The California Challenge II: Gordian Knots, Cincinnatus, and Frankel's Commission

Part II of a two-part series.

In the last post I proposed that we try an experiment here in “open source policymaking.” Like software that receives continuous improvement through “open source” refinement, we’re going to take a proposal and see if we can generate enough serious discussion of it to refine it and make it something workable for our good friends in CA who are looking at one of the most intractable policy problems I’ve ever seen in over three decades of policy work and study.

I know I’ve scoffed here a couple of times at CA’s ability to get its correctional/sentencing house in order, even if it were to create the sentencing commission now being considered. However, there are a lot of good folks at a lot of good places producing a lot of good work on the problem lately, so, as I thought about “open source policymaking” and possible applications, I decided to review and rethink my initial reactions.

I read as much as I could get my hands . . . mouse on regarding CA’s sentencing and corrections reality, from the state’s Public Policy Institute, its Little Hoover Commission, its Stanford Criminal Justice Center, its California Performance Review (which may have the most appropriate acronym I've heard since I had to do Managing For Results in MD). I read the testimony of exactly the right people under the circumstances, the people who’ve made commissions work in their states. I read the newspaper stories of corrections, budgets, and policymakers. And I came to this conclusion.

They’re irrelevant.

CA is now its own case. A determinate system with indeterminable politics. Unlike any other system ever considering a commission and guidelines. A corrections crisis on crack, and with the same probability of recovery without hard-core, long-term treatment. (“No, no, get away. I’m still good. Got it under control. Haven’t sold the wife’s wedding gown yet. Go away. I’m cool. Is it hot in here?”) If you know your ancient history, we’re talking political Gordian Knot here. Actors and groups all convinced their perspectives and interests equal the entire state’s (or not caring if they don’t), all tied up and intertwined and rained on and hardened into a ball that will not unravel in any traditional way.

It’s not that none of what I read, none of all the hard, well-intentioned work, is without value. But trying to fit the circumstances of MN or VA to CA? I’m sorry. Even NC, which had more in common, was a mere 90-lb. weakling to the Hulk Hogan CA faces (the bad one, not the good one). And NC had an extraordinary judicial leader who short-circuited a great deal of the traditional commission problems and reticence. Anyone got the name of the CA equivalent?

That’s not to say that I think nothing can be done to solve the Knot problem. It’s not even to say that I don’t think a sentencing commission could be a big part of the answer. But it will take a commission unlike any we’ve yet seen (MN and VA are probably the best replicas, in much more limited fashion). It will take the commission Judge Marvin Frankel originally proposed in Criminal Sentences. That is, one we’ve never really tried. One that can apply the same solution Alexander the Great did. Forget untying the damn Knot. Can’t be done.

It’ll take a sword.

Recall that a major power of Frankel’s commission was to actually propose sentencing rules that the legislature would have to expressly reject or they would go into effect. He was deliberately vague on how extensive this “rule-making” delegation to a commission would-be, but a couple of states got it done a long time ago, just not on the scale I’m about to propose. My point is that the concept offers an out to CA policymakers, who will then benefit from the traditional use of commissions/advisers to do the dirty work that politicians who wish to be reelected can’t afford to do.

Humor me just a little longer, please. Let’s say CA officials finally realize they have a Knot and decide that they have to do something more radical than anything currently proposed. I mean, say they do create a sentencing commission. Mere creation of guidelines, even prescriptive ones as recommended, will take time and generate the same dysfunctional and lethal politics that have them at their present impasse. IOW, unlikely to be any more successful than anything else they’ve tried, as I’ve hooted before. Just a CA-sized failure for the history books.

But now try a variation on Frankel’s fugue. Create a sentencing commission and delegate it Frankel’s rule-making authority. Have an increasingly desperate legislature agree that, unless/until it overturns the commission’s rules, by a set super-majority like 67% or even 75% (OK requires that high a number to pass a tax increase), the rules will apply. For added strength, you could subject a legislature’s rejection to governor’s veto and override provisions. You would have sentencing provisions still subject to democratic officials, but, as with constitutional amendments, not as easily to super-heated, simple majority rule.

