So You Want to Start a Sentencing Commission? Part IX

Part IX of a series. In Part VIII we talked about commission structuring, including standing committees. This part finishes that section.

Data and Research
Since most of the commissioners will likely have legal training (meaning, they ran from math classes), it is sometimes hard to populate the sentencing statistics committee with people knowledgeable enough to contribute effectively. As with the overly-knowledgeable folks on Sentencing Guidelines, this can be a mixed blessing. Deference to statistical staff is far more likely, and good staff will respond well. Poor staff won’t. However, the commission’s data reports will have enough potential impact on practitioners and others to generate feedback to highlight problems with the data.

Unfortunately, the feedback can go beyond locating inaccurate data. Good numbers will likely be challenged as well by those negatively affected by them, and commissions and this committee in particular need to be prepared. Staff should be sensitive to the political ramifications of their work and not report anything reactive (even under time pressure, such as a call from the governor’s office for stats in ten minutes) without alerting at least the chair of this committee and/or the commission chair. The committee and commission, however, must resist the inevitable temptation to vet every single piece of data reported in a regular report, a request from the public, or a demand from a policymaker. Staff should be trusted and live up to that trust, or the commission will delay and deny information necessary in sentencing deliberations. In the long-term, this will hurt the commission’s reputation with sentencing stakeholders.

This committee will not likely deal only with statistics. It will probably have to consider sharing of data about sentences, costs, offenders, etc., with other agencies and governments. It may also look at types of hardware and software for data systems, requests for data from academic researchers, public information act requests, and even subpoenas for evidence in trial, appeals, and sometimes civil proceedings against government officials. As mentioned, the average commissioner does not have this background. It is, therefore, often helpful to establish a “workgroup” of people in the state criminal justice and information technology communities to provide advice and assistance. Whether this is a formal offshoot of the committee or merely folks “on call” to staff doesn’t matter as much as having the expertise at hand.

Ultimately, the value of your sentencing commission to the state and public is not simply maintenance of formalistic sentencing grids. It’s also the collecting and reporting of the data about the sentencing that will inform later deliberation and decisions by the commission, legislature, governor. Good data will not immunize a state from rash and opportunistic political acts, especially in criminal justice, but, without good data in which people are confident, the process is flying blind. That’s not necessarily a fear for politicians who hope to be off the plane before it crashes, but it’s hell for the taxpayers and citizens who have to pay the price when it does.

Public Outreach
At some point your commission is going to have to set down policies on public information act requests (formal form or not?, within the law, how much to charge for copying, staff time, etc.?, notify a judge if s/he has been the specific target of a request or not?), on who says what when the media come calling (staff on technical questions, chair on policy?), on whether to do public polling or focus groups, on newsletters, press releases, staff presentations, on dealing with public controversies or attacks on the commission itself. Again, the formal backgrounds of commissioners in public relations are likely to be limited, but most of them got appointed for political involvement and ties and should have more experience and expertise than with statistical data.

A prudent commission will be proactive in its public outreach. Unless the commission is on the front page of the newspaper (which will never happen if it’s good news), the average citizen will never hear about it. But outreach to active community groups, churches, victims’ and offenders’ organizations, and specialized practitioner communities can alert them of the commission’s existence and purpose and put names and faces from more pleasant and informative encounters in their minds if/when hooey hits fan.

And, keep in mind that most of the data and information that a commission brings to the table is actually helpful to the parties “outreached.” Practitioners usually benefit from knowing what the practice is. Citizens and interest groups benefit from accurate information beyond anecdote and/or their own unique experiences. And Lord knows the media benefit from access to good data, whether they actually use or report it appropriately or not.

Plus, what is there to fear from open channels to sources outside your commission? Yes, sometimes people find out embarrassing things or take data out of context mistakenly or mendaciously. But data and information that people really want usually come out at some point anyway. Is it better to have little or no control or input over its use and interpretation? And the commission can, of all things, actually learn from its interaction with the public, with groups, with the folks in the field doing the heavy lifting. Too much policy is made by authorities from on high who then beknightedly drop it on an unsuspecting population who could have told them all the things that then screw up if anyone had bothered to ask them. So ask them. Yes, you’ll get a lot of talk radio-like wisdom, but you’ll also get some gems that may save you time, resources, and grief. And, cynically, you’ll also get a buffer from charges that you’re just another of those unresponsive, self-absorbed government agencies. No citizenry will ever come rushing to defend the life of a sentencing commission, but good, proactive public outreach can help prevent them rushing to tear it down.

