offenders. It's behind the self-defeating subscription wall, if you want to deal with that, but Ben assures us that this is the money quote:

In a counterintuitive approach, police here are trying to shut down entire drug markets, in part by giving nonviolent suspected drug dealers a second chance. Their strategy combines the "soft" pressure from families and community with the "hard" threat of aggressive, ready-to-go criminal cases. While critics say the strategy is too lenient, it has met with early success and is being tried by other communities afflicted with overt drug markets and the violence they breed.

Thanks, Ben. And the rest of you, keep those cards and letters coming in.

Wednesday, September 27, 2006

SSRN: Corrections and Sentencing Law and Policy Abstracts

Doug Berman announces a new ejournal on corrections and sentencing at SSRN--Corrections and Sentencing Law and Policy Abstracts. We've been asked to post this as well and are glad to for a couple of reasons. One is our support for any of these net ventures to promulgate more dissemination of ideas of research in our areas, like Ian Best's case blogs concept yesterday below. The other is that Doug is on the journal's advisory board. We're going to put up a permanent link to the journal on our right side so you'll always have easy access to it here. Good luck to them.

News of the Day 9-27-06

A couple of good series finished today. This one in the NY Times chronicles NY's justice courts (old style "justice of the peace" types), their problems, their defenders, and the political ineffectiveness of opponents (or the power of their protectors). Of extra interest here because of all the commissions that have recommended their abolition over several decades now and failed. Sound familiar? And this one from the Grand Rapids Press spells out the current and coming impact of aging offenders in MI, which already spends more on its prisons than on its colleges (read to see why the gap will widen). This is the timebomb ticking quietly to the side in most states as the chickens of Truth in Sentencing begin to roost. This series doesn't really offer surprises, but it's a nice review, update, and primer on the topic. . . . Finally, Chemical & Engineering News (?!) reports that medications for treating addictions have nearly doubled in recent years, with drug companies "increasingly viewing addiction as a target for drug development." Technocorrections, anyone???

Around the Blogs 9-27-06

Tracey George, current guest poster at Empirical Legal Studies, has an interesting post up on the % of social science Ph.D.s on staff at law schools (usual suspects rank high, but not in the order you might predict, and Harvard doesn't make the top 20). Coming out of sentencing, I find this a topic dear to my heart and one Kim and I have discussed frequently. I have great admiration for the legal scholars associated with sentencing policy, but, as I've mentioned before, I think the last couple of decades in the field would have turned out differently and better had people trained in policy been associated. Some of this is self-interest, as it's my discipline, but not at much as you might think, as I've aged out of possible academic employment now. It's more just having been on and being able to see more sides of discipline applicability than I think the legal folks have been able to do. I strongly recommend getting some of the bright young social science talent (and commission folks like PA's Mark Bergstrom or VA's Meredith Farrar-Owens) on law faculties, and hope the ELS series has an impact. (Why one of the DC-area law schools hasn't picked up Kim and/or Dave Soule at the MD commission, I just don't understand . . . and Kim didn't pay me a dime to say that. Yet.) . . . CrimProf Blog sends us stories on a couple of research findings. From the LA Times is the report that parents sitting down to eat dinner with their teen children is positively correlated with preventing drug use (a little problem with the old "correlation is not causation" concept here, I think, but not bad acvice in any case). The other is from Newsday, analyzing the legal and bureaucratic reasons why released sex offenders end up living clumped together in "clusters" within cities. . . . Finally, Grits for Breakfast has been intentionally provocative the last couple of days. (Surprised?) They've hit us with a 10-point plan for real public safety reform that is too sensible to make much headway, then followed with its take (quite pessimistic) on the shift of meth production/distribution to Mexican gangs once we deprived our local entrepreneurs of Actifed. I don't disagree that now having well-organized and financed cartels providing purer product outcome is a big negative, but, as I've noted before, we were talking about that likely outcome in WI a couple of years ago. And there are secondary positives (quite cynical) about having the meth labs in Mexico rather than in our backyards or next door. So I don't agree it's a "failed policy" or "catastrophic." It's just a complex adaptive system at work. AKA, squeeze the toothpaste tube one place, it pops up in another. Still, a post worthy of your attention and thought.

Tuesday, September 26, 2006

Case Blogging

Joel Jacobsen at Judging Crimes has already beaten us to the notice of this interesting experiment at 3L Epiphany (and with great accompanying commentary), but it's something we wanted to bring to your attention as well. Regular readers know that we stress the importance of building the commentary function within the corrections and sentencing communities, and this sounds like an intriguing experiment not just in legal ed but also in developing effective ongoing discussion about individual cases. You might want to check it out and, even better, participate. (If you end up getting solicited to help an African prince regain his fortune, this never happened.) Seriously, the potential of the blogosphere for all kinds of exercises like this needs to be put into high gear, and we wish them luck in getting the case blogs going. Here's Ian Best's description.

Where is the Hudson v. Michigan Blog? - A Suggestion for Law Students
On June 15, 2006, the Supreme Court decided the case of Hudson v. Michigan. The Hudson Court held that a violation of the knock-and-announce rule by the police did not require excluding the seized evidence. This was a tremendously significant decision, and a simple Lexis search indicates that there have been 39 cases citing Hudson in state and federal courts. But three months later (on September 21st), not a single law review article about Hudson has been written and published. The reason is obvious: there has simply not been enough time.

No doubt at this very moment some lawyers and law professors are writing law review articles about Hudson and the knock-and-announce rule. All of these articles will be submitted to law reviews for publication. If they are approved, they will be edited and “acc-checked,” sent back to the author with corrections, resubmitted to the law review, edited and “acc-checked” a few more times, and finally published. How long after the actual case will they appear in print? At least a few months, and perhaps more than a year.

Meanwhile, there are prosecutors who are trying knock-and-announce cases, and there are defense attorneys who wonder how Hudson applies to their clients, and there are judges with their clerks who are wondering how Hudson is playing out in the various states and circuits. What questions are left unanswered by Hudson? What consequences should be expected? What progeny might be on the horizon? An attorney who relies on the traditional forms of legal publication will have to wait for a year to learn what the experts think. And when the law review articles finally begin to come out months from now, how many of them will have practical value? Some no doubt will be helpful to legal practitioners, but many of the articles will be esoteric and arcane, and some will already be outdated.

But suppose there were a blog devoted exclusively to the case of Hudson v. Michigan (the “HvM Blog”). This blog would become the online authority about the case and its ramifications. Every time a lower court relies on or distinguishes Hudson, the HvM Blog could name and analyze the new decision (and link to it if it’s online). Lawyers and law professors could analyze Hudson and its consequences, and submit their research to the blog. If some form of review were desired, submitted scholarship could potentially be approved, edited, and published within a week after being received. And as state legislatures pass statutes to clarify their laws in the wake of Hudson, the HvM Blog could follow the legislative developments. The blog could link to the online conversations already taking place about Hudson.
If done well, an HvM Blog would provide immediate benefits to the entire legal profession. Prosecutors and defense attorneys across the country would rely on it as a resource, and judges might even cite the blog in a court opinion.

Blogs are successfully challenging the monopoly that law reviews and law journals once held over the dissemination of legal scholarship. There are hundreds of law reviews and law journals, including the “main” and specialty ones. How many of the articles contained within are actually read? How many of them have an impact on the profession? How valuable are they to practitioners? How much time does a typical judge or lawyer take to read law review articles when they come out? And how many of these law reviews and law journals could be completely discontinued, with the negative consequences being minimal or non-existent? Every year, law students across the country endeavor to write-on to one of their school’s law journals. Those who are unsuccessful should consider creating a blog as an alternative. Those who do get on law journal should consider creating a blog on the side if time allows.

If (as this
law professor complains) “the vast majority of law review articles are read by few people, and cited by even fewer,” and if (as this attorney says) “[b]logs are better for me than [law reviews] will ever be,” and if (as this judge predicts) “legal blogs will partially fill the ‘practicality’ gap between the legal academy and the rest of us,” then now is the time for law students to become pioneers in the legal blogosphere. Law students who create sophisticated and authoritative blogs will be laying the foundation for legal scholarship in the 21st century. Eventually future law students may consider starting a blog to be as valid as joining a law journal.

I used Hudson v. Michigan as an example, but any important
case could merit a blog. The same holds for any significant statute or regulation, or for any major trial. Many legal specialties do not yet have a blog devoted to them (adoption law, for example). By creating a blog, a law student can take online ownership of whatever topic he chooses. He can turn his blog into a continuously updated resource that actual lawyers and judges pay attention to. He can invite lawyers and law professors to post their scholarship on his site, whether short-form or long-form, with a variety of styles ranging from the colloquial to the formal. He can also conduct his own research and publish his own work. Such a student may end up becoming a nationally-recognized authority on his chosen topic.

