As part of our continuing effort to get the experience and perspective of practitioners into general discussion, we asked one of our regular commenters, Tom McGee, to weigh in on his thoughts after having been on the management end of a range of sentences in his career, as he describes in Part I of this three-part series. In Part II below, he gets into judicial sentencing. And, remember, Tom is a brave man and invites comments.
Conceived narrowly and traditionally, sentencing is exclusively the province of judges, sitting in courthouses, and based on information available to them at that time and in that place. Those deprivation decisions that are made elsewhere fall outside the purview of traditional sentencing. This approach worked well when warning enforcement and offense accountability were the State's only sentencing objectives, and deprivations were always framed as institution commitments (restraint-based) or probation/parole placements (requirement-based). Perpetrators are sorted into one category or the other (in or out); both are determinate.
But these two deprivation concepts are becoming passé. For example, they do not differentiate between their two underlying provocations. These two provocations work differently. One is rule-based, while the other is associative. Rule-based provocations have fixed boundaries and result in mandatory deprivations; associative provocations have an open texture and result in deprivations that fall within a discretionary range. What’s more, deprivations are now being graded on a scale, from being highly restrictive to low level of restraints. This traditional ham-handed approach to deprivation decision-making retards the development of modern, sophisticated correctional programming. Probation and parole are becoming outdated concepts. Stone-age tools beget stone-age programs.
When a traditional sentencing declaration arrives in the hands of a correctional administrator, framed as an institution commitment, the bottom line is how long must the perpetrator stay. Declarations of this kind are of relatively little value from the standpoint of programming. For example, a sentence to prison controls the duration of a deprivation, but its level is largely unregulated. Program providers rarely even see a judge’s description of how that sentence was determined, nor does it matter. Traditional sentences are not packaged so that a judge's reasoning can be used to delineate a sophisticated deprivation tool-set. Program providers simply muddle through, paying attention to the bottom line.
Obviously the State has more than just these two determinate sentencing objectives. As I will show in Part III, the others are indeterminate. Without a clear delineation between them, judges and others naturally try to bridge the gap by fusing the two. Untold confusion is the result. Three strikes laws are a good example. An offender’s prior offense history may either exacerbate one’s accountability (determinate), or indicate a greater level of risk (indeterminate).