Odds and Ends

Not really news, not really blogs. Remember how I've mentioned from time to time my interest in the possibilities of the artificial communities in Second Life for simulating environments within which we could generate conditions for generation of crime and restitution that could test some of our criminological and sentencing theories? Don't remember that? Well, it wasn't well developed. And this article doesn't get us any closer, but it does describe what Second Life is, its potential, tech and other difficulties. I still think it's worth looking into, by people with more skill and money than me (which isn't hard), but the tech levels and design are clearly more than can be done right now. But think about what people would have said about Second Life itself a few years ago. My experimental world might not be so far away, after all. . . . Our friend Tom McGee, who has been missed in our comments lately, left an insightful one to my post on CA below from a couple of days ago. The whole comment is good but I thought I'd emphasize this part:

"I believe that sentencing systems should be structured so that decision-makers respond to each of the State’s sentencing objectives separately. In this way, policy makers and decision-makers are forced to decide where they will place their priorities. Of course, we hope that they will have the good sense to emphasize what is in the greatest public interest. After all, there are just so many dollars to go around. In this context, I believe most people would choose safety first; namely risk control and risk reduction. Yet this does not ignore holding offenders accountable. Sometimes risk is not the most important consideration. Deprivations imposed to accomplish the most important objectives can also accomplish the less important objectives at the same time, when they are nested."

We really have jumbled things up badly with corrections sentencing policy, with our mixing of goals, actors, options, and resulting lack of telling evaluation about the efficacy of what we're doing. Good to have Tom back to remind us. And while you're at the comments, please note the kind work of Stephen Joyce in getting us some of the citations to the work on prison impact in the econ lit, to which I've offered an addendum. Thanks, Stephen. . . . One of the biggest time bombs in the corrections sentencing realm is the aging of our prison populations and the triple costs that are associated with their maintenance behind bars. Want to get an idea about how the states compare on the topic? Well, the Southern Legislative Conference can tell you about some of them, at least, in the great report found here. . . . Finally, Ben Barlyn has shared the communique he made with his sentencing commissioners in NJ on the Cunningham decision, the big overturning of CA's sentencing system by the Supreme Court today. Of course, Doug Berman's shop is the go-to place for the commentary and links, but Ben's summary is concise and may be applicable to your state. You're getting it for free, but it's worth a lot more, I'm sure you'll agree:

In a long-awaited decision handed down today, the United States Supreme Court, in Cunningham v. California, concluded that California 's determinate sentencing law (DSL) violates the Constitution's Sixth Amendment right to a jury trial under the principles established in Apprendi v. New Jersey and subsequently refined in Blakely v. Washington and United States v. Booker.

At issue in Cunningham is a sentencing scheme that authorizes three terms of imprisonment — a lower, middle, and upper term sentence. Much the same as the original sentencing provisions in New Jersey's Code of Criminal Justice, the DSL directs the sentencing judge to begin with the middle term, and to move from that term only when the court finds and places on the record facts — whether related to the offense or offender — that sustain statutory and non-statutory mitigating and aggravating factors. A judge may impose an upper term sentence only when he or she finds an aggravating factor. In addition, these findings must, under the DSL, be established by a preponderance of the evidence.

Writing for the majority, Justice Ginsburg concluded that "the middle term prescribed in California 's statutes, not the upper term, is the relevant statutory maximum. Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, the DSL violates Apprendi's bright-line rule . . . ."

Regarding the appropriate remedy, Justice Ginsburg stated that the ball lies in California 's court. She further observed that while some states have responded to Apprendi by requiring the jury, rather than a judge, to find certain facts relevant to sentencing, "others have chosen to permit judges genuinely 'exercise broad discretion . . . within a statutory range which 'everyone agrees' encounters no Sixth Amendment shoal."

Although not cited in the majority decision, the Supreme Court of New Jersey 's decision in State v. Natale, which modified New New Jersey 's sentence scheme by eliminating the presumptive term provision from the Code, would be appear to be vindicated in all respects. In short, the Cunningham decision will have, in all likelihood, no impact on New Jersey sentencing law and practice.