If law students are inspired by these ideas and create their own legal blogs, they should attempt to get Independent Study credit. This would require finding a faculty sponsor and getting approval from the administration. If it is too late for such a project to be approved this semester then it can be planned for next semester, by which time published articles on Hudson v. Michigan (for example) will still be lacking. Law students who want to make their blogs more official might join together and form a group blog. If any law students follow through with these ideas and start an HvM Blog or its equivalent, please let me know and I will try to send traffic your direction. Good luck.

Why People Obey the Law

“The dog that didn’t bark” is one of the major reasons I went through a serious Sherlock Holmes phase in my just pre-teens. The enlightenment that we should pay attention to the hard-to-notice, unobtrusive things and not focus solely on the most visible or available was a good one for someone that age to learn. It would still be nice if social science as a whole learned it rather than simply pursuing the data at hand (or grants), as the famous “Drunkard’s Search” we all learned in methodology classes taught us (and we as a rule have ignored). The unbarking dog, though, was even better than that lesson. The unbarking dog wasn’t just something we should be noticing. It was the answer to the puzzle.

For generations in corrections and sentencing law and policy, we have also overlooked “the dog” way too much, although some of that is changing now. We have theorized on the immediate and personal nature of the offender and offense, although the life-course literature is finally making clear the non-linear nature of most human lives and hopefully taking us to complexity theory where real answers will one day be found. For years and years we focused on why criminal kept recidivating, although now the desistance literature is grabbing more prominence. We played an enormous social experiment by packing as many offenders behind bars as we could, then packing more, dumping any pretense of rehab along the way, and only in the last few years have glommed onto “hey, they’re coming back out.” Most of all, we have shined the spotlight on why people commit crimes, all the factors and contexts (routines) that go into offender and offense. Very few have studied why we don’t.

One of the exceptions to the last is Tom Tyler, who in the early ‘90s wrote Why People Obey the Law. I’ll state it simply to anyone involved in criminal justice or anything involving rules and laws. This book should be one of the first half-dozen anyone serious about corrections or sentencing policy should read. You want to argue, take it somewhere else.

Tyler’s Chicago study (using interviews and surveys of respondents with recent experience with police and judges) compared two perspectives of law and how/why it is obeyed. First, in the normative perspective, he explained, “people will be concerned with whether they receive fair outcomes, arrived at through a fair procedure, rather than with the favorability of outcomes.” He added, “people care about the justice of outcomes (distributive justice) and of the procedures by which they are arrived at (procedural justice).” On the other hand, in the instrumental perspective, “citizens are concerned with winning—that is, with receiving favorable outcomes when dealing with police officers and judges.” Here, “people do not focus directly on the favorability of the outcomes they receive from third parties. Instead, they focus on the degree to which they are able to exert influence over third-party decisions.”

Tyler studied how/why/when respondents linked these perspectives into their personal conceptions of procedural justice. Through his analysis, he concluded that the instrumental (short-term, self-interested) perspectives do not drive most peoples’ views of outcomes most of the time, no matter how much economists and public choice gurus want it to be true. In fact, most behavior toward law is better explained by the normative perspective, which raises the Weberian questions of legitimate authority. He concludes that “People obey the law because they believe that it is proper to do so, they react to their experiences by evaluating their justice or injustice, and in evaluating the justice of their experiences they consider factors unrelated to outcome, such as whether they have had a chance to state their case and been treated with dignity and respect.”

Why bring this up now? Because a revised version of Tyler’s book has just come out, complete with updated research and responses to his earlier work’s critics. Not surprisingly, the research he and colleagues have done sonce has reaffirmed the basic findings and the importance of perceived legitimacy of authority. This shouldn’t be a shock, of course. We know offenders who in some areas besides that of their offense have high moral codes, we know of upright non-offenders who cheat at Scrabble (no names named). Context matters, sure, but why? Because we’re reacting to the perceived fairness of the situation and outcomes. My wife and I used to sit on our porch in WI and rate people on a 1-5 scale for “complete stop at stop sign.” Tyler basically says that, from that, you could still never tell which ones were lawbreakers in other areas. You don’t believe this? You’ve never gone over the speed limit for any reason, right? You have? Then you must be a murderer.

The importance of Tyler’s research should be clear (as he makes obvious in both the original and revision) for those in corrections and sentencing. Perceptions of fairness and unfairness of treatment as well as outcome drive our willingness to obey and disobey the law so consider that at every arrest, charge, and sentencing. Our current system may exacerbate as much as impede future disobedience depending on how offenders and even the victims are treated. This book should be at the right hand of every advocate of victims, restorative justice, and mediation and part of every training manual for cops and correctional officers. It also should direct more and more research to ID applications and misapplications. It should shift the focus away to a greater extent from the usual barking dogs.

If it achieves even half of that, this “dog that didn’t bark” may end up being more famous, and useful, than Holmes’.

Monday, September 25, 2006

Comments and Links to the Right

As we do begin to get comments and conversation going on at least some of our posts, we want to publicly think those who are participating and invite the rest of you again to do so. If we aren’t posting things of value or that need discussion, then send us things that do. Our primary reason for starting this blog was to foster exchange about the connections between corrections and sentencing among those who are engaged in them. Kim and I talk to ourselves regularly as it is . . . didn’t come out right, but you know what I mean. I’m just saying that this isn’t worth doing without you.

Along that line, and following the new material we’ve put up on reentry, we thought we’d remind you of the other stuff there on the right, especially if you’re new to the site. Besides the Links linking you to links, you’ll find under Articles and Commentary, along with the reentry material, info on “What Works” and recidivism, principles of drug abuse treatment, criteria for effective advisory guidelines systems, and Ben Barlyn’s excellent defense of sentencing commissions in NJ. Under Research/Reports, we link you to evaluatons, government (US, state, foreign (!)) research agencies, other sentencing blogs, and regular state news. And the Agencies and Organizations link will get you to all the major sources we could think of and some we couldn’t.

If you know other links we should make, please let us know. We’re from the government and we’re here to help. We’d like this site to be your first thought when needing info on corrections sentencing topics. As the new Bartles & Jaynes, “we appreciate your support.”

News and Blogs Together! 9-25-06

Only a couple of items in blogland and in the news each today that I wanted to pass on so I pulled them together for this post. One is a study from Canada correlating increased Alcoholics Anonymous membership and decreased homicide rates in Ontario from 1968 to 1991. For every new AA member per 100,000 people, the rate dropped 0.3-0.5%. Applied only to men, but given the prevalence, we'll take it (and wait for those new beer company-funded community service ads). . . .In the midst of describing his part in a BBC documentary on Billy the Kid, Joel Jacobsen at Judging Crimes draws some interesting parallels between the Wild West and today's inner cities. . . . From Grits for Breakfast, yet another study so counterintuitive, we'll forget it immediately. Given the choice of jail or probation for DWI, 43% of first-time Harris Co., TX (Houston) offenders chose jail as the less severe option, easier to complete. So much for treatment. Past studies have shown similar results across other offenses. Law-abiders can't imagine how this could be true, but that's because they're law-abiders. . . . Not really surprising but a study in Alcoholism finds that people with alcohol problems who stay sober for the first year after seeking treatment are more likely to be alive 15 years later than those who have trouble that first year. . . . Finally, another take on that OH law that allows people never even charged with a sex offense to be placed on a public registry of sex offenders through a civil proceeding (to get around "beyond a reasonable doubt"). I've mentioned this before--if this can be done to sex offenders, why shouldn't it be applied to all offenders and offenses, and what are the implications of that? . . . Ponder, and enjoy the evening.

Note from Across the Pond

The Sentencing Commission for Scotland has issued a couple of reports that should attract wider notice here in the U.S. than they might otherwise.

The first report, Sentencing Guidelines Around the World, is pretty-much aptly titled. It provides a fine overview of various sentencing systems in use around the world, well in the western industrialized world anyway. I think it provides a fair summary of the systems most of the students of criminal sentencing policy will recognize, and some you probably won’t.

The second report, The Scope to Improve Consistency in Sentencing, is also true to its title. It defines sentencing consistency as “offenders committing similar offences are punished with similar penalties by different sentencers, whether those sentencers sit in the same court or different courts.” This blurb does not do justice to the report, which contains a more nuanced understanding of the difficulty of defining “similar” and the tradeoffs between achieving a reasonable level of consistency and respecting other principles such as judicial independence and individualization of sentences (cue the grinding gears and machine noises here).

