An excellent article here in the Washington Post by Daniel Byman provides yet another opportunity to discuss the role of commissions – yes, of course I focus on sentencing commissions in particular. But many of you practitioners, academics, etc. may participate in state or local Crime Commissions or Criminal Justice Coordinating Councils (CJCC’s), or other inter-agency workgroups for whom this is relevant.
This subject is much on my mind because I just finished “ Without Precedent: The Inside Story of the 9/11 Commission” by Thomas Kean and Lee Hamilton, co-chairs (here). I suspect this is not and will never be a bestseller, but fascinating reading for those of us with some semblance of experience in starting and attempting to organize the work of a study Commission - without the pressure and profile of the 9/11 Commission. I greatly admire their work, their writing style, and I admire their readership (I bought my copy of their Report at Borders – my Commission’s annual report will soon be available online, but we aren’t being sold at Borders – go figure.)
Byman was a staff member to the 9/11 Commission, no doubt one of the best-organized and (arguably) influential independent commissions in US history. Before discussing the overlap with Sentencing Commissions, Crime Commissions, etc. it is important to discuss the differences.
As Byman notes, Commissions are rarely created by accident and are often created after a tragedy or accident, such as the Warren Commission after the JFK assassination or the 9/11 Commission itself. We are awaiting the results of another study Commission, the Iraq Study Group, which is Bynam’s subject. The Iraq Study Group is another sort, less a response to a single incident or tragedy than a long-term crisis, or sadly a bit of both (I’m right in saying that most of us recognize Iraq as such now, right – one’s politics aside?). Study Commissions that respond to one incident are different than ones responding to a long-term issue. (The 1980’s Commission on Social Security Reform has a far different function than either the 9/11 Commission or the Iraq Study Group.)
One famous CJ policy commission from the 1960’s was focused on long-term issues, the 1967 President's Commission on Law Enforcement and the Administration of Justice. That Commission was path breaking, regarding crime as a social problem best controlled through social programs, instead of a breakdown in social order best contained through tough controls. This Commission set the stage for forty years worth of debates. (see especially Charles Wellford’s critique that argues that the Commission emphasized reducing crime, but neglected another element – ensuring justice here).
Thus, one way to think about these diverse Commissions is to think Response to an Incident v. Response to a Long Term problem. Both aspire to be nonpartisan. One, looking to explain an incident, is invariably investigative in nature (9/11) while the other is analytical and seeks to describe long term trends and offer policy alternatives (President's Commission on Law Enforcement and the Administration of Justice). Sentencing Commissions, CJCC’s, and Crime Commissions are examples of the latter, and so unlike the 9/11 Commission in important ways. Further, Commissions like the 9/11 variety are usually short-lived (9/11 commissioners, however, have exceptional stamina and hang in there), while Sentencing Commissions, CJCC’s, etc. are usually interested in a long term future and seek/are designed to carry over from one issue/incident to another.
I have struggled as a Sentencing Commission director with other's confusion about the two bodies. I have fought for Frankel’s notion of Sentencing Commissions as permanent bodies, constantly taking the temperature of the sentencing and corrections systems and considering the future in light of the past and present. Many others see us as temporary, confusing us with Commissions that address a single incident and then go away. Or maybe they just don't like me.
But some generalizations apply to either type of study Commission. As Bynam notes, some Commissions just “kick the can down the road” – window dressing or failures as long term analysis. Others are designed to be inter-disciplinary and inter-agency, and “[are] seeking new solutions and will provide cover for their preferred options.” Either way (and these aren't the only options, or mutually exclusive), as Bynam notes, Commissions must propose “something – almost anything” and it is the quality of their analysis and the questions they tackle that distinguish the serious ones from the window dressing. And serious analysis may be shelved until later, until the time is right.
Bynam and Kean/Hamilton provide many other gems. They discuss the issue of “keeping the peace” within Commissions and the muting of interpretation. Also relations/negotiations with the "powers that be." Great stuff.
I should note at least two academicians (other usual suspects have been mentioned before) with a good sense of permanent commissions and the politics of same: Ron Wright and Rachel Barkow.
Ron Wright here discusses in “The Power of Bureaucracy in the Response to Blakely and Booker” (Houston Law Review, 2006) Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible.
Rachel Barkow here discusses in “Administering Crime," (UCLA Law Review, 2005). She has a finely-tuned sense of the conflicts and pressures of long-term commissions.
Well, I’ve gone on long enough for the majority of our vast readership that has little institutional commitment to these issues. For the handful that are more interested, please add your 2 cents in Comments, below. Thanks.