PROFESSOR MICHAEL TONRY "Implementing, Changing, and Maintaining Sentencing Guidelines in the Political Climate of the 1990's"
Francis J. Carney, Jr.
Executive Director, Massachusetts Sentencing
Commission
Dave Diroll
Executive Director, Ohio Criminal Sentencing Commission
Hon. O.H. Eaton, Jr.
Circuit Judge, Seminole County, Florida
Hon. Richard S. Gebelein
Chairman, Delaware Sentencing Commission
Rob Lubitz
Executive Director, North Carolina Sentencing and Policy
Advisory Commission
Hon. Paul Maloney
Chair, Michigan Sentencing Commission
Sandra Shane-DuBow
Sentencing Consultant
(former Executive Director,
Wisconsin Sentencing Commission)
Richard D. Van Wagenen
Executive Officer, Washington Sentencing
Guidelines Commission
TONRY: I thought today we would talk about what I call the political lighting strike. We will talk of how do we deal with the reality of a highly politicized subject in the United States in the 1990s. A subject which attracts political tensions, which attracts laws or leads to laws that are hard to reconcile with the rational notion of comprehensive policies that are balanced and result in proportionate sentencing and fair consideration of cases and so on. We are going to mostly talk about political lighting strikes, particularly mandatory minimum penalties and three-strike laws and how the policy matter people, thinking seriously and hard about sentencing guidelines and sentencing policy, have thought about and dealt with these issues.
Second is this issue of adding intermediate sanctions into the guidelines. The next step in talking about intermediate guidelines is to make them comprehensive, have a continuum of sanctions, figure out a way that penalties could be proportioned to the severity of the crime. It is easy to talk about; however, as we are discovering, it is very, very hard, as a policy matter, to do.
And the third is money. Even if we can devise plausible ways to deal with intermediate sanctions it is hard to create credible intermediate sanctions in the eyes of judges, prosecutors and elected officials if there isn't money to make the programs real. So, it's those three issues -- dealing with contemporary politics, dealing with trying to address intermediate sanctions, and trying to figure out how to create credible non-prison sanctions that I'm going to ask these people to inform us about. The panel members are from relatively recent sentencing commissions, to whom these issues are and have been right on the forefront.
I have two late recruits, I have Richard Van Wagenen, the relatively recent director of the third oldest commission, the Washington state sentencing guidelines and the Honorable Richard Gebelein of the Delaware Sentencing Accountability Commission. He probably feels that he has been chair of that commission since adolescence. He started this in the early 1980s in one way or another with commissions that have eventually worked their way through to the current commission. Also on the panel Dave Diroll, Executive Director of the Ohio Criminal Sentencing Commission, whose guidelines took effect this July 1st.
Sandra Shane-DuBow, the former director of what is now a defunct sentencing commission but one with over ten years' experience in trying to deal with these issues.
Francis Carney, whose commission just finished a herculean effort to produce a very thoughtful, very comprehensive and as far as I can tell absolutely exhausting process of public meetings and focus groups. I thought I was reading a typographical error when I read a bit of their report which said we had seven focus groups with representatives of victims groups and others who share that prospective and concern about effects of crime on victims. And I thought that's nice. Then it said we had 83 focus groups and I was sure that either it was 13 or it was 8 and it wasn't it was 83. They went to enormous effort to attract participation and to have an open political process. They have submitted their guidelines in April to their legislature.
Rob Lubitz, director of North Carolina commission that we have all been hearing about for the past two years.
I should say that I don't want to cause any political embarrassment to anybody but I did bring with me today 60 copies of a little newsletter I edit called "Overcrowded Times" in which there is an article by Rob Lubitz reporting data on the first year's experience with guidelines in North Carolina. Particularly on reflection on the extent to which judges have changed their sentencing patterns on who goes to prison and who doesn't. And it is quite stark for the most serious categories of violent crimes, it is basically 100% of people are going to prison in North Carolina. But also a substantial drop in the percentage of people in the lowest levels of their guidelines grid who are going to prison, which means greater certainty at the top but a substantial prison diversion at the bottom.