I like the term consistency in this respect at least: it suggests a modesty of purpose that may be achievable. There are volumes written about “unwarranted disparity” (nicely summarized in this NIJ report here and here). Don’t we all know that disparity exists and it’s a problem for public confidence in justice outputs. But unwarranted disparity is nuanced, rarely overt or overwhelmingly obvious, and hard to ferret out, and much of it does not involve sentencing hearings but earlier stages in the process. And it is a volatile topic, of course. Much lamentation follows, and discussions of eliminating disparity in sentencing (This is no straw man: I have heard this stated in public meetings as the goal).

But is this really possible? What has to be sacrificed to “eliminate” all unwarranted disparity? Are all individual distinctions that correlate with race, gender, or other overt factors to be completely removed from consideration? Can you envision a system that eliminates disparity at the point of sentencing, and is nonetheless unjust? Of course.

Focus on consistency might take us back from the precipice, and allow us to recommend a sentencing system that does better than its predecessors, while recognizing that disparity reduction is one goal, and not the only goal.

Saturday, September 23, 2006

People We're Mad At

Until a few months back, I worked on the same floor with this woman. Now she's been sentenced to 18 months in federal prison after having been found guilty of using her position to divert a contract to a company that had not won in the bidding process. It was pretty clear to us at the time that, had this been the military, it would have been a case of the lieutenant taking the fall for everyone else up the chain. There were those in the building, though, who refused to believe that anything untoward had actually happened at all, even after the verdict, primarily because she was such a reticent but friendly woman. When she was convicted, the morale in the place dropped low enough to refreeze those melting ice sheets at the poles.

I look at this sentence and, I'm sorry to all you "do the crime, do the time" folks, I can't help but feel this is a classic case of the now-cliche "locking up the people we're mad at" rather than "the people we're afraid of." I didn't know her except to say hello in the hall, but frankly it makes me mad that my tax dollars will be going to pay for her incarceration for the next 18 months. This woman should be doing serious community restitution, visible, where everyone knows what she's there for, but contributing her skills and experience to rebuilding what she's taken apart, with a job as well to pay her own punishment. She doesn't need to be draining away my money.

We have to be tough on her or people will lose faith in the system? That's what the judge said. I'd like to think there's always a correlation between wisdom and what judges say, just like I'd like to think Salma Hayek has built a shrine to me. Everybody and his grandfather there knows that this woman's just a fall guy, gal, girl, woman, whatever, and that higher ups skated. WI isn't just going through the corrections and sentencing psychosis I've described here. The state is in the first broad loops of a spiral narrowing downward that its "leaders" determinedly refuse to address, which does far more to make residents lose faith in the system than hanging a little scrawny mid-level bureaucrat out to dry. And those other bureaucrats who needed deterring? Believe me, seeing one of their own lose her job, her house, her reputation, her future gets the job done. You don't need to add federal prison to the list.

What sentencing goals are being achieved with this? Specific deterrence? Well, how many more contracts do you think she was ever going to be put near anyway? General deterrence? See "lost job, house, reputation, future" above. Rehab? I would bet every dollar I ever earn the rest of my life that this woman will even come to complete stops at stop signs, much less ever doing anything else wrong again--and that was before she got the pen. Incapacitation? Like she was going to be out diverting more contracts if we hadn't locked her up? No, this is purely punitive. We're mad and we're going to show her.

Okay, fine. I've been mad at people I've wished I could have locked in maximum. (It was probably good I didn't control an electric chair.) And I don't accept the idea that we should ignore the symbolic value of punishment and reaffirmation of community values, like it might sound like I'm doing. But I know this woman. She poses no threat to anyone or anything anymore. In a sound sentencing system, her skills and training would have been put to use in productive ways that did not take dollars out of my billfold, would have actually kept some of the (few) others I have in their place. But now she's going to behind bars, doing nothing, contributing nothing, in the name of a value that her incarceration, while superiors walk, actually spoofs. And people with claims to functioning brains think this is a good idea.

Forget the "California Challenge." We're the challenge.

Friday, September 22, 2006

Ruminations, Late Summer Weekend

In my previous posts, I’ve made clear that I don’t think sentencing commissions have achieved what Judge Frankel perceived for them when he proposed them. This is greatly due to the fact that the policymakers who’ve created them really don’t want that kind of authoritative (legal as well as substantive) body intervening in their sentencing policymaking. And judges as a bulk certainly have not risen to his defense.

I’ve also made clear that Frankel’s “solution” to sentencing policy remains among the best possible, in terms both of budgets and justice. Let’s say we had a real Frankel commission operating in state since 1980 or so. What would its product, its legacy look like right now? A mixed board of practitioners, policymakers, citizens with perspectives besides criminal justice, taking strong stands backed by strong analysis gaining strong respect. Sentencing data over almost 3 decades filled with variables for analysis, with enough trends and offenders (not)returning to have fueled a dozen dissertations and hundreds of articles. A foundation of sound research and knowledge underlying that commission’s authority to promulgate sentencing rules that only policymakers promulgating nonsense would dare to challenge because of that sound foundation. We would know more than we can imagine about sentencing goal attainability, about sentence effectiveness in reducing recidivism, offense severity, victimization, about the philosophies, theories, and “common sense” that withstand assaults of reality and those that crumble.

As I’ve said, that commission clearly does not exist. The closest we have in age and authority is MN, which has settled into a deserved but comfortable, predictable, and unthreatening middle age. The closest we have in policy impact right now are probably (this may lose me more friends than that MN comment just did) VA and NC, but even they do more with guiding outcomes of external policy demands than setting the tone and agenda for their states’ sentencing policy. (In defense of my choices here, I just note that CA invited reps of MN, VA, and NC to come speak to state policymakers about commission successes.)

After over 30 years, no state (I don’t mention the feds because of their past, current, and future problems) now really approaches Frankel’s vision and promise. They all collect data (of varying kinds and uses), report basic stats, some project prison pop’s, some are on hand to buffer and divert when a Blakely or a Booker come down. But if every commission, even the good ones, disappeared tomorrow, would you like to bet how much sentencing and sentencing policy would actually change? (Keep in mind that the commissions with high guidelines compliance usually based them on historical practice, verified or perceived.)

In 30 years we don’t seem much closer to defining what, if any, goals should be the priorities of our sentencing. Judge Marcus in OR has made that the catalyst for his push for “public safety” as the proper goal. Others have basically given up any search and just warehouse (aka “incapacitation”) although our reentry problems are now pointing out the wisdom of that. Should there be one goal for the same type of offender? Of offense? Or should there be several, ordered and weighted? Same for same, different for different? How do we know? What evidence, what data, what research actually backs those choices, backs any given sentence?

We can do studies and develop aggregate results that point to aggregate answers, but only the slowest of jurists will fail to spit out “but all individual cases are different” within a heartbeat. But if we can predict, and I’ve published research to show we can, that, sans guidelines, two-thirds to nine-tenths of all sentences for any given offense will be, like magic, a multiple of 6 months, how much real thought and foundation do we have to justify the sentences given? In other words, with the self-limited options for sentences and relatively few factors about the offender and offense we know from data and cognitive science are considered at sentencing, all judges operate with structured sentencing, commissions, guidelines, or not. They just invoke “discretion” as their rationale because they have no other reeds.

Frankel meant to change that. His commission was to bring research, data, and analyses to the practice of sentencing in order to wash out the ill-considered, the poorly-founded decision, the whim, the prejudice—all in the name of better justice and faith in the rule of law. But, as I’ve noted before, 20 years later, he was unable to say publicly that the best resourced commission, the feds, had gotten near the prize. Those of us with a quarter to half million dollar budgets have no hope (although some manage to become the A’s and Marlins while some are the Royals and Pirates).

As I said, much of this failure is intended by those responsible for starting commissions. But I think some of it, ironically, is the result of the early successes of commissions and guidelines. The early selling in the states that still rank high—MN, WA, PA—had to be done as providing “the answer” to the state’s corrections and sentencing policy problems. And, if you have “the answer,” why ask questions anymore? Why pursue best practice if it’s magically provided by the invocation of guidelines? Given the scarce resources of virtually all commissions, the staff and statistical support to run the guidelines would leave little for “non-guidelines” theory, data collection, analysis. Maybe academics could pick up some of it, as Frankel strongly advocated, but that depended more on chance and interest than intent. As it’s argued that Roe v. Wade shut down social consideration of abortion in the early ‘70s, did commissions and guidelines shut down how to do sentencing best?

So. We can tell, in the aggregate, many treatment programs that “work” and don’t, the cost-effectiveness of a dollar spent on some sentencing decisions and others, a few other findings, all good things that Frankel would endorse. But even those things are still missing from most policy debates, such as the recent Jessica’s Law approvals (except maybe in WA with its wonderful State Institute for Public Policy which is closer to Frankel’s views than most commissions). Witness as even MN adopts mandatory minimums and sees its incarceration rate climbing as fast as or faster than other states’. Think about those studies claiming 25% of the ‘80’s crime rate declines was due to incarceration but aren’t able to take it the next step and spell out how much of that 25% could have been accomplished at lower cost, with more dollars left for other public safety efforts that would have stopped more crime.

