Monday, November 06, 2006

So You Want to Be a Sentencing Commissioner?

As part of our continuing effort to get the experience and perspective of practitioners into general discussion, we asked Russell P. Butler to weigh in on his thoughts regarding why one might want to serve as a member of a sentencing commission. Russell has experience in Maryland and the federal court as a criminal defense attorney, as an attorney for crime victims, and as an adjunct law professor at the University of Baltimore Law School. My experience with Russell was that he was the most involved and contributing sentencing commissioner I've worked with in 3 different state commissions, as you'll see in part as he describes his work with Maryland's State Commission on Criminal Sentencing Policy. I frequently found e-mails from in the morning when I got to work that were timed during the wee early hours of the morning. (And those times were right, unlike the times you see at the bottom of these posts.) If you can clone your commissioners before getting your commission started, start with drugging Russell. (Just kidding . . . really.) In this two-part series, Russell describes first how and why he got involved in commissioning and then in Part II tomorrow the work and benefit of being on a sentencing commission.

Part I
How I became involved

Since 1999, I have served as the victim representative on Maryland’s State Commission on Criminal Sentencing Policy. Prior to my appointment, I received a B.A. degree in Government and Politics from the University of Maryland – College Park and my J.D. degree from the University of Baltimore Law School. While in high school, I served as a Student Page for the Maryland legislature. In college, I was an Intern to the legislature. Finally, while in law school, I worked part-time as a legislative aide. Throughout this time, I was also involved in volunteer activities on several levels regarding policy related issues including serving on several boards. While in law school, I was very interested in criminal law.

After my graduation from law school, a fellow law student (Kurt Wolfgang) who had served as attorney and lobbyist for the then Stephanie Roper Committee and Foundation (a victims’ rights organization) decided to take a position as a prosecutor and could no longer be the legal director. Knowing my legislative experience as well as my interest in criminal law, I was recommended by Kurt to Vince and Roberta Roper (the founders) to replace him. I was hired, and since 1985 I have continued as attorney and lobbyist and now also Executive Director of the Maryland Crime Victims’ Resource Center, Inc.

In the mid-1990’s, the Maryland General Assembly passed legislation to create a study commission to examine criminal sentencing in Maryland. My then boss, Roberta Roper, was asked to serve on the study commission. During the course of the work of the study commission, Roberta would often ask me questions regarding various aspects of the then existing judicial sentencing guidelines, and I testified on behalf of the Stephanie Roper Committee regarding certain aspects as the study commission received public comment regarding what recommendations should be made.

In 1999, the study commission recommended that a permanent sentencing commission be established to include representatives from each branch of government plus public members including a representative from an organization supporting crime victims. Because of Roberta’s participation in the study commission and her support, the Stephanie Roper Committee endorsed the legislation and I advocated its passage as lobbyist.

Roberta did not want to serve on the permanent commission so when she was asked to make a recommendation regarding who should serve, she recommended me. When the initial appointments to the Commission were made, I was appointed as the representative from a victims’ organization.

Serving on a new commission

Serving on a new commission was often challenging. The Commission had its legislative mandates as well as a number of other non-mandated recommendations made by the study commission. There were a number of persons who never wanted an independent commission, and they wanted the Commission to keep everything the same as when the guidelines were judicial guidelines. The legislation creating the Commission, in fact, required that we adopt the judicial guidelines then in effect.

The Commission created several committees, and I volunteered to serve on the policy committee – the “Guidelines Committee.” The Commission sought to have that Committee balanced so that it would not be dominated by the judiciary, the prosecution, or the defense bar. In reality, this decision was perhaps the best decision the new commission ever made. While often we would be at a stalemate, the Committee had to obtain a consensus before bringing any matter to the full Commission.

Perhaps including because of my legislative drafting experience, I was asked to chair the COMAR Subcommittee. COMAR is the Code of Maryland Administrative Regulations. The legislature amended the legislation creating the Commission, providing that the sentencing guidelines would be adopted as regulations with the force of law.

It was a substantial product to create the regulations. However, it was very contentious over every change considered by the Committee. In the end, there was an agreement to disagree over certain matters. However, because of the cooperation of the Committee members, we were most often able to narrow the issues to avoid posturing. For example, if the Committee could not agree, we would indicate that the offense would be either a category IV or V offense and indicate to the Commission who voted for what. In this way, even if the final result was not agreed upon, everyone came together to make a compromise decisions. Sometimes the Commission would accept the lower category and sometimes the higher category, but the process included rational decision making with justification regarding whatever decision was made.

While there were a few highly contentious disputes, most were amicably resolved, and there was a high degree of mutual acceptance over the Commission’s final product. For the most part, the Commission deferred to the Committee and its work product.

From my personal perspective, it was a significant achievement when the Commission first adopted the COMAR regulations. I believe that the Commission had made improvements over the previously existing judicial guidelines, and I similarly believe that everyone on the Commission regardless of their perspective believed that the Commission adopted guidelines had “created a better mouse trap.”

In Part II, Russell concludes his observations of working on a state sentencing commission.

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