The Honorable Paul Maloney, chair of the Michigan Sentencing Commission one of the new kids on the block.
The Honorable O.H. Eaton, of the Florida Sentencing Commission who has been a critical figure in keeping that effort alive in Florida and in causing the Florida commission to substantially overhaul its guidelines two or three years ago and has his hand on the pulse of these things in that state as much as anyone can.
I was asked to try to begin this with a little bit of perspective on the subject of where we have come in the last twenty years in sentencing guidelines and sentencing commissions in this country. Conceivably this will provide a backdrop for looking at these more focused things I want to talk about today.
The question is what have we learned in twenty odd years. It is now twenty-five years since a federal judge named Marvin Frankel gave a lecture at the University of Cincinnati. His theme was caught up in the subtitle of a book called Criminal Sentences, Law Without Order. In his words, sentencing was lawless. It was the only thing that judges did for which there were no rules that gave them any guidance at all as to the decisions that they made. There were no standards for the appellate courts to look at to decide whether judges had done it correctly.
Judge Frankel offered a proposal to address what he saw as lawlessness and fundamentally wrong. His proposal had three parts: administrative agencies somewhat removed from day-to-day politics that could develop expertise -- or a sentencing commission; rules, which we all now call guidelines; and appellate sentence review. He thought you should give a specialized body authority to make rational comprehensive polices that are balanced. Next, promulgate those policies so that they become presumptions, or maybe just admonitions, to judges as to what they ought to do. Then direct the appellate courts to look over the shoulders of trial judges to see if it makes any difference.
Well, that turns out to be a gangbusters proposal. And we have lots of empirical evidence, not the least, the convening of this meeting for the third year, that Judge Frankel had some good ideas. The notion of an administrative agency that has the institutional capacities to address policy in a somewhat more systematic way than legislatures, seems to have been sound and certainly seems to have worked in important ways. The idea of guidelines as a means to bring greater predictability and rationality to sentencing and to reduce bias and disparity seems to have worked. They have not worked perfectly, but there is clear evidence in many states that disparities were reduced when guidelines took effect. And third, appellate review. We don't have much systematic evidence, about how appellate sentence review would work, but I know that federal district judges would tell you that appellate review does indeed mean something in the federal court. The federal appellate judges have taken it seriously, as they have in other jurisdictions, although patterns vary from place to place. So the basic proposal turns out to be an effective one in suggesting how we could change things, at least in terms of rationality and disparity.
Minnesota in 1980 came up with this idea of interpreting some ambiguous statutory language and that it was possible to use guidelines to control prison population. And that turns out to work too, at least in Minnesota, Washington and in Oregon for a time in the 1980s. In Oregon, until more recently, you could show that guidelines that were based on what were known as "resource constraint", taking correctional resources into account, sentencing guidelines could indeed control prison population growth.
So in all those measures we have come a long way, we have learned that we can do these things that Frankel wanted us to do and we have made some progress. However, there is some unfinished business.
From the very beginning there has been discussions of the means of devising guidelines for less serious crimes, for misdemeanors. The original Minnesota guidelines were only felony guidelines. Pennsylvania did indeed extend to misdemeanors, but only as to the decision of whether people went to jail or not, there were no specific sentences that were distinctly and uniquely about misdemeanors in the Pennsylvania guidelines. In Oregon under Kathy Bogan there was a very serious multi-year effort to devise entirely separate misdemeanor guidelines that changed the nature of the penalty depending on the nature of the crime. This effort eventually failed, they could not make it work. That issue remains unresolved as a matter of policy, at most places.
There has been a lot of talk over the years about the problem of prosecutorial discretion under guidelines. In the 1970s and early 1980s particularly, the argument was made that if we are trying to improve consistency and fairness and predictability, if we "tie the judge's hands" won't that shift power to prosecutors. There was a lot of stewing by academics and in some states as a policy matter. Washington guidelines had language in the enabling legislature that directed them to devise some kind of guidelines for proper exercise of prosecutorial discretion. Well, that did not lead anywhere, there were prosecutorial guidelines but not much else. That problem has gone away, not that anybody has figured out a way to encompass the exercise of prosecutorial discretion in sentencing guidelines, but it has gone away because we have stopped paying any attention to it.