States with 30 years of experience with a Frankel commission could have addressed those questions and concerns. States with 30 years of experience with a Frankel commission wouldn’t now be facing yet another renewal of increasing violent crime rates and calls for “prison, prison, prison” poised to repeat the prior 30 years. States with 30 years of experience with a Frankel commission could, like physicians, roll over anyone with little actual training or knowledge but claiming equal or superior credibility and expertise about what to do about crime. States with 30 years of experience with a Frankel commission would have bodies with the authority and legitimacy to override demogoguery and crimes du jour. States with 30 years of experience with a Frankel commission would see more and better thought and action on behalf of victims and taxpayers.

Frankel commissions can still be done. A few states are not so far away already. But it will take leadership, funding, and perseverance. Not from commission states themselves, too enmeshed and too threatened by their states’ politics and their own SOPs. It will take a national movement with national leadership, perhaps like the Cincinnatus Committee I recommended in my “California Challenge.” Funding of comparative state sentencing studies from pooled data systems to ID best sentencing practice (so easy to write, so hard to do) would be a smaller giant step but feasible and imaginable. But as it is, even with good states out there, overall we’re stuck in a lower gear, far from the cruising speed Frankel envisioned by this time.

He deserves better. Victims and taxpayers deserve better. Justice and wisdom deserve better. Our children and our nation deserve better. Highly informed and authoritatively validated sentences are possible.

All we need is the will.

Around the Blogs 9-22-06

Real Cost of Prisons has a couple of posts worth thinking about. The first brings you a story and an editorial from CA on its coming vote for the state's version of "Jessica's Law." If you simply value punishment for its own sake, and that's actually a defensible position, then your support for this law makes sense. But if you think the added sentences are going to stop child sex abuse (which is already down under existing law), the evidence says you're wrong, and in fact likely to increase it, which is why so many DAs have opposed these things (can't get charges against Daddy, Reverend, Coach, whoever). If you think GPS tracking will get it done, unless you put trackers on every child in town as well and have immediate response teams only a minute or so away for every offender-child interaction, you'll be wrong again. If you think all sex offenders are alike, recidivate alike, deserve the same punishments as the hard-core abusers, you've hit the trifecta of wrong. And, if you think this is the best use of public safety dollars when law enforcement, prosecutors, juvenile justice, and courts remain so lacking, you need to dope me heavily before you'll convince me. "Jessica's Law" is the best current example of policymaking ignoring demonstrated consequences and real needs while pushing enormous costs off on unsuspecting taxpayers until the unnecessary bills come due. I have no sympathy at all for child abuse of any kind and am willing to consider punishments for heinous offenders that civilized people might blanch at. But this is just another case of action derailing thought, causing more victims, not fewer, and higher costs that lead to even more victims in other areas. Maybe CA going broke, with WI and CO eagerly following, is what this nation needs as a whole to stop this thoughtlessness. (This is not a political rant. It's attention to reality. Maybe someday we'll recognize the value of that again.) . . . The other Real Cost post is a report from the Hastings Center discussing prison health care, its problems, and its possible Eighth Amendment implications. Good overview, discussion of issues. . . . Speaking of the Eighth Amendment, Doug Berman at Sentencing Law and Policy alerts us to an op-ed questioning the 200-year sentence of an AZ man simply for possessing child porn (no evidence of other behavior), and his challenge that the sentence is "unusual" under the 8th Amend. I bring this up not for the reason you might think but to note that one implication of the coordinated national sentencing data and info system that I frequently advocate here might mean more cases of this sort, citing truly anomalous state sentences compared to possibilities in other states. And before you think, well, here's another defendant dream-come-true, victims would also have comparative data for use in pushing legislation. That's why we need a group of learned and serious folks not just doing the coordinating but thinking through the possible futures.

Thursday, September 21, 2006

So You Want to Direct a Sentencing Commission?

As another of the series of posts we've been offering from folks with sentencing commission experience, we offer this from my old boss (not that he's old, too much), Paul O'Connell, former executive director of the Oklahoma Sentencing Commission, discussing his impressions of his work in those days.

Recently I was approached to offer my views to this website concerning how to effectively deal with “outside constituencies such as legislators, governor’s staff, press, etc.” As a former sentencing commission director, my experience allowed me to help develop commission work from its inception through six years of contentious legislative sessions focusing on criminal justice issues. The experience taught me valuable lessons both personally and professionally about dealing with the commission itself and outside constituencies, lessons that I would like to share.

My initial reaction to this request reminded me of a scene from Godfather III where Michael Corleone turns to Harrison and Connie and proclaims “ just when I thought I was out, they pull me back in!” But, having been on the periphery of sentencing commission work for the past five years the request, gladly, has given me the opportunity to reflect and evaluate my experience as an Executive Director. First, the worth of any Director, and commission for that matter, is only as good as the dedication, expertise and professionalism of his/her staff. I was fortunate to have a small group of knowledgeable, professional and for me, more importantly, loyal individuals who helped me navigate through the political mine fields of the legislature. My job suddenly became less complicated knowing that they were “watching my back.”

Secondly, the membership of the commission itself offered diverse perspectives on criminal law and sentencing, which provided great debate, discussion and at times great entertainment. Given the quality and quantity of the membership, egos and agendas abound. Rule number one is NOT interject your own ego and/or agenda into the mix. You will quickly learn that your agenda is irrelevant and your ego is inconsequential. You must be “ego-less.” The important thing to remember is you are staff to the commission and you serve at the pleasure of the commission (at least for me). There will be radicals at both ends of the spectrum on any commission. That’s the nature of sentencing commissions. Trust in your chairperson and those of like mind. Build your relationships with every member. Show them that you are loyal to them as a group and they will respond in kind.

There will be times when that loyalty will be tested. You will be probed and evaluated about your personal opinions and positions by “outsiders” with agendas of their own. Never expose your personnel feelings on work related issues. Frankly, they really don’t matter. You represent the Commission and its position. Once you expose your personal thoughts and positions to those outside the commission, you will be viewed in those terms, and as a result your work product will always be suspect. To quote Don Corleone to his son Sonny, "Never tell anybody outside the family what you're thinking again." Words to live by.

Also, try to provide objective information to them for their consideration in making their decisions. There will be times when out of the blue a study will appear from some obscure university written by some recluse professor that will support a member's position or a particular group’s position on a certain matter. The next thing you will know, that study will be promoted as “mainstream” and therefore must be true. As the director, it is your responsibility to provide credible information both with a conservative and liberal bent. The members themselves will cipher the truth for themselves.

Finally always get the permission of the chairperson(s) and other key members of the commission before commission work products are released. In dealing with the press, provide them with summaries and talking points, which have been pre-approved by the chairman. It provides a consistent message to the public and others as well as your commission members. It also provides “cover “ to the executive director.

In looking back at my experience, there were certain things that I should have done differently such as gone to law school or gained a Ph.D. or perhaps even not shown my liberal (eastern) bias in a conservative world. It would have certainly given me more “legitimacy" (being accused of being a “carpetbagger” was not a particularly high point in my life). But, if you were to ask me if I had regretted the experience, the answer is certainly not. I found those six years to be the best of my professional career both in terms of the quality of work I did and completed, the quality of friends I made, the professional acquaintances I met and the leadership I witnessed. It was certainly an exciting time to be in the commission business. If you were to ask me if I were willing to come back into the “house of pain” they call the legislature, the answer is: You bet.

I’m not sure I addressed the request made of me, but it sure was fun to reflect. I hope this is helpful for those of you out there in the business. I value your work.

News of the Day 9-21-06

Another state rushes through a sex offender law, then sees the consequences--KY is being sued over a new law that restricts any former sex offender in the state, even those off probation or parole, from living within 1000 ft. of a school, licensed day care, or public parks with pools or playgrounds (aka just about everywhere). The plaintiffs include an 80-year-old man in a nursing home with dementia and heart trouble, a 66-year-old man who has lived with his wife for 39 years in their home, and an 80-year-old whose sister left him the condo he lives in on the condition that he couldn't sell it. These folks aren't going for money, just for the law to leave them alone. . . . The Baltimore Sun has a story on the $1 m.+ a year the state spends on inmate assault. Oh, and that doesn't include costs of transport to hospitals or of prosecuting the assaulters. . . . The USA Today story is titled "Is Adult Prison Best for Juveniles?", which should get the topic across. Decent overview. . . . In TX, Independent gubernatorial candidate Kinky Friedman espouses a different sort of sex offender punishment--they should be locked up and forced "to listen to a Negro talking to himself." Of course, some people are vocalizing protest, but in a four-person race, this might just put him over the top. (I'm not really kidding.). . . As we wait to be proven wrong in our "California Challenge," here's a good summary piece, complete with timeline, on CA's problems and the failure of its recent special session to act on its corrections and sentencing policy needs (uh, it's a Gordian Knot, I keep telling you). And then there's this today on the governor's solution--more prison beds, then, someday, we'll get to treatment programs. IOW, same old, same old until things actually start to spin apart. Well, at least they're not failing to address federal court demands . . . wait, uh . . . .


