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.