David Berner from Washington state, who was one of the architects of those guidelines, offered a perspective on prosecutorial discretion in an article in the American Bar Association journal last spring. He said, you know academics may worry about prosecutorial discretion and judges may worry about prosecutorial discretion, but legislators don't. Legislators have more confidence in prosecutors to make decisions that legislators will be happy with. So there is a reason why when people testify in legislative hearing rooms about the prospective increase in prosecutorial powers under guidelines, they seldom elicit any kind of policy response and it is because that if there is a place where legislators are happy having discretion lie, it is probably most comfortably in the hands of prosecutors.
And then finally non-prison guidelines. Norval Morris and I wrote a book a good many years ago called "Between Prison and Probation, Intermediate Punishments in a Rational Sentencing System" in which, clearly naively in retrospect, we urged that guidelines need to take account of that, which of course they do. There are all sorts of good principled reasons and policy reasons why guidelines ought to encompass intermediate sanctions and other community-based penalties. But it is very, very hard to figure out how to do that, as at least every one of these sentencing commissions knows. A fair number of state commissions over the years, Minnesota, Washington have tried very hard to think about how you build intermediate sanctions to the guidelines that apply in jurisdictions in which local correctional programs are run by and funded by counties. And it is very, very hard. So that remains open.
The big issues that remain open are figuring out how to deal with misdemeanors, if at all, intermediate sanctions and then this bigger problem of how do we maintain the core idea of Frankel's proposal, that sentencing really ought to be fundamentally about justice. Justice means like cases ought to be treated more or less alike, or there ought to be articulable reasons that distinguish them. That sentences ought to be proportionate, people convicted of offense "X" which is much more severe than offense "Y" should not receive lighter sentences or vice versa and that judges should be accountable. There should be rules and predictability, fairness and consistency and so on. That issue won't go away because we will never quite get it right.
So with that said, I would like us to talk a little bit with this group about what I call the political lighting strike. I don't know whether the issue of criminal control or sentencing policy issues is getting any better now than it was five years ago or than it was ten years ago. We all know that whether it is three strikes rules or the television ads about the jailhouse doors swinging closed, irresponsible policy initiatives make it very difficult to achieve balanced comprehensive sentencing policies. The jurisdiction that I know of which has worked hardest at this because, I guess, of some genius in the drafting process, is Massachusetts. It has figured out the most novel way yet to try to bring rationality to the entire system of sentencing guidelines. I want Frank Carney to tell us a little bit both about what your legislature told you to do about mandatory minimums and what you have done and why.
CARNEY: There was as much serendipity at work there as genius, however, because the original statute, the truth in sentencing law in Massachusetts precluded the commission from going beyond any mandatory minimum terms in developing sentencing guidelines for those crimes that did have mandatory minimums. What I mean by serendipity is that there was a four-part series of spotlight articles by the Boston Globe, that focused on mandatory minimum crime. The articles stressed with antidotal evidence and other information the harshness of the mandatory crimes. In Massachusetts the longest sentence is a 15 year mandatory sentence for distribution of 200 grams of cocaine or heroin. Also the Globe series pointed out that most of the people doing very long mandatory minimum terms were more likely to be street-level dealers, more likely to be mules, than they were to be kingpins in the drug trade, and further, even had some rather unsavory implication about the forfeiture laws in Massachusetts. It pointed out that if you were up in the drug hierarchy and you did have useful information to exchange or you did have assets to forfeit, you might be able to negotiate a sentence other than the mandatory minimum term. That series of articles caused a stir in our legislature which established a committee to investigate mandatory minimum sentencing and held hearings that were very well attended, very well publicized. Each of our chief justices of our supreme court, our superior court, our district court, and our chief justice for administration and management testified strongly against mandatory minimum sentencing. The vast majority of the testimony was against mandatory minimum sentencing, specifically for the drug crimes, (we have other mandatories for firearms crimes for drunk driving, those were not controversial). But in any case, this legislative committee had the inclination to abolish mandatory minimum sentencing for the drug crimes, but could not quite get itself to the point of proposing that to the full legislative body. It was able to use the sentencing commission as the buffer.