Given the importance of reentry on both the corrections and sentencing sides, we have posted some new links under the topic in the "Articles and Commentaries" link on the right. You'll find articles on the overall process, best practices, victims' roles, the community and reentry, female reentry, and a transcript from a reentry conference. Under "Agencies and Organizations," you should also find a link to the DOJ reentry site, with lots of links and other good stuff. We'll add more as we go along, but we think you'll find a great deal there to help as you deal with the subject. Let us know if you run across material that would be good or is needed. Thanks.

Wednesday, September 20, 2006

California, Castration, and Technocorrections

In my posts on the "California Challenge," I made clear that CA's corrections policy is in effect a Gordian Knot, an intractable ball of conflicting interests about which, if enlightenment were ever going to dawn, it would have done so by now. Such creatures are only untied by the sharp edge of a sword, such as wielded by Alexander the Great on the knot in question. The sword I proposed was a radical change in behavior but do-able within the framework of democratic government and with potential not just for reality but success. That doesn't mean, however, that mine is the only sword out there. There are two others, at least, and, as drastic as mine might seem they are worse.

One is simply the current course they're on, until the system collapses in whole or in part. System collapse is a powerful sword and disturbingly possible. Ask Rome. The other sword, though, is less obvious at the moment, but we're getting hints of it. And it's symbolized by the study now going on in VA that we've mentioned a couple of times recently--castration (surgical or chemical) of sex offenders as a voluntary (!?) alternative to civil commitment. It's part of a general trend on the horizon I've also referred to a couple of times, known as "technocorrections."

You don't have space and/or dollars to keep someone in an institution. You can't let them go without major controversy. What to do, what to do? Well, what if there were a drug . . . ? Or, what if there were an implanted chip . . . ? Best of all, what if there were a way to re-engineer an offender's genes . . . ? But, but . . . due process, Big Brother, uh . . . . No problem. It's all "voluntary." (At least for now.) You really going to pull money out of schools, highways, public health, other areas of criminal justice when, with one simple pill or electrode or gene snip, you can cut your correctional costs dramatically with at least as likely success at reducing recidivism and victimization as current prisons, especially CA's? Who's going to vote for a candidate who thinks that's logical? If we'll do it for sex offenders, why not everyone? Are sex offenders special? And frankly, if a guy can come off addiction to substances, to children, to the thrills of committing crimes, how could we argue?

Well, we argue because we know about other ancient concepts like "slippery slopes." Where does it end? Who all gets these "corrections"? Who decides and on what criteria? Is a government that is so bound up it can't solve the problem without resorting to these measures to be trusted to nevertheless make wise decisions about their use?

I wish I could say I'm one of the first to systematically think about these things, but I think history will award that honor to Tony Fabelo. Tony was executive director of the TX Criminal Justice Policy Council, which did some of the best work on program evaluation, statistical reporting, cost and bedspace projections in the nation until the current governor decided TX didn't need that stuff anymore. Tony wrote up an NIJ Research in Brief (May 2000, No. 5, NCJ 181411), which can also be found excerpted here, that coined the term "technocorrections." His goal was to alert us to the growing trends in the use of surveillance, pharmaceuticals, and genetic engineering that were even then moving corrections and sentencing policy more into areas that policymakers and sentencing commissions are ignoring in whole, if not in parts (such as castration in VA). A Cuban refugee, Tony has not always been impressed with government benevolence and wanted us to start systematic thinking before the trends, like most technology sold on their advantages well before their dangers are apparent, overtook our actions. As I said, he wrote in 2000. Seen much from commissions, legislatures, election campaigns on this lately? From academe? (Seriously, have you?)

The easiest (and worst) way for "technocorrections" to come about would be for a state to get so desperate to do something about its crushing correctional costs that it embraces it as the only available reed. Fortunately most of the technology is still only in formative stages, but for how long? What we need now, before the full potential beyond castration and methodone rises, is to have serious discussion by bodies with authority and legitimacy to establish principles and oversight procedures for technocorrectional mechanisms. I've pointed out before that other states are not as far from CA's knot as they might think, particularly if the economy heads seriously south. I'm on the NASC board and plan to propose it as a topic for our 2007 conference. I don't think that will be enough somehow.

So I encourage you to review Tony's work and give it time and thought. Maybe we can start a meaningful conversation here. We can't just sit. If we wait until the problems Tony outlines arise, it will be too late.

News of the Day 9-20-06

USA Today reports that NYC had the lowest overall crime rate of the country's 10 biggest cities in 2005. Crim Prof Blog has an addendum to the piece that you need to read in order to interpret the numbers well, though. . . . Good story in the Atlanta Journal-Constitution on inmates getting second chances by serving as firefighters in rural areas (h/t Real Cost of Prisons). . . . The Washington Post runs a typical tale of how poor coordination of jail and court data systems leads to predictable and depressing outcomes. Three things should never be seen made--laws, sausages, and criminal justice data (h/t Crim Prof Blog). . . . Long article today on the "unexpected" budget impact of WI's legislature requiring GPS monitoring of sex offenders and increasing their penalties. This is just silly on stilts. I have some very biased opinions about the level of seriousness in WI to deal with the fiscal tsunami that's facing the state so I'll limit my comments to fact rather than opinion. WI has a legislative committee that is required to consider costs of any proposed crim just legislation--it's never met, and certainly not on this policy. It has a sentencing commission specifically mandated to help develop cost information--neither commission nor staff was consulted on this. In the '90s, the state went to 100% of sentences followed by sentences to "extended supervision" which have proven as long or longer. (At the time the legislators claimed what they do now--"we just had no idea what the costs would be," except then as now other states doing the same thing that did know what would the costs would be were just phone calls away.) To combat the impact of their 100% nonsense, the commission was supposed to develop guidelines to reflect appropriate sentences--it adopted guidelines that in their provisionary form were universally derided and almost completely ignored by state judges (which was okay because they deliberately had no accountability built into them at all). Those guidelines were the commission's only substantive action in three years of work. All this while, by officials' own admission, parts of Milwaukee are coming apart reminiscent of Detroit and DC at their worst. Here comes one mild opinion (so imagine what the worst are like)--right now it's a race between CO and WI to see becomes the next CA.

Tuesday, September 19, 2006

Around the Blogs 9-19-06

Both Crim Prof Blog and Doug Berman found this CA story on the "clock ticking on overcrowding" in CA. Along with all the other problems there, looks like we may be getting into 8th Amendment "cruel and unusual punishment" issues. Good discussion of the intractable politics we've called the "Gordian Knot" that forms our "California Challenge." Haven't heard anyone come up with better for that situation than what we've put up here. Still waiting. . . . Talk Left refers us to an FBI report that marijuana arrests reached an all-time high (!) in 2005 and that 42.5% of all drug arrests were for the drug (with 88% charged only with possession). Draw your own conclusions about triaging of scarce (about to be scarcer) resources. . . . And from Prevention Works, the blog of the National Crime Prevention Council, we are reminded that October is the 18th observance of Domestic Violence Awareness Month. You'll also find a nice link to their foremost publication on the topic plus the national hotline number for anyone you know who might need it. . . oh, hell with that--1-800-799-SAFE (7233).

News of the Day 9-19-06

Who said prisons weren't good for anything but warehousing? A joint Geo Washington U.-U of VA study found that US prisons are "major breeding grounds for Islamic terrorists," with state and jail folks too broke to stop it. Lack of well-trained Muslim chaplins is the main reason, leaving inmates, contractors, and volunteers to pick up the holy task. . . . Yet another Fed report on increasing violent crime (up 1.3% in 2005), although rape fell 2.2%. Unclear yet if aberration or trend, but we've talked before about how ominous this is for corrections and sentencing policy if history is a guide. . . . End of an era? MADD is apparently closing operations in several states, including AK, as contributions go other places, like Katrina relief. . . . In FL, the state supreme court hammered a judge with 14 admitted ethics violations, including ordering a probationer to church, jailing a woman who forgot her address, getting hunting trips from lawyers, and telling a woman in open court that she "need to close her legs and stop having babies." Living in OK right now, we suspect this judge was in OR last weekend reffing college football. . . . The redoubtable Kevin Pranis from Justice Strategies has released a report through the Justice Policy Institute finding slow progress in MD in implementing the governor's non-violent offender reentry program. Not to say MD isn't trying. Admissions to court-referred treatment 2000-2004? Up 28%. Sentences to prison? Down 7%. As always happens, though, the economic turndown took out funding for intermediate punishments first. Kevin recommends $30 m. more for FY2008 to catch the program back up. . . . In MI, local residents in two mainly African-American communities have forced closure of DOC rental homes used for offenders in the state's Prisoner ReEntry Initiative. . . . CO's prisons are so backed up, they're sending 1000 more inmates out of state, mainly to OK, which appreciates the revenue, believe me. Time for a sentencing commission? Is CO the next CA? . . . We'll close on that cheery, and scary, thought.

