Friday, March 16, 2007

Criminal History, Disparity, and Sentencing Guidelines

As we observe the various states trying to get handles on their current and even worse looming corrections sentencing problems, considering in particular sentencing commissions and guidelines, we don’t hear much about the original reason for development of guidelines and commissions—ending sentence disparity, making sure that like offenders got like offenses and unlike got unlike. It’s there a little, but the overwhelming concern right now is to match policy with increasingly finite resources.

I don’t consider that decline of concern a horrible thing. That doesn’t mean I’m a fan of sentence disparity. I’m the opposite. It’s because I haven’t been convinced for a long time that we accomplish what we’re after in most cases by institutionalizing structures to inhibit disparity when we do guidelines. Most guidelines systems rely heavily if not totally on criminal history as the “offender score” in their grid systems and to apply enhancers and mandatory minimums. I’ve worked for over a dozen years now with criminal history records, I’ve seen how they’re developed, and I think there is, even today, too much wrong with the collection and reporting to justify the faith that guidelines put in them.

I’m not saying I disagree that crim hist is the most important factor in most cases predicting future crim hist in the general case. What I’m saying is that I’m not confident that we end sentence disparity with the criminal history records we have and on which we base our sentencing decisions. What I’m saying is that it’s still too possible for two identical offenders with identical lifetime criminal behavior to be sentenced in the identical system differently, disparately.

A couple of quick reasons. One, the record collection and reporting, while better than a decade ago, are still too ambiguous. I talk regularly to people who still laugh and shake their heads at the idea that a rap sheet can be interpreted as a science rather than an art or that they believe it’s completely accurate when read correctly. You need good disposition reporting and maintenance to make them real, and people trained to get it done right and also to even care. Once the guy goes away, why worry about updating anything? Two, some DAs charge everything and stay with it, some charge everything and bargain away some, some charge just one or two things to keep everything straight and simple. So three identical guys doing the same criminal things could conceivably end up with three different prior records. And, the next time they come through for, again, the same thing and those prior records are applied to a grid or a mandatory, they will get different sentences even though they have never in their lives been or done anything but exactly the same. And this doesn’t even get into differential charge bargaining.

Your statistics showing that more priors predict future crim behav best would still be good, assuming, reasonably, that the problems I describe are spread evenly across the offender pool. Yet, in application of guidelines or mandatories based on them in individual cases, you could end up with significant disparity, even as your analysis told you the disparity didn’t exist. Minorities have argued for years that that’s one of the chief ways they get hammered disproportionately in guidelines systems, and, absent better studies of what happens in DA offices, I’m hard pressed to tell them they’re wrong. Guidelines can definitely give the appearance (and reality, I’m afraid) of bias, and that undermines their legitimacy, support, and value.

That’s why I would argue, if guidelines are being done, for a more inclusive offender score, one that counts criminal history but goes beyond that to score points for mitigators and aggravators and for risk assessment tools (not risk of violating probation, but real risk of future re-offending) that so many judges are now advocating upfront before sentencing occurs. A more inclusive score might be more of a hassle to calculate, but it’s already done in some states, like MD, and can incorporate a lot more of the factors judges and the public consider necessary to actually get at the proper sentence. Later evaluation and statistical analysis can be used to refine and tailor the resulting sentencing system to ensure that like sentences yada yada while also testing their predictive ability of future recidivism and public safety risk.

So, if you’re thinking commission and guidelines, do your best to get the best info on how well your crim hist system is actually capturing reality before you start using it to form those guidelines. And please use this open window of opportunity to bring in other measures that can improve and enhance the offender scores you apply. In the end, you may just end up with more public safety, less disparity, and more dollars to put back into other criminal justice needs all at the same time.

1 comment:

Tom McGee said...

Mike, I’d like to put in a word for institutionalizing structures that inhibit disparity, if I may use your phrase. Our concern about sentencing disparity is rooted in the equal protection clause and sense of fairness. Similarly situated people must be treated similarly. But we have to ask, similarly situated with respect to what? I suspect your unease about the role that guidelines can play in overcoming disparity is rooted in the answer to this question. I believe the answer to this question is that people who are similarly situated with respect to each sentencing provocation must be treated similarly.

There are three sentencing provocations in most cases. First, the subject’s conduct was a crime, which ignored the state’s warning and consequent penalty. Penalties should be proportional to the state’s compelling interest in forestalling that conduct. Accordingly, people who commit the same crime should be penalized in the same measure. Second, the subject’s criminal conduct was an offense, which disregarded the state’s threatened punishment. Punishment should be proportional to the state’s compelling interests in upholding the law, restoring equity, and fixing culpability. Accordingly, people who commit the same criminal offense should be punished in the same measure. Finally, the subject is a criminal offender, which means that he or she is at risk of recidivism. The state has a compelling interest in protecting the public. Accordingly, people who are equally dangerous should be incapacitated in the same measure. People who are correctable may be restrained in the same measure to facilitate their rehabilitation.

Current all-purpose, generic sentencing systems do not distinguish between these three sentencing provocations. It follows that offenders who are sentenced by this means are almost certainly treated unequally in one respect or another. Are generic sentencing systems unconstitutional, because they deny equal protection and due process of law?