We hear a lot about how the sentencing commission could insulate legislators a little bit from the political fire storms. What the legislature did was to amend the truth in sentencing law to permit the sentencing commission to go below those mandatory minimum terms in establishing the guidelines for the drug crimes and other crimes with mandatory minimums. That became part of a prison bond bill which included new perspectives for intermediate sanctions. The bill went to the governor and the provision regarding the mandatory minimum sentences was vetoed by the governor, came back to the legislature, and the legislature, believe it or not, overrode the veto. So the sentencing commission now has the authority to propose guidelines that go below the mandatory minimum sentences. The sort of genius of this proposal is that the mandatories are not abolished and a judge would still have to put in writing the reasons for going below a mandatory minimum sentence but the sentencing commission, for the drug crimes only, has established guideline ranges, that are in most cases well below the mandatory minimum terms for those crimes. That is how the proposal stood when it was incorporated in that fashion into the report that was submitted to the legislature this spring.
TONRY: Chairman Maloney, I assume that Michigan like every other state has a rash of mandatory minimum laws, do you have a three strikes law?
MALONEY: No, sir.
TONRY: No three strikes law. Your commission is in its early days, how is it beginning to deal with questions like incorporating mandatory minimums?
MALONEY: Michigan does have one of harshest set of mandatory minimums for drug penalties in the country. The HARMELIN case which came out of the United States Supreme Court several years ago was a constitutional attack on our mandatory life without parole for delivery of 650 grams of a Schedule I, and the United States Supreme Court found that punishment constitutional and that is still on the books. We have a series of gradations of mandatory minimums. Schedule I's, including any delivery of cocaine or heroin theoretically carries a mandatory one-year prison sentence. However, that is ignored by the judges over 50% of the time, and they are giving jail time or straight probation as opposed to the mandatory minimum. As far as three strikes are concerned, three strikes did not pass when it was originally put to the legislature. One of the Chairman of the Judiciary Committee felt that it was not appropriate to pass it in light of the fact that they were going to give the guidelines commission the authority to rewrite the guidelines in our state. So while the three strikes effort was going hot and heavy, it was turned back and not passed in our state.
We have a two-year gun law. We have no specific guidance from the legislature as to how to incorporate the mandatory minimum into our guidelines so we are free to deal with that issue as we please. The direction I think we are heading at this point, this is obviously subject to final commission action, is that in almost every case the mandatory minimum is going to trump the guideline range. The range would ordinarily be assigned for that crime would have an asterisk in the box and say that if this is a mandatory minimum crime, apply the mandatory minimum. There is no support that I can see to benchmark the drug sentences to the mandatory minimums as of right now. That is not to say that it might not occur in the next couple of months. There is absolutely no legislative support in our state for repeal of the mandatory minimums. There are a number of groups out there advocating for repeals of especially of the mandatory 650 law, and, to a lesser extent, the mandatory one year for delivery under 50. But there is absolutely no legislative support, so they will be sitting there for quite some time.
TONRY: I'm sort of working back chronologically. I wanted to ask Dave Diroll, you have guidelines which took effect recently. How did you deal with this problem and what do you have in the way of mandatory minimums and three strikes and similar laws and how did your guidelines if at all respond to it?