Monday, September 18, 2006

Around the Blogs 09-18-06

Crime and Consequences points us to a Sunday Telegraph article we'd all like to write. It nails "indulgent" parents for their children's participation in crime. A study in New South Wales (that's in Australia) found almost 10% of children born in 1984 had been convicted of a crime by the age of 21 and hammers the parents and Dr. Spock for "creating generations of brats with a criminal bent.(!!)" I didn't know my family was from Australia. . . . Crim Prof Blog cites a new story on the Delancey Street restaurant project in the LA Times. A really good program that deserves this regular emphasis. . . . And this isn't a blog hit, but I didn't want to do a single News of the Day. Still, this story on how cocaine craving might be reduced by an epilepsy drug is worth your time. Remember that "technocorrections" post below???

Anticipated Consequences

Back when every state and its grandmother started banning my Actifed from shelves to get the home-grown meth labs de-supplied, Jim Pingel, the WI commission deputy director at the time, and I speculated what the impact would be on actual meth availability and who would deliver it. We concluded that the likely result would be that, with local entrepreneurs out of the picture, the usual suspects in drug trafficking would up their ante and, if we were really lucky, gangs would jump in like they have other drugs.

Boy, we were good.

(Another meth story today. Science Daily summarizes a Brown University study showing how meth use restricts fetal growth, complementing earlier work on cocaine effects. Jim and I would have predicted that if given the chance.)

So You Want to Structure Sentencing? Part V

Special Cases: Part V takes on the special case of Re-structuring a sentencing process that is widely viewed (by judges especially) as in need of reform, and attempts to knit together some points from previous blogs.

Previous posts in this series have largely started from the point of view of policy makers considering structured sentencing for an indeterminate sentencing system, by definition loosely structured with wide discretion for judges and corrections officials. But what about structured sentencing systems that are considering wholesale re-structuring? What special problems occur? Let’s take the examples of the federal U.S. guidelines and California (I am not suggesting that there is agreement among all parties favoring re-structuring, only that it is widely discussed).

California. We have discussed the challenge facing California (See California challenge series). California’s structure is a form of legislatively-enacted guidelines. Roger Warren, in his comments before the Ca. Little Hoover Commission (here) discusses the most pressing need in the area of correctional reform IS sentencing reform, including a reform of the complex, “Byzantine” criminal code and other problems that hamper judges. I might add that a cursory look at the California statutes suggests to me that judicial discretion to tailor sentences is sharply limited, leaving little room for consideration of, for example, offender prior record as a predictor of future public safety risk (See also Tom McGee’s comments on Part IV of this series and elsewhere – thanks Tom, for presenting an interesting view and proposed general remedy). Of course, the exception that proves the rule is the draconian 3-strikes law which brings the house down on the heads of selected defendants so convicted.

Federal guidelines. The latest issue of the Federal Sentencing Reporter (intro by Frank Bowman here) takes up the Constitution Project’s Sentencing Initiative (CPSI) and its call for reform of the federal sentencing guidelines. In particular, the CPSI calls for simplification and flexibility, finding the federal guidelines too complex and inflexible in comparison to other guideline systems. Bowman outlines the working group’s criticism of the existing system and its proposed remedy. Clearly a thoughtful group whatever your position on the issue.

Yet reforms (or re-reforms, rather) in both California and the federal system face major obstacles. Recent posts have briefly described the obstacles to reform in California (The California Challenge). Regular readers of Doug Berman’s weblog are well versed in the obstacles to the kind of substantive change in the U.S. federal guidelines that CPSI proposes, and the forces that want to re-impose features of the federal guidelines that CPSI rejects.

The Wisdom of Crowds.
I believe that one of the reasons for the intractability of these problems relates to a frequent rant of ours, decent baseline data on past practice (Part I and IV of this series, etc.). Decent baseline data gives system participants much confidence that the reform is grounded on past practice, offering selective changes while minimizing unintended consequences and chaos. “Hold On!” you say. California and the USSC have excellent data, at least on sentences. But therein lies the rub!

The recent historical data on California and federal sentencing practice reflects data on sentences that were TIGHTLY CONSTRAINED in actual practice, and do not reflect what judges believed was the right thing to do in at least a subset of problematic cases (or perhaps whole classes of cases), rather what they were required to do. Extending the recent post, Sentencing and the Wisdom of Crowds, the wise crowd in this case is the large body of judges, and what they thought a fair sentence under a discrete set of circumstances was. The existing tightly-constrained baselines for the USSC and California are no baseline at all to tell you what the “crowd” thought, only what the crowd was compelled to do.

So what do you use for a baseline (if you're still on board/ever were on board)? The Wisdom of Crowds post, below, argues (rightly, in my judgment) that we have plenty of useful data nationwide on which to build, but California and the U.S. federal systems are exceptions, if you buy my logic. The baselines that exist there are nearly meaningless as a starting point for substantial reform, skewed by tight constraints.

What are the options? (I could use your help here – easier to diagnose than to treat)
(1) Start from scratch. In essence, blow up the existing system, and go back to a highly discretionary system for at least a couple of years, allowing the judges to speak with unfettered voices. This solution, which best captures the “wisdom of crowds,” looks implausible politically. How can we expect policy makers to admit so publicly their doubts about the system that they and their predecessors devised? And probably many do not harbor such doubts.
(2) Conduct thought experiments and sentencing councils. Collect experts (judges, for example) and use short hypothetical cases (vignettes of crimes) to discover the group mean sentence without reference to the tightly constrained structure. Sophisticated variations on this approach have been used with a random sample of citizens too (US Sentencing Commission’s 1997 Just Punishment study) and recent work by Mark Cohen, (here). However, as I previously argued in Part I of this series, it is very difficult to simulate actual circumstances and actual decisions, and is probably no substitute for actual historical sentences.
(3) Proceed incrementally. Probably the most likely approach, also flawed given the difficulty of making landmark substantive change incrementally. Pick your battles. Look for evidence to support structural and procedural change (e.g., problems caused by undue complexity), and evidence to make piecemeal change to particularly problematic crime categories etc. But if the structure is the problem, how far will incrementalism really take you?
(4) I’m out of ideas – how about you?

The bottom line: Sentencing structures have substantial inertia, and re-structuring a system that is 20-30 years old and has already constrained earlier forms of substantial discretion may be harder than structuring as age-old system that appears “unreformed.” The old line “If it ain’t broke, don’t fix it” will be echoing through the legislative corridors – and an ironclad case for “yes, broke” is almost surely necessary.

Saturday, September 16, 2006

So You Want to Structure Sentencing? Part IV

Part IV discusses the concept of developing a baseline, in this case a baseline of current and past estimates of time served on sentences. It follows up on the discussion in Part I of this series on the importance of baseline data to guide current/future decisions. The Virginia Sentencing Guidelines provide a historical example of the importance of time served estimates.

Part I of this series argued that decent baseline data is fundamental to any sentencing and correctional reform effort, such as a restructuring of a sentencing system. Sounds like a dry-as-dirt topic, right? A closer look at time served on sentences is nonetheless essential, and not as dry as you might think.

There are a couple of reasons why relatively accurate estimates (they are estimates after all, and obsessive/compulsive types sometimes don’t understand the concept of “estimate”). First, increasing time served on sentences is one of the major causes of prison population growth in the U.S. Second, resource-intelligent policy is needed that targets certain offenders (those we are “afraid of,” as the saying goes) and considers alternatives for less serious but chronic offenders (drug addicts, public nuisances, etc.) whom we are primarily “mad at” (to finish the cliché). Conserving resources means limiting time served in expensive prison institutions for some classes of offenders that have historically gone to prison.

Elementary Observations
As Tonry and Petersilia argue in Volume 26 of Crime and Justice (here), the direct causes of the past quarter century’s increase in imprisonment are not changes in crime rates and patterns, but rather changes in sentencing and parole policies and practices, including increased sentence lengths and time to be served on past (e.g., tougher parole board practices) and present (e.g., abolition of discretionary parole release) sentences. We have previously argued that prison population projections are necessary to good public policy in the field of sentencing and corrections.

