So You Want to Start a Sentencing Commission? Part XI

Part XI of a series. In Part X we started listing some predictable concerns and issues that you may face as you start and continue a sentencing commission. This part finishes that section.

Criminal history access—Structured sentencing greatly depends on accurate information about the offender’s criminal history. One of many dirty secrets about criminal justice data is that criminal history sucks. Dispositions just don’t get linked back well to arrests or charges, and out-of-state convictions are worse. Efforts have improved things greatly from the old days and enriched several consulting firms (who, when you think of it, never really have had the incentive to get the system right), but problems are still there and real. Plus, juvenile records are frequently unavailable legally. Worst for you, commissions aren’t normally considered “law enforcement” agencies legally authorized to have access to most criminal history data bases. The upshot of it all is that this is one of the most important areas for that “cooperation with other agencies” mentioned before. Figure out some good quid pro quos that you can trade off when you need data, or start on that legislative exemption for access now.

Internships and graduate students—When seeking quality employees at reasonable prices, one of the best sources is your friendly neighborhood college or university. Undergrads in criminal justice, poli sci, or public administration frequently need internships for graduation requirements, getting 3 hours credit for 120 hours of semester work as a rule, and there you are to help them out. While they can’t rewrite the criminal code for you, they can do data entry (and learn way too much about how our justice process operates at the same time), staff meetings and direct sentencing questions, and the best ones can do some writing and analysis. Grad students usually insist on being paid (although volunteers are not unheard of), but the rate is only $13-$17/hour for 10-20 hours a week (and little in the way of benefits). This may make you feel a tad exploitative, especially if they are doing statistical or other heavy-duty analysis for you, but give them a good title, access to networking with commissioners and their staffs, and their names on any publications resulting from anything they’ve worked on to add onto their resumes. Your conscience won’t be quite as hard on you. An added benefit of both grads and undergrads is that they may have access to university resources (library, intranet resources, etc.) that you don’t and can glom onto. Plus, with few exceptions, they reinvigorate a place with their interest and energy. That’s a surprisingly valuable contribution once you’ve experienced it.

Recording and reporting names of judges—To ensure unreasoned responsiveness to every panic that makes local TV news, most states require their judges in criminal cases to be elected, some frequently, most for relatively long terms after an initial shorter appointment. As a result, come election time or the latest heinous crime, political opponents and/or ADHD reporters will love to cherrypick individual cases in which sentences questionable in their view were given. Now, some judicial decisions should be second- and third-guessed, and some judges do do excellent maniac impressions. But, in our experience, this selective use of judicial data does not present an accurate or fair view of most judges or the process. (If the average sentence for child sexual abuse is only 3 or 4 years, as is frequent and a legitimate outrage, maybe it’s because it’s hard to get charges or convictions at all against “Coach” or “Father So-and-So” or “Grandpa,” not because judges or prosecutors are lunatics.)

However, start a sentencing commission and watch people suddenly want to dig through your data (actually, have you do it) to find that eye-catching, ear-numbing case. Judges not unreasonably take unkindly to this treatment, although technically the information is public and available in county files with a little work to anyone. Judges, therefore, may object to your commission maintaining their names in your data base of sentences, and the commission may have to make and defend a decision either way.

You will probably find that some judges don’t care. Those from small jurisdictions tend to be highly unsympathetic since they have to deal with a public that every week at the grocery store knows every local case that goes to court. One-judge counties are particularly easy to track in your data base. On the other hand, in large, usually urban jurisdictions with severe case pressures and local contexts that favor deals for lower sentences, the judges may opt for anonymity, especially since local TV and a major newspaper or two are likely in the city with them.

There’s no good answer here. The public has a right to know, and you’re probably bound by state law appropriately. But the judges have a right to expect buffering from your commission, too, against unfair use of your data. Pennsylvania made a conscious decision to report, Maryland one not to (although it has allowed access to its files instead and notifies the judges studied). In both cases, your commission should vocally warn users of its data against its misuse and speak out strongly when it happens.

Pursuit of grants—Like any government agency, your commission will likely have need for more funding. An obvious but very difficult source of supplementary funds jumping from the lips of everyone who has never had to do it is grants. Why is it hard? Well, the feds have never been that interested in sentencing research (it’s only the basis of everything the criminal justice system ends up doing), so you’ll have to be creative to devise the necessary link to the topics in their RFPs (request for proposal). And while some foundations are possibilities, they are hard-pressed for funds these days, too, and usually are interested more in children and families or juvenile justice than adult sentencing. That means tying your requests to topics like reentry, child abuse, or certifications for adult sentencing, which may tend to be peripheral to your commission. On top of all that, foundations often have goals identifiable with political sides, something a nonpartisan commission usually avoids, wisely. Still, this is an area in which those cooperative relationships with other agencies, like your Statistical Analysis Center or Office of Juvenile Justice, may pay off, literally, through inventive partnerships. Then all you have to do is figure how to divvy up the new funding and staff. Easy. (And, if you can tie it to “Homeland Security,” more the better.)

Performance measurement—It may sound odd to think of performance measurement for a nonpartisan body that basically sits around making recommendations about sentences. But in this heyday of state government “managing for results,” no one is immune. They might let you slide with “number of reports published” or “worksheet training sessions delivered,” but this actually gives your commission a nice chance to think through its own definition of success and what it wants to accomplish. And if you put together that mission statement, you should be able to derive objectives from which real actions are possible. These actions presumably have goals, which can then be observed for achievement.

The problem, of course, is age-old. Policymakers, and their staffs straight from an MPA program where easy performance measurement and coherent data bases are givens, will examine the measures for change in a preferred direction one year to the next. This has led to unbelievable game-playing in the four-plus decades “performance measurement” has been extolled as the savior of public management and budgeting. There has yet to be produced reason to believe any given iteration will reduce the games and produce better results (some see in this the definition of insanity, but we will be kind). Done correctly, and not abused by staffers shaking trees for budget cuts or promotions, measures can help track performance, signaling changes that need attention and the possibility of new directions. Your commission will likely have to play the game at some point. If it’s proactive, it will have more say over how it’s judged itself.

In the next part we'll tell you why your commission will fail and then we conclude. Sounds like fun, right?