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 the concluding Part III below, he discusses what he calls administrative sentencing. Thanks again, Tom, for your contribution and for your bravery in inviting comments to your arguments.
Obviously, warning enforcement and offense accountability are not the only functions of sentencing. Risk control and risk reduction have long been public policy issues. But judges are not well placed physically, nor do they have time, and sometimes the skills, to deal with these issues effectively. What’s more, risk is essentially an administrative concern. Correctional administrators cannot fulfill their responsibilities without an efficient risk control/reduction decision-making system.
Risk is indeterminate; by this I mean that risk changes. The very idea of rehabilitation is predicated upon this fact. It is widely understood that an offender’s risk of recidivism decreases with age. Certain program settings and other conditions may increase some offender’s risk, and so on. From a cost-effectiveness standpoint, risk control and reduction decision-making capacity must be located near where offenders are housed, because decisions of this kind are often time-critical.
Yet risk control/reduction decision-making is poorly developed. Understandably the courts have taken a hands-off approach, but legislators and correctional administrators have much more to do in fill this void.
Risk is a probability calculation. There are incentives for over controlling and under controlling. It is better to be safe than sorry. On the other hand, some offenders are a pain in the neck, and it would be nice to get rid of them. What’s more, risk control is expensive and program space is limited. There should be a presumption that statistical risk calculations are correct, unless shown to be otherwise through an authoritative hearing process. It follows that risk control decisions should be made by an independent Risk Control Board or similar body, affording the offender due process. So-called classification systems do not suffice for this purpose. The cost of risk control can be calculated, if differentiated from other sentencing functions. Policy-makers should decide how much risk of various kinds is tolerable, considering cost. The performance of risk control decision-makers and correctional administrators should be evaluated accordingly.
Risk reduction decisions are also dependent on risk calculations, in part. If an offender has a low level of risk, risk reduction deprivations and programming are unjustified. Only those who have a reasonable probability of reaching an acceptable risk level should be subjected to deprivations for this purpose.
Finally, I should note that the distinction between judicial and administrative deprivation decision-making is somewhat imprecise. Bail decisions are quasi-administrative risk control/reduction determinations. Disciplinary matters are quasi-judicial warning enforcement/offense accountability determinations.