No good, you say? A sentencing commission would be filled with agents of all the loud constituents who would block meaningful reform? Not necessarily. Let us return to the days of yesteryear. In the early days of the Roman Republic, when its squabbling policymakers couldn’t work out consensual responses to potential demise, it twice called into service a farmer named Cincinnatus and gave him unlimited power to deal with the crisis. I know what your immediate thought just was and slow down. I’m not going there. Well, only a little. What this process needs is a Cincinnatus Committee, a body of professional experts in policy who would come forward (presumably not from plowing as Cin did) for a one-time effort to create a commission specially selected to address the state’s needs, not the needs of the components of its criminal justice process.

IOW, what if the commission is selected by a non-partisan national board funded by a non-partisan non-profit (Hewlett? A Philly non-profit, perhaps?)? What if that board is made up of one rep each from professional organizations like the American Correctional Association, the American Probation and Parole Association, the American Bar Association, the National Association of Sentencing Commissions, the National Center for State Courts, the American Society of Criminology, the American Society for Public Administration, the National Conference of State Legislatures, the Council of State Governments, and the National Governors Association? What if these folks were required to choose as their 11th member and chair a national figure of demonstrated experience with chairing sentencing commissions, like Judge Thomas Ross of NC or Judge Andrew Sonner of MD? What if this board designed CA’s sentencing commission and its membership with an eye not to system constituency balancing but with demonstrated authorities such as researchers and practitioners meeting highly specified criteria and subject to removal for inattendance and obstruction? What if the new commission then created non-severable rules that the legislature and governor would have to take extraordinary action to stop?

Now CA policymakers would have a buffer and scapegoat. Now serious attention could be given to who should be receiving what punishments and where and how. Now the powerful constituencies with self-oriented issues would have to present their cases without their historic levers of political influence. Now the rational and consistent patterns of sentencing and punishment envisioned by Frankel might actually happen.

Still no good, you say? With CA’s initiative process, the powerful groups will just get anything they don’t like overturned at the polls? Would they? This would be a nationally publicized effort that could serve as a model for other states with similar, if not as extreme, problems. Powerful and sophisticated external sources could be tapped to support the commission, and the Cincinnatus Committee would still be available to adjudicate the claims made in the campaigns. (In my wilder dreams, I see this kind of committee doing the work of developing and selling sentencing reform and of buffering commissions and other bodies from political attack and demogoguery. This tells you more about my dreams that I really should have disclosed.)

Would voters automatically be led by the nose? Very possibly, but not necessarily. A smart commission would spend a great deal of time in public outreach well before the project is launched, engaging the public in discussions of how the public would fund the projected growth of current policies and would reinforce all the areas of criminal justice losing revenue because of all the dollars going into prisons. Selfishly, I would recommend a “deliberative focus group” process which we piloted when I was with the MD commission which emphasizes both education and deliberation. This could be done throughout the state to generate ideas and proposals for the commission to consider, to inform a wide breadth of citizenry, and to ID community leaders who could and would effectively support commission proposals.

Or, how’s this alternative? Include an automatic initiative at the end of 5 years after guideline implementation. That would be enough time to measure and report impact. If the evidence is bad, then, of course, do away with it and return to the old or a newly proposed system. But if it’s good . . . . Would the “anti”-groups pushing an earlier initiative have as good an argument if people were already going to be asked once reality instead of speculation provided the main talking points? Would careful analysis documenting any cost-savings that could be plowed (!) back into other areas of criminal justice and victim prevention be automatically shut down?

I don’t know. Maybe, maybe not. But at least CA would be doing something other than convening discussions and writing recommendations that don’t get done. They’re at the point of “paralysis by analysis” now. They need to put the gun to their head and say, “Do something, or I pull the trigger.” If it’s more prisons, fine. They already know exactly where that will leave them. This proposal gives them a choice, based in part on what their panels and experts have already been recommending. If after informed deliberation, they turn it down and stay with the status quo, it’s called democracy, another ancient concept.

But what I’ve written is not the final proposal. We’re “open sourcing,” remember. Take it now and make it better. No flame wars, please, and nothing that’s not constructive. Please don't just say "the legislature would never go for it." These folks are flailing right now and desperate times often bring forth radical moves. Besides, one of you might come up with a special way to get them to do so, or to go for something someone else comes up with. We know from our contacts with you that you have ideas and experience. Let’s put them to use. There’s no worthier cause in criminal justice right now. We help CA, we help everybody. So let’s do it. Start the comments and challenges coming.

Please don’t make me beg. It’s not pretty.