DIROLL: We are a little confusing in that we passed our new sentencing structure last year but delayed it a year to take effect this year. The guidelines just took effect July 1 and we have no idea how well it is doing so far. Mandatory sentencing in Ohio, like most states started in the 1970s and really crested in the 1980s with mandatories for violent crimes, drug offenses, offenses with firearms. In that climate, our sentencing commission agreed fairly early on that we would keep the mandatory sentencing that we had. Many of the mandatory sentences we had were specific in terms of years: you would have a five year, 10 year, 15 years, 7 years, 6 months, depending on the crime. What the sentencing commission recommended and the legislature adopted was that conduct would still carry mandatory prison time. However, a judge would have some discretion within range of the prison terms available for that level of felony, so there is more discretion within mandatories. Another thing, there is a pretty popular mandatory in Ohio of 10- 12 years of incarceration for felonies committed with firearms, and it is three years automatic time on top of the underlying offense. What the sentencing commission recommended was that rather than always having a three year mandatory there, that we would have the three year mandatory kick in when a firearm was actually a factor in the crime when it is used, displayed or brandished or somehow indicated in the crime. If the firearm is incidental that would only be a one-year mandatory. We swallowed the mandatories, but we tried to tailor them a little better in terms of the conduct itself. As to three strikes, there is legislation pending in Ohio regarding three strikes. I think it is dead for this session, in part because of the work of sentencing commission. We have a mandatory for repeat violent offenders where we tried to narrow the strike zone and just talk in terms of crimes rather than treat all burglaries and robberies alike, talk in terms of crimes and violence they cause the victims. In situations where offenders have gone to prison before for a high level of felony that actually caused physical harm to a victim and then come back and cause or threaten serious physical harm for an additional high level felony gets you into mandatory range that goes beyond the basic range. But our attempt there was to try to tailor it to the impact on the victim, rather than have geriatric wards of burglars and robbers down the road.
TONRY: Judge Eaton, we all know that Florida is a state where crime control issues are never politicized, your commission probably has not had the kinds of problems some of the others have in dealing with wholesale legislative increases in penalties and three strikes laws. I'm wondering if that impression I just offered is a correct one or whether your commission had any challenges to deal with in this area in the past few years?
EATON: Florida's commission deals with these challenges on a daily basis. Florida has a Republican-controlled senate for the first time since reconstruction days in the 1860s. This new group of people have decided that they know all of the answers and they are going to be tough on crime. They have done what they can to dismantle a system that I think is a very good system in Florida. I was listening to Justice Abrahamson this morning when she was talking about how the academic community and the government ought to work together. It is very interesting because the people that our legislature listens to are not in the academic community at all, at least it does not seem to be. On the issue of mandatory minimum and that sort of thing, to its credit the legislature did abolish most of our mandatory minimums back in 1993 when we revised our guidelines. What they did instead was add additional points for the use of firearm so that these offenses are still punished by prison sanctions. But, because we have statutorily created reasons for departure and our common law is still developing in that area, oftentimes you are able to find a reason for departure and not impose a prison sanction.
I give an example of the person who is a drug addict and that is the engine that causes him to commit crimes. We are able to do a downward departure in that kind of case because of the fact that this person needs to have drug treatment and supervision and habilitation (instead of rehabilitation as we say.) But we have recently found that the Florida senate is now looking at that because we have some room in our prisons and instead of being happy about that fact, it looks like now they are trying to figure out how to fill those beds. Yes, it is a continuous problem and we have to work with it all the time. There was a very serious effort last year to abolish the sentencing guidelines, and I think they will try to do that again this year. The problem is they run up against a blank wall when they finally have to decide how they are going to manage prison resources without guidelines because Florida is one of the states that ties its guidelines to available prison resources and costs in our state are enormous. If they take away guidelines and just let judges sentence I don't know how they are going to hope to control the prison population.
TONRY: This is a horrible thing to do to you Sandra, Judge Eaton just used the phrase "abolish the guidelines" and I hate to use that as a lead-in to ask you about something. Two questions, one is to what extent as I understand it Wisconsin guidelines were voluntary guidelines that did not give rise to appellate review for defendants or the state, but nonetheless, how had your guidelines taken account of these kinds of issues? And second, was the politics of crime control part of the background to the demise of Wisconsin commission, was it toughness concerns that the commission wasn't aggressive enough, wasn't responding to the public sentiment?
