Monday, September 11, 2006

So You Want to Structure Sentencing? Part III

Part III of the Series begins a conversation (we hope) regarding the respective roles of the Court and Corrections. Just to recap, we’ve talked a lot about Sentencing Commissions and some about structured sentencing (e.g., Part II: To Grid or Not to Grid).

One of the biggest issues in structured sentencing systems is the respective roles of the Courts and the Corrections system – a question that goes beyond whether or not to opt for a system with discretionary parole release and gets into some interesting questions involving community sanctions. (By the way, I’ve been away for over a week – you probably didn’t miss my irregular presence since Mike is so dependable. For my part, I'm trying to blog-walk before I blog-run.)

Discretionary Parole Release, or Not
In the indeterminate sentencing world, judges had great discretion over the broad question of whether to incarcerate or not, but only a limited role over the length of incarceration, which was mostly the purview of the Corrections officials through “good time” and parole release decisions. Again, this hasn’t changed for many jurisdictions in the United States who still adhere to the indeterminate model.

With federal encouragement, in some cases encouragement is far too weak a word, so-called Truth-in-Sentencing initiatives (determinate sentencing) took effect in many states and the District of Columbia. The role of corrections in time to serve on a prison sentence is sharply reduced, that of the Courts often greatly expanded.

Structured sentencing systems/guidelines exist in both determinate (MN, WA, KS, NC, VA, DC, etc.) and indeterminate (PA, UT, MI, MD, etc) settings. Obviously, in general the judiciary has a greater role in the final outcome of prison sentences in determinate settings, where the parole board is largely relegated to the aged inmates with long sentences (most others were long ago released), and corrections officials have sharply reduced discretion w/r/t good time.

With regard to prison sentences, the choice is certainly in part philosophical. I personally believe that the announced sentence in Court should bear a close resemblance to the likely final outcome for both the victim and the defendant and their families, but well-reasoned arguments are available with regard to the value of discretionary release, especially for inmates with long sentences who have shown demonstrable progress along cognitive-behavioral lines.

The In/Out decision and Community Sanctions
In my view, the really interesting overlap between corrections officials and sentencing officials occurs in the In/Out decision, particularly the decision not to use traditional incarceration for an offender, but rather some form of community sanction. Community sanctions operate on a continuum of surveillance and custody features from traditional probation (limited surveillance) to day reporting centers (more surveillance but no custody) to electronic home incarceration or residential treatment in secure facilities (at least limited custody and substantial surveillance) and so on.

An overlap in the respective roles of the Courts and Corrections relates to how much discretion each party has in responding with incentives and sanctions to offender successes and failures while under community correctional control. For example, community supervision/surveillance contracts routinely stipulate the system’s likely response to violations of the contract and give probation officers some leeway to respond immediately to minor violations without taking the case back before the judge. However, judges are usually required to violate an offender and impose 24 hour custody. I think it is fair to say that Drug Courts typically give judges a more active role in responding to even minor violations, decisions that in other systems would be the province of probation officers.

Our friend, Adam Gelb (now with the Pew Trusts working on Corrections and Sentencing issues), while working for the 2002 Georgia Commission on Certainty in Sentencing, proposed an intriguing sentencing guideline scheme. Under this proposal, judges directed the initial sanction level, and authorized the highest authorized sanction (a sanction cap), but gave correctional/probation officials substantial latitude to respond immediately to problems within those limits (the Certainty in Sentencing). This corresponds well to criminological literature that demonstrates that certainty more than severity is the key to controlling criminal behavior. The virtue of such a scheme is that it gives judges, in open Court, the ultimate control within broad limits, while allowing corrections officials to take care of the details when they are in the best position to exercise this control with teh necessary speed.

So in conclusion, any structured sentencing scheme is going to have to address the respective roles and limits of Courts and Corrections. A careful review of the operational limits and broad social responsibilities of both groups is needed to implement a just and workable correctional system.

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