Other Possible Committees
You’ll likely have several things pop up that do require some intensive investigation and thought delegated to a few commissioners for later recommendation but that do not last long enough to require forming a permanent committee. And you may have particular needs that do require one but that other states don’t have. However, as you plan your commission’s organization and structure, there are a few other areas that you might want to consider for standing committees.

Strategic Planning—Anyone who has been through this will groan, but careful early planning and then constant, consistent monitoring of performance will help keep your commission from straying into irrelevance or navel-gazing. The success of “problem-oriented policing” with its emphasis on Scanning, Analysis, Response, Assessment suggests a slightly different approach, “problem-oriented sentencing,” you may want this committee to develop, for example.
Policy and Legislation—Depending on how long your legislature meets and how many sentencing-related bills it considers, you might want a “quick strike team” that can support or oppose bills between commission meetings. As a rule, it’s easier to avoid controversy by ignoring bills until they pass. In practice, controversy is hard to ignore if you’re doing fiscal impact statements on those bills or if the legislature wants you to report on race of offenders’ birth mothers from other states or something similarly genius. But, given the pace and schedule of state legislatures, especially at the end of a session, getting the full commission for action is hard. A small committee for the purpose is much easier logistically, and should be populated by your most politically astute and/or influential commissioners.
Alternative Sentencing—While this can be part of Sentencing Guidelines, the intricacies and ramifications of alternative sentencing and its various means and programs may require more careful and specific consideration than the Sentencing Guidelines people can fit onto their loaded plates. If your state is seriously considering broadening its range of possible sanctions rather than just investigating occasional questions, your commission will likely benefit from a separate body here.
“Technocorrections”—Although legislatures, governors, courts, and commissions seem determined to ignore careful thought about the scope and consequences of our ongoing and unstoppable evolution of the use of surveillance, pharmaceutical, and genetic technologies for sanctions and behavior modification, the great hope of a democracy is that policymakers will consider world-shattering events such as these in something other than a piecemeal basis. Should your commission be the first, you will definitely need this committee, supported by workgroups of experts and laypeople with sense, if they can be found.
“Costing Out”—A technique becoming popular in state and local government management these days is known as “costing out” of functions and programs. The method may vary, but the idea is to establish among relevant communities a set of program and policy outcome priorities which can be triaged as necessary according to available funding. Once the priorities are known, the costs and benefits associated with what is known to work to achieve those priorities are established. The priorities are then reexamined to determine if the net of gains and losses are truly what is desired. If appropriate, the priorities are revamped to reflect what can be done with available dollars. Clearly, since one purpose of a sentencing commission and structured sentencing is to monitor costs/benefits of sentencing decisions and policies, this technique would seem relevant to a pro-active commission and fits well with the “evidence-based practice” buzz that’s currently in the air. Therefore, a committee to do regular costing out of sentencing impacts might do the taxpaying public a lot of good and rein in the opportunists in the policy community. It’s not regularly done at this time, however, so, again, your commission could be the guinea pig if you want.

Clearly, organization and structure are more involved that this brief detailing can portray. Your commission will, of course, have contexts that will shape the roles of your chair and other commissioners, when and where it meets and acts, the discretion given to staff, what kinds of committees are necessary and how effective they are. As stated about the mission statement, the really important thing is to have a clear and consensual vision of what you want the commission to be and to have done a year, five years, ten years down the road and then to organize around that vision. Will the organization and operating procedures change? Sure, as the circumstances force and the vision shifts. But as long as you don’t paralyze yourself with too much deliberation or fracture over individual agendas (the two biggest threats to commission action), your commission’s vision should fairly quickly guide you into patterns that will help you accomplish your basic functions and more.

Which leads us to a more detailed look at some specific concerns you’re probably going to have to deal with that we have yet to really cover.

Part X turns to specific issues and concerns you may have.