SHANE-DUBOW: All of the above. I think it is a complicated patina of reasons. As to the mandatory minimum situation, we found to our surprise that the guidelines in those kinds of cases were already recommending terms that were at the mandatory minimum level or exceeded them slightly. As we acquired mandatory minimums over the last decade, we did not have to alter many guidelines or to have the guidelines trumped by the mandatory minimums. Wisconsin has also adopted a somewhat curious practice in calling mandatory minimum sometimes, presumptive mandatory minimums which of course allows the judge to deviate because the word presumptive is there. That certainly was so in some of drug statutes and in fact some of our mandatory minimum provisions with drugs statutes were subsequently put back to presumptive mandatory minimums so the mandatory minimum issue is complicated in Wisconsin and was not necessarily a major problem.
As to the reason for the demise of the commission, there are a variety of complex reasons, but among the ones that I think are interesting is the fact that the Attorney General's office became concerned about the possibilities of the guidelines beginning to generate many more appeals. They were concerned about their workload, so we found ourselves in the odd position of having the Attorney General sitting on the commission as a member and on the record supporting the guidelines but in terms of the practicality, being very concerned about whether or not the commission's work would ultimately generate more work for an overworked staff.
Second, because our commission had initially been offered to the Supreme Court which turned down the offer to manage the sentencing guidelines, citing separation of powers issues and fiscal issues, some judges subsequently felt that any work of the commission was inappropriate and perhaps an unlawful intrusion into judicial discretion.
TONRY: So a complicated story, not one primarily of politics.
SHANE-DUBOW: Yes, complicated, but not outside of politics including the fact that during the year of the commission's demise both houses of the legislature came under control of the governor for the first time in many decades.
TONRY: I wanted to shift focus now to intermediate sanctions, whether it really is as a practical matter possible to incorporate intermediate sanctions in a meaningful way into guidelines. I want to start with Judge Gebelein, since the Delaware guidelines don't get as much attention in writing about sentencing as some others do, but actually Judge Gebelein's commission was dealing with these issues probably five years before anybody addressed them, maybe even before many of them were thinking about them. How is it working, has Delaware figured out a way in a meaningful sense to provide an array of sanctions that judges can use to fit the needs of particular cases as they see it and can you deliver the programs that your system contemplates; does it work?
GEBELEIN: That is a two part question, have we structured it and does it work? The answer is yes we have found a way of incorporating them into the guidelines. Our guidelines are based around a structured sentencing system that has five levels of punishment. Basically we have defined all of our sanctions into five different levels of punishment going from the least serious which is simply a fine and basically unsupervised or administrative probation, all the way up to incarceration. Going through what we call a level 2 which would be a regular probation, level 3 which is intensive probation or reporting center, level 4 which may be electronic monitoring, it may be a work release center, it may be a restitution center, it may be a halfway house or residential treatment. Level five calls for incarceration for a specific period of time.
Getting to the second part of the question, does it work? When we started back in 1987, so we are approaching our ninth birthday, we had less than one percent of our people who were in anything other than regular probation or prison. Now it is more than twenty percent of the people in the entire control of the corrections department that are under intermediate sanction, that would be level 3 or level 4. So we have dramatically expanded the resources there in the number of programs that are available to put people into.
This has been relatively simple for Delaware compared to some states because of the fact that we have a unified corrections systems; we don't have county jails or county courts, we have a state- wide system, both on the court side and on the corrections side so anybody that goes in, goes to one place. I hesitate to think about how you do this in California or some state where there are 80,000 counties and millions of people. The resource aspect of it is perhaps the most difficult. We have had waiting lists for the intermediate sanctions. In order to prevent the widening of the net, if you are putting somebody in a level 4 halfway house or home confinement unit or residential treatment, the policy is that they have to wait for that in prison. Otherwise if they could wait out on the street, maybe they didn't have to be in prison in the first place, that's the theory. That doesn't always work out in practice but it has prevented some of the widening of the net problem that you might have anticipated. It has resulted in a waiting list with a lot of people waiting in prison for those sanctions. Also, we have just embarked on a gigantic prison construction project in Delaware because of an increase in population in corrections. More than half of the slots that are being created are in intermediate sanctions rather than in the prison setting. The legislature in putting together what is called a prison construction package and therefore very popular but is really spending a lot of money on intermediate sanctions. I think, they have finally recognized that if they spent it all on prison cells they would get far less effectiveness for the money involved. I think it has become an institutionalized part of the funding process.