Any serious effort at reform must begin with a recognition that carefully targeted policies, one’s that distinguish those we are mad at from those we are afraid of, is central to intelligent sentencing and corrections practice. Therefore, expanding the time served on ALL sentences without regard to these distinctions leads to rapid growth in prison populations without necessarily increasing our safety. Extreme example -- if we put everyone in the crime-prone age group (e.g., 15-24 years of age) we would be safer. But at what cost! Would we be safer 10 years from now?

Definitions and Methods
A 1999 USDOJ/BJS study of sentences imposed and time served in prison by cohorts of offenders entering and exiting Federal prison highlights the importance of time served calculations on Structured Sentencing reforms. The study provides a useful methodology and definition:
“The measures of time served are defined for the cohort of persons entering prison during a year and the cohort of persons released from prison during a year. For persons entering Federal prison, time to be served is measured by expected time or the number of months that an offender can expect to serve until first release. For offenders released from prison, time served is measured as the number of months actually served, which is the difference between the release date and the commitment date plus adjustments for jail credits.”

This sort of analysis is not for the faint at heart, and accommodation to the analytical limits is required. For example, calculating the time served on existing releases is hampered by several factors. First, you may be moving across databases, “finding” a cohort of sentenced offenders in DOC and Parole Board data. That means matching cases across possibly poorly compatible datasets (I have experienced this problem first-hand, and it severely compromised our work for a time). Also, chronic and repeat offenders frequently serve time on more than one charge, those charges may be concurrent or consecutive, and your DOC’s data on time calculations may be quite difficult to sort through. How much time was served on a particular sentence? What about credits for street time, pre-trial credits, time served on other sentences, etc.? These problems almost surely require compromises, and estimation at somewhat broader levels than one prefers. The alternative is chaos – don’t go there.

Is the Juice Worth the Squeeze? An Virginia Example suggests it is.
There are many success stories that suggest this effort at estimating time served as a prelude to future action is worthwhile. I am closely associated with the effort in the mid-1990’s in Virginia, so I will speak from experience using this example.

In 1994, the incoming Virginia Governor was determined to abolish discretionary parole release and “get tougher” on violent offenders. Many proposals were discussed. The existing Virginia Sentencing Commission, its past and future director, Dr. Kern and its chairman (since retired, Judge Gates), were determined to preserve as much of a successful structured sentencing scheme in place statewide since 1991 as possible. (The full story is presented by Rick Kern here, pretty much, starting on slide 14.)

Negotiating with the new administration, they convinced the administration that the existing guideline structure should be preserved, and that the recommended guideline ranges could be adjusted to reflect no-parole policies. Getting back to Smart Policy, they further argued that announced sentences in Court for non-violent offenses should be REDUCED to account for the abolition of parole release (net effect=0, as these offenders would served on average the same time as they had before, without discretionary release, but would have supervision after release to preserve the valuable function of post-release supervision), which required a calculation of time served on past and present sentences. The tradeoff was that violent offenders, especially those with violent prior records, would see sentences ratcheted up, given their greater risk to the community and higher punishments which policy makers wanted to see for violence.

The Virginia staff worked with the Va. DOC to prepare time served estimates by offense. Working from these estimates, all sentencing guidelines for non-violent offenses were ratcheted down, and policy makers understand that on average these offenses would receive the same effective punishments in the future, as time served was not changing. Sentencing guidelines for violent crime and prior violent offenders, the crimes and offenders that policy makers (especially the incoming Governor) were most concerned about, were systematically analyzed, and the Sentencing Commission staff ran various scenarios beginning with time served adjustments for violent crimes and then targeting increase in effective time to serve, based on policy maker preferences. The final scenario, and resulting guidelines, did result in more punishment, but not for non-violent offenders. Later, the Virginia Commission embarked on an effort to develop alternatives to prison for these crimes.
This Virginia strategy has not eliminated prison population issues, but it certainly forestalled them and prevented more serious problems that a naïve approach would have inspired.

Sentencing and the Wisdom of Crowds

One of the major justifications given for developing sentencing guidelines has been the diversity and resulting disparity of sentences produced by judges for similar offenders committing similar offenses. A common practice in a state considering guidelines has been to bring a bunch of judges together (sometimes with prosecutors and defense counsel), give them all some real or hypothetical cases, and then ask them to pronounce sentence. Inevitably you would get some bizarre outliers, the same sort you would see examining real sentencing data. Based on these outliers, a case could be, and often was, made that greater uniformity was necessary and thus sentencing in that state should be more structured.

It's difficult to argue. Due process, equal protection, just basic decency--all require that offenders of a similar type receive similar sentences for similar offenses. But, in making everyone wear a diaper because a couple of people pooped, I wonder it we didn't miss the real significance of those exercises. How many of the scenario sentences were the same or very similar? That was rarely reported or even considered. There are outliers in almost every thing, hence the term. (Hence, Salma Hayek.) But maybe the real news was the usual sentence that most of the participants got close to.

A few years ago James Surowiecki published a book called The Wisdom of Crowds. While not universally convincing, he made the case that collective judgments frequently (perhaps usually) surpass the estimates of experts and professionals on topics. The usual example is the "guess the whatever" at a fair--the number of jelly beans in a jar, the amount of pennies in another jar, the weight of the fat guy. While any one guess was likely wrong (and some would be notable outliers), the average of the guesses, given enough people, was usually very close or even exactly right.

The sentencing scenarios were really "guess the sentence" games, telling us as definitively as practiced judgment could what a proper sentence was. In many cases, those sentences or ranges off them formed the basis for the eventual guidelines in the state. (In practice, such as in MD, what often happened was that a small group of judicial leaders became despondent, took the results into a room, and came back out with what they said the proper guidelines should be.) But the results tended to be sold based on the idiocy of the outliers, not on the wisdom of the judicial crowd. So, we lost an opportunity to build a foundation for the study of sentencing on reiterations of reiterations of these kinds of sentencing experiments around the nation to develop national professional parameters for sentencing.

If you think about it, our current sentencing data, by state or collectively as a nation, is a giant "guess the whatever" exercise for correct sentences of similar offenders committing similar offenses. Especially in states with commissions created in part to develop sentencing data bases, we've developed a massive amount of collective experience, "wisdom of crowds." (The irony is that, the more structured and prescriptive, the less valuable unless the guidelines were those based on the exercises instead of "top-down" policymakers or those self-assured judges coming out of the room.) What I would like to propose here is that we take this collective wisdom out for a spin.

We have the data now, and funding sources seem to be coming online, to actually pull together our sentencing guesses and to build on their "wisdom." All states, commission or not, if they have the data available, should now agree to partner in data sharing and pooling to generate "crowd" sentences for their similar offenders (however minutely defined within this gigantic data set) and then to analyze the offenders' subsequent recidivism, violence, or other public safety concerns. We could also do a much better job of replicating on a national level the cost-effectiveness work of the Washington State Institute for Public Policy. In fact, the foundation dollars now moving forward could either create a national sentencing WSIPP protected in a university or expand Vera for the function to do exactly these kinds of national studies. (I would go further and create a national board of professionals similar to a Cincinnatus Committee discussed in my California Challenge in earlier posts to vouch for and buffer the results to give them legitimacy, credibility, and protection, but others may feel that an unnecessary step.)

In any case, it is clear that our available pools of sentencing data contain enormous untapped potential, years and decades of "guesses" that, if Surwiecki is right, could guide effective policymaking at a time when some violent crime seems to be increasing again (assuming anyone really wants to make effective policy). As I mentioned, some of the most effective commissions have founded their guidelines precisely on this notion, killing off outliers (statistically) and taking interquartile ranges or one standard deviation each way from the mean as their recommended sentencing ranges. Plus, the arguments for linking sentencing to demonstrated data would be even stronger, even for states scared of or unimpressed by commissions and guidelines.

What do you think? Let's "open source" this, a definite "wisdom" approach. How could we frame this to get it going, get the necessary funding and support? The floor is open.

Thursday, September 14, 2006

So You Want to Administer Sentences?

So You Want to Administer Sentences?

