So You Want to Start a Sentencing Commission? Part IV

Part IV of a series. The previous two parts discussed reasons for creating a sentencing commission. This post finishes that section of the series.

Improve policy decisions—Obviously, this ties into the previous function, but it goes beyond, to the stage at which the commissioners, representing their cross-section of the criminal justice process, actually apply the data. Are certain types of offenders less likely to recidivate (as defined authoritatively by the commission) when sentenced to probation, prison, or alternative sanctions? If probation or prison are the only options, how long is necessary to have the effect? If alternative sanctions are available and used, which of the many out there? Or, another possibility, does it make a difference in sentencing if the crime victim gives an impact statement or not? If so, harder or lesser sentences? Sometimes harder, sometimes lesser? Why? Do oral statements have a bigger impact than written? If they do, what is the “due process” thing to do?

Without the data and accompanying analysis possible with sentencing commissions, these kinds of questions are answered in the dark, if they are answered at all. Often, too often, policy gets based on untested hypotheses or untethered hyperbole. If agents of the process get into arguments over responsibility or blame for problems (for example, are increasing weapons offenses due to incompetent policing, slack prosecution, bleeding-heart judges, Paris Hilton, what?), the policy results can be based on which group has the most political power or best media strategy, not on reality. Something is needed to bring realism to the chaos.

That something can be your sentencing commission. Again, composed of a representative cross-section of the process, a commission in consensus can pull together views, constituencies, and interests into a framework backed by professionally produced data and research. It can give subsequent policy decisions (and no-decisions) legitimacy and credibility lacking in a free-for-all among process participants. And this goes beyond the usual policy concerns like cost-effectiveness of sanctions or means to funnel proper offenders into treatment. IF in consensus and IF with effective leadership, a sentencing commission can bring focus, purpose, and action to a wide range of policy problems that would otherwise go unresolved. Another less commonly emphasized but ultimately greatly valuable function.

Change existing sentences and sentencing practices—This is more than the “disparity” issue discussed earlier. What are your goals for sentencing in your state? Deterrence? Of the offenders? Of wannabes or might-bes? Incapacitation? Retribution? Rehab? Are your sentences considered just? Based on the appropriate punishment for the offense? Or for the offender (serial killer or abused wife, first-time offender or career criminal?) Who are your top priorities for prison? Sexual abusers? Other violent types? Druggies? Habitual offenders with no rehabilitation shown? Anybody who breaks a law, regardless of the offense? Your cousins like those folks in “My Name Is Earl”? Too often sentencing practice is an incremental evolution with any or all of the goals and considerations of justice at play. Forming a sentencing commission can give you a chance to decide what you want and to keep your eyes regularly focused on how well you’re doing.

On a more direct and practical level, sometimes long-held sentences and sentencing practices come under question. Multiple DUI convictions without serious treatment or jailtime may pass unnoticed until the collision with the church bus. Parental spanking of their children may now be called abuse. More use of “The Club” may force car thieves to wait until cars are started and ready to move—carjacking, never a big problem when cars could be taken stationary, suddenly requires action. One more—if you can pick up the basics for your meth lab at WalMart, should store managers be held accountable for selling to suspicious types, like merchants selling beer or cigarettes to minors? Should record checks be required? A body of criminal justice practitioners tasked with dealing with sentencing can bring insight and guidance to policymakers otherwise tempted by the first bumper sticker they see. (You won’t see “task” used as a verb again, we promise.)

No commission can stop a set of policymakers and/or advocacy groups determinedly bound for stupidity. The history of mandatory minimum sentences and their poor long-term cost-effectiveness is proof of that. If “by God, we’ll show you, you SO_, d#*! the costs” is your guiding sentencing philosophy (which actually has academic support in some quarters), then you should give up planning a commission. You can do that without wasting your money on one. But, if you’re at a point at which you’re seriously considering it, then the environment would likely support at least somewhat a commission that sets standards and goals and reviews possible corrections to sentences that no longer seem appropriate. Stupidity will almost certainly still raise its proud head occasionally, but legitimate, credible commissioners have shown the ability to channel consideration into reasonable channels.

Buffer policymakers—This is clearly related to the previous function. Commissions in general have always been conspicuously valuable to policymakers who want to shunt controversial and/or merely complex matters that can’t be avoided off to somewhere “official” where the heads that end up rolling won’t be theirs. Sentencing commissions can and do play that role in sentencing policy. Public outraged over a well-publicized crime or a sense of lawlessness? Some local demagogue getting signatures for a voters’ initiative? Don’t want to raise taxes to pay for more prisons if you vote for tougher sentences but don’t want to lower sentences or release inmates to get prison populations down to constitutional or historical levels? Sounds like a job for . . . a sentencing commission!!!

Obviously, commissions are not themselves immune from public outrage or demagogic fun. But, a commission in consensus and composed of a broad and respected cross-section of the criminal justice process has resources beyond data and analysis to guide debate and action into reasonable and reasoned channels. Political history has shown that nothing can stop a bad idea whose time has come, especially in criminal justice policymaking, but a well-regarded commission properly doing its job can give cover and thus courage to policymakers wanting to do the right thing but needing a little protection. So the benefit, while marginal, is real. If you can’t put a body like this together, once again you may as well give up the commission idea. A spineless and/or dithering commission is worse than no commission at all.

Which leads us to . . .

Ah, that's Part V. We're already resorting to cliffhangers!!