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.

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