Around the Blogs 9-14-06

Doug Berman at Sentencing Law and Policy has been firing on all cylinders lately. One post of particular interest to our topics here discusses Chinese computerization of sentencing, with judges entering case elements and popping out the sentence for them to standardize decisions. Doug is absolutely right that this is a logical end product of the guidelines movement, despite our sincere "oh, no, not really"s to judges, and, in my almost dozen years in the field now, I've been seeing more and more momentum in that direction. I'm a strong advocate of producing better info for sentencing decisions, but as a means to differentiate and tailor sentences rather than blanding them out to a few key (and usually inadequate) variables. Nevertheless, I'm uneasy about where even that might lead, given pressures for uniformity, eliminating disparity, and controlling costs. I don't think we're ultimately going to be given an easy "either-or" on this. It will take cautious and open minds dealing directly with the question to balance this "mcdonaldization" of sentencing with our traditional values of due process and justice. We cannot simply leave it to policymakers pressured by budgets, headlines, and ambitions, or China's present may someday be ours. . . . Crime and Consequences has a couple of quick news notes, pointing to a NJ study on the costs of capital cases (about $11 m. there) and comparisons to other states and also a reference to that VA castration story I cited yesterday (which should pique your attention if you missed it). . . . Peggy Ritchie at NIC's blog, Corrections Community, has a couple of informative posts up, one a very link-rich piece on working with homeless released offenders and the other pointing to the recent SAMHSA release of its annual National Survey on Drug Use and Health. Don't let registering with the site turn you off.

News of the Day 9-14-06

Only a couple of items of today. In TX, Independent gubernatorial candidate Kinky Friedman has called for decriminalizing marijuana as a way to cut use of prison space for non-violent offenders. Will get him some votes and lose him some. Wasn't likely to win, but there are four candidates on the ballot there and anything that can draw new, usually uncounted-in-polls voters to the polls can sometimes yield unpredictable results. Witness Jesse Ventura. Wait, on second thought . . . . And in Britain, a call for tougher education and other methods to reduce alcohol and tobacco consumption after a panel of doctors and scientists reviewing school-based programs around the world found their impact "slight or non-existent" and maybe even "counterproductive." So, let's do more, huh, just harder . . . where have we heard that prescription before?

Wednesday, September 13, 2006

Lysistrata--The Ultimate Crime Fighting Strategy

BBC report on Colombia. (Let's see the Little Hoover Commission in CA recommend this.)

So You Want to Direct Sentencing Commission Research? Part II

The second of a two-part series. We're inviting participants in sentencing commissions to contribute their perspectives in an ongoing dialogue with our readers. In this series David Wright, former Director of Research for the Oklahoma Criminal Justice Resource Center, which staffs the state's commission, talks about being a research director, particularly the hows and whys of sentencing databases. We hope that other participants will use this as an opportunity to share your views and knowledge in the future. The first part started a listing of the requirements for doing good commission research, focusing on good data. This conclusion continues that discussion and examines the other requirements.

The Research Director and staff should know and acknowledge database weaknesses and limitations. This should be done in all work as part of the up-front methodology. This should involve discussions about why the limitation(s) exist, which may not be a fault of the research staff and may really be beyond the research staff’s capabilities or duties, such as weaknesses in the criminal justice system. Documentation should also show what is being done to improve or address the limitations. In this methodology section, it is also important to list the database/methodological strengths and to build on them. I highly recommend developing a list of strengths and weaknesses revolving around assumptions made about the database so that everything is documented. This process should make it easier to avoid over-stating your findings and conclusions. It should make it less likely for the data to be over-generalized. Because of the data and research limitations, avoid leaps of logic from statistical data or findings, to statements or policy recommendations that the finding is specifically and directly caused by something, or that even make it appear as though something were a direct cause (unless, of course, there is a direct cause and effect).

It is not necessary for the data in the Commission database to include every case for the information produced to be valid and useful, especially in the case of research reports or analyses of trends. Focus should revolve around patterns and percentages and not individual counts. Nevertheless, there will likely be criticisms that the data are incomplete or inaccurate without an accounting of all cases. Ideally, it would be good to collect all cases, especially for prison population projections.

In attempting to develop a comprehensive analysis of sentencing practices, it is necessary to move beyond strictly sentencing data and consider the broader criminal justice system. Crime and arrest data are of particular relevance to the sentencing practices of the state, as they influence or determine the possible felony conviction pool. Crime and arrest data should be easily obtained from the state’s bureau of investigation.

With regard to the Commission’s database, it is important to guard against Commissioner’s selective use and interpretation of data. These types of Commissioners want to have it, the data and analysis, both ways. These Commissioners will bash your information as bad data or research when it does not back or support their positions and will endorse the database and information when the information ends up supporting their opinions.

The data are the foundation. It really does not matter how good the staff, the research director, or the reports (quality and layout) are. If your data are not good, it will bring down or hold back the whole Commission.

Relevant Research
Following striving for high quality data, a critical element to being a successful Research Director for a Commission is making the research relevant. This can be accomplished through several methods. First, select timely topics to research. A few influential Commission members could help you develop an agenda, which could then be approved by the Commission. This will provide you with cover as you work on the topics, as well as giving you direction from someone other than yourself, the research staff, or the Executive Director. This will allow you to avoid “losing” research topics (death penalty) and hopefully will provide you with some topics you can “win” or at least will give you cover.

Secondly, research and analyze topics that are critically important, such as legislative bill impacts and prison population projections. This will ensure an important policymaking audience, which will be reminded that the Commission is vital. With this audience in mind, keep the reports, presentations, or messages, short, simple and straightforward.

Third, consider your message, style, and delivery and remain neutral. Often times the research speaks for itself and allows you to avoid the risk of seeming or becoming an advocate for a particular position. Remaining neutral will also assist you in not being confrontational and building a cumulative opposition. At some point in the sentencing research there is a point of diminishing returns. The longer you have your job, the greater chance you have that you will offend someone. Eventually, you may offend everyone. However, the research results should be presented in a manner that revolve around the question or hypothesis and why it is important and not a particular slant.

Finally, all analysis, research, and/or data should be filtered and/or reviewed prior to release. It is advised that the Commission and/or host agency have a data release policy and/or information request policy. Then make sure that requests are in writing. Have all information used to meet that request go out only after it is packaged. Anything released can come back to haunt you. You should consider anything that leaves the office, particularly something that was originally requested, open for criticism and critique. Often times you may not even know for sure how the information you released is going to be used or who else will also end up receiving it. Consequently, it is important that the information is accurate, objective, and packaged in a non-offensive manner. Follow-up is advised in order to see how the information shared was utilized and to see if it was re-packaged. Once a positive relationship and a high comfort level is established with the requestor of information, then the follow-up and feedback should become more routine.

Stupendous/Superior Staff
Another important element in producing quality data and reports is the staff, which should be very resourceful. A staff person who can serve as the database manager and provides database maintenance and data cleaning is critical. This person should have the ability to perform matching and merging of databases including the Commission database and others, in order to combine multiple years of information and to link with other databases. This will allow the opportunity to perform longitudinal research, as well as enhance the ability to compare and analyze additional data sources.

The quality of the data and the research will also benefit from having a statistician or someone with a great deal of background in statistics. Ideally, this person will also have the analytical abilities necessary to truly analyze and make sense of the data. This will involve turning the data produced from a statistical package, such as SPSS, SAS, SQL, Access, or Excel, into straightforward, simple, but useful reports and information examining sentencing practices. The goal should be to develop professional data-driven research that is relevant.

Tons of Time
One factor that you will need as Director of Research for a Commission is time, ideally, three years. This will give you and the research staff a chance to develop experience and expertise. Time will provide your staff with the opportunity to learn from mistakes and implement adjustments. Three years will give the Executive Directors and the research reports some time to have a chance for the messages to sink in and for, at least, incremental changes to occur. Ultimately, time will give you and the Commission a chance to build credibility.

Conservatives, liberals, democrats, republicans, the lock ’em up and throw away the key types and the give everyone a second chance types, will all want you to run numbers that will support their position and agenda. The temptation, especially as a new Commission or Research Director, is to try and please everyone by giving them what they want. This seems particularly to be the case because anytime you are producing numbers, making presentations, and performing program evaluations that people do not agree with. They will criticize the data, the methodology, the research, and ultimately you. People want “your” numbers to support their side. When they do, then they love you. In other instances, when the numbers do not support their side, then you are wrong; you are at fault in some manner. These types of people will speak out of both sides of their mouths and want it both ways.

What you have to remember is to test hypotheses, trends, etc. Force requestors to put their requests in writing. It will make them state what they are asking and what they want to know; what they are trying to find out. Once the information they are hoping to find has at least been turned into a real research question - a hypothesis - then it is a matter of assessing its testability and its researchability.

I have often heard it said, from prominent legislators, that criminal justice and sentencing in particular is the one arena where legislators believe that they are the experts and what the practitioners (judges, district attorneys, defense attorneys, etc.) and real experts (i.e., researchers, corrections officials, scientists, etc.) say does not matter - that it will not influence policymaking. While there may be more truth to this statement than I would care to believe, I think that the suggestions described in this chapter will, at a minimum at least, allow and/or increase the possibility for there to be a link between research and policy.