My recent disappointment upon hearing the composition of the proposed CA sentencing commission (and yes, I realize if those hard-core reps come up with anything pleasant, it'll have a "Nixon Goes to China" effect--the odds are "Nixon Goes to Hell") made me think more about the nature of appointed commissioner roles and how they relate to the traditional roles portrayed for elected representatives. Now, it's been years (decades!!) since my last "Legislative Process" class (and they've probably dropped all this by now), but I remember a typology for legislators as representatives that may be of use here.
There were three basic types of legislators, we learned. The first was the "delegate." This person saw his/her role purely as a conduit for constituent needs. S/he was to have no personal views or act on any actually possessed. This person was simply a channel of public opinion to be faithfully rendered. Now any halfway mammalian brain can see the problems with saying this person will know and reflect the totally homogeneous view of all the constituents. Reality forces this representative to decide whom among constituents s/he will reflect while being this "bound" voice. That in practice isn't completely untethered discretion but allows much more wiggle room than the advocates of this role solemnly proclaim.
The opposite of this role for a rep is the "trustee," the person who believes s/he was chosen to do whatever s/he thought was best, regardless of constituent perspectives. "If you knew what I know, you'd do what I'm doing" is the basic idea. The first best-known proponent of this view was Edmund Burke, who promptly was defeated the next election after espousing this. You see it in the Kennedy "Profile in Courage" stuff, including Caroline's awards, which frequently go to more recent guys who were promptly defeated since it tends not to be that popular an idea with people who, like, want their reps to do what they're told instead of playing superior.
The third type--the "politico"--predictably is a cross between the two. Tries to be up-to-date on the issues and educates his/her constituents while keeping a finger on their pulse, or in the wind, or somewhere. Balance their votes between what is good for everyone and what is so important to constituents that they can't or won't cross them. In theory, this is the best, providing the most opportunity for good, informed policy, but is difficult to pull off either personally or electorally. It's just easier to take an ideological position if you have a majority with the same view or the PR tools to convince a majority you share theirs. Gerrymandering makes this pretty easy for most reps. (Most of us cyn . . . realists would add a fourth type, the "opportunists" who say anything, dole out goodies, and claim to be all three, depending on the majority of the audience. Academics take pride in not being cyn . . . realistic, though, so we'll leave this one off.)
The question is, how appropriate would this typology be for those appointed as sentencing commissioners? At first glance, it might seem very so. We explicitly choose commissioners from specifically designated groups, with the clear implication that they are the group "representatives." Analyzing commissioner roles, then, would seem to be simply a matter of figuring out what applies. Those of you with experience with commissioners can probably already think of different commissioners who fit all types. But that conclusion, while popular, is not only superficial but also damaging to commission work. Why?
One answer should include the word "appointed." Commissioners are chosen by elected and non-elected officials, not elected themselves. Keep in mind that, given the different sizes of the groups from which they are chosen, there is a definite violation of "one man, one vote" if representation is the intent. A sentencing commission is not a legislature and the people selected to it are not there to give their groups a "vote." The purpose of every commission is to provide to its appointers recommendations as to Best Practice to achieve whatever goals and to resolve whatever problems the commission is created to address.
For commissions like CA's (and maybe CO's in the future), the problems are not only enormous, they are desperately clear. The commission is to inform state policymakers how to best use scarce (and growing scarcer) correctional resources to achieve best public safety results--IOW, "What Works?" in keeping offenders from reoffending when released and in convincing non-offenders not to start. We know what the "What Works?" is for the bulk of them, and it's rarely what the groups from which the bulk of the CA commission are to be chosen want, at least for the bulk of offenders. The state cannot afford a commission made up of "representatives," delegates or trustees or even politicos. It needs the equivalent of the Space Shuttle Columbia commission, one that defines the problems and spells out objectively what needs to be done so the onus and blame will clearly be on the policymakers who receive their recommendations.
The last thing any commission needs is a bunch of appointees who see themselves as mini-legislators with constituents to represent. That's what emasculated the commissions I served in OK and WI. (And it technically wasn't even true that the commissioners "represented" their constituencies since I talked to many of the latter and knew that what the commissioner was saying in meetings at best "represented" only a fraction of them.) Commissioners are there for their expertise and experience to delineate what is possible in light of purpose or what the impact will be on their practitioners and clients if recommendations are proposed. Everyone of them must be there with a conception of the "public good" and the recognition that that "good" is frankly NEVER the equivalent of the professional and personal vested interests of the groups from which they were chosen. (For an example, read the description of being a commissioner by one of the best, Russell Butler, on the right.)
Anyone appointed to a commission should be required to take an oath to the "good" rather than the group from which they are appointed. Performance of that oath should be monitored by the commission chair at regular periods of no more than 6 months, and that chair should have the power to remove offending vested interests. Yes, the politics of it will be troublesome but consider the alternative. All it takes, and this is from unfortunate and frustrated staff experience, is one commissioner determined to have his/her way preying on the civility of fellow commissioners (who, mainly being attorneys and/or nice people, always tend to half the loaf to get along, to keep people happy and together, to seek a settlement, halfing and halfing and halfing until there's just one crumb that's not what the preyers want . . . and they hold out for that, too) and the commission will either fail completely or just end up an "average sentence for burglary" data-reporting agency. In the end, 2,3,4 years have been wasted with minimal to show and the state worse off than when the commission started.
Commissions are not legislatures and commissioners are not legislators. The roles have some similarities, but those similarities confuse differences that are far more important. Commissions have jobs of expertise and wonkery to do. Best Practice is the finding of careful analysis and evaluation, not the outcome of a democratic vote. The policymakers are the ones to take the votes, and the constituency groups will be free to work at that level. Having commissioners who see their roles as "winning" on commission recs will doom a commission at the start. Those serious about an influential commission will cut that off at the roots before it can even grow. CA looks like it will be the penultimate example of why.