I had the pleasure of spending a couple of days with some very good and interesting people hashing through one of the most intractable problems facing corrections sentencing policymakers in the entire nation. They're in the middle of trying to figure out what's right for them and I'm not going to throw cold water or gasoline on their serious efforts. I will say this, however. As I listened to people considering the hows and whys (and why nots) of applying the usual suspect solutions to the problems, I came to two conclusions.
One, we need far more in our toolbox than sentencing commissions. The commissions that have succeeded are notable for their paucity and the very, exceptionally unusual combo of leadership, government process, and opened windows of opportunity that allowed them to have an impact. It's easy to pick who among commission states and leaders to call in for advice because there are so few of them. That in and of itself says volumes about the impact of the average commission on state sentencing policy (the fed case goes without saying--they weren't involved in these conversations) these days. Maybe the states considering commissions will catch a wave and get similar leadership and luck. That's why it's premature to just dump on any state's plans to do its own commission. It could happen, just like that person you meet in a bar or on the Internet could be your One True Love.
But people looking at you as you prepare for that magical evening will be justified in having their eyebrows raised as you enthuse. Maybe we should be thinking of other ways. I've often thought that the sentencing commission/guidelines movement actually shut off creativity and better options on sentencing. It certainly shut off any effort at finding what the best sentences for particular offenders and offenses might be. And I don't think it's a coincidence that the successful commission states also had or developed demonstrably effective and fairly well funded community corrections systems to give judges the options they've always mentioned in my conversations with them as important alternatives to their incarceration decisions. Between a commission and guidelines or extensive transparent data and an adequate community corrections system as our alternatives for getting correctional costs down, I'd jump on the latter before committing to the former. (For the record, I'd do both if I had the choice, using the latter to reinforce the former, whether they're prescriptive or advisory guidelines.)
The other thing, though, that impressed me from the conversations I was privileged to hear was just the inevitability of technocorrections, dependent primarily (at least early on) on the speed of the developments and the skill of their corporate salespeople. (Actually, I'm kinda looking forward to the sales job because I'm assuming I'll be involved in my state's decisions and, if the process is the same as normal for pharmaceutical salespeople, we'll be seeing a lot of former college cheerleaders who have special insights into chemistry apparently.) The tools in our policy kit haven't really changed in 30 years, and the new and novel, offered with promise and no real evaluations, will be very tempting. Especially in comparison to the uncertainty and crapshoot that currently accompany the success of the old tools, as was made depressingly clear in the conversations I sat in on.
Got a guy with substance abuse problems? Here's a commission saying this is the consistent and nondisparate sentence to give. Here's a corporation saying this is the drug to put him on to stop him drinking or, better, here's what we can do genetically to the receptors on his brain cells to reduce his capacity to be affected by alcohol. The first is a tentative solution at best and will cost big bucks even if incarceration is forgone for treatment programs. The second is offered as a more definite and less costly alternative. The first has a very arguable record of definitive success. The second sounds like a movie and retains that "tough" "control" patina. Now apply the same technocorrections to sex offenders, violence guys, shoplifters. Wanna bet which way policymakers will be drawn to?
Like I said, the pace of this will be determined by the development of the drugs, gene therapies, and surveillance techniques to enforce them (didn't get the drug today?--zapppp!!! to the implanted transmitter/receiver and suddenly you have incentive) and by corporate marketing skills (which always amaze, don't they?). I just don't see our current toolkit being more impressive or less expensive. I've made clear, I hope, that I don't like the prospect and just shake my head when I think about how we're ignoring all this for the most part, just letting it happen while we act like the only questions really are should we have commissions and guidelines and, if so, what should they be. The extraordinarily special circumstances that have produced the unequivocably successful commissions and guidelines are unlikely to be replicable and, as that reality sinks into most policymakers (especially those whose commissions don't come through one, two, three times), they will be drawn back to either more prisons or more glamorous and seemingly intelligent and "scientific" options. The real questions are whether, ten years from now, we'll even still be talking about traditional commissions and guidelines as our chief means to keep costs down and whether the commissions and guidelines will have as their chief concerns which offenders get which technocorrections.