TONRY: Rob, I want to follow up with you. We all know that North Carolina's guidelines have probably incorporated non-prison sentences into their guideline scheme more than any state so far. I want you to tell us what you think the likeliest problems are going to be in making North Carolina's system for incorporating other than prison penalties into their guideline system.
LUBITZ: Intermediate punishments was a critical part of the whole strategy that we had in North Carolina, the idea was that if we are going to put violent career criminals in prison that we needed to find other types of sanctions for less serious, non-violent offenses so we basically built zones in our sentencing grid. Violent career criminals go to prison. With less serious offenders, the judge has the option of either giving prison or an intermediate punishment. I think the big change was that in certain areas of the grid for the non-violent, first-time offenders, the judge does not have the option of prison. There is a presumptive intermediate punishment, seen as three zones.
In terms of how it is working and the problems we have encountered. I don't think that there was a particular problem in setting the concept that there should be an intermediate punishment. What we do is we give the judge a menu of intermediate punishments, it can be boot camp, a residential facility, a reporting center, electronic monitoring, or intensive supervision. The two problems that we have encountered are not opposing intermediate punishment but determining what intermediate punishment is most appropriate for the offender. Sort of the second level of matching, called targeting or matching, that has proven to be extremely difficult. We have clearly expanded the resources available to the judge through a state-county partnership act where we provided money to the counties to develop what they felt were the type of intermediate punishment that were most appropriate for their offenders. What we are finding is that matching is very hard to do. In some areas, counties have expanded, for example, electronic monitoring and for other programs, and we later find that some of those programs are underutilized. On the other hand, we have some of those intermediate punishment that have waiting lists. So that is something that we continue to work on, but that is the most critical problem, the matching of the proper intermediate punishment for the proper offender.
The other obstacle we face is the acceptance by the public, judges and prosecutors, that an intermediate punishment can be a punishment in lieu of imprisonment. The newspapers still report and the legislators still ask, how many people are going to prison. The concept that you can punish people outside of prison and have those punishments be credible, and more cost effective is a difficult change to get over and I think that is where we are having some problems. Even though we see offenders a lot of times say don't put me on intermediate punishment I would rather go to prison and serve my sentence because they see that as much easier than having to get drug treatment and work and pay back. I see those as the two critical issues. The matching issue but also the change in the surface public's attitude because I think that when people think through this they are supportive of intermediate punishment but the first reaction is that if it isn't prison, then it isn't a punishment.
TONRY: Richard Van Wagenen of Washington, I recall that Washington's initial guidelines, twelve years ago incorporated some special provisions for other than prison sentences, there was an exchange system for community service, so many days for community service for so many days of prison time. It was probably the first steps that any guidelines commission had taken just as the prosecutorial guidelines were the first of any guidelines commission anywhere had tried to take to address that problem. I assume that your commission has been revisiting this question of trying to create guidelines for intermediate sanctions and community penalties recently. Can you tell us what's happening in Washington and whether you are likely to make any substantial changes to the Washington guidelines to try to extend their scope to include these other penalties?
VAN WAGENEN: I think that is really right up in the air as we speak. We have had a workgroup in the commission looking at the standards and ranges, particularly in ways to expand judicial discretion and the use of intermediate sanctions and they have explored several alternative and have not yet hit on one. We are talking right now about taking our grid, which goes down to a very short jail term as low as 0-30, 0-60 days, and essentially merging all of those cells in the lower grid into a 0-12 months range, encouraging the use of intermediate sanctions which are permitted now but as you say have not been widely used. And we are hung up over how long the supervision period should be and what the sanctions should be for violations but the fear of net widening is very real. The counties are quite concerned about the impact of this kind of thing on them and justifiably so. We are discussing whether in a given county you simply give the judge the 0-12 range, allowing him to impose affirmative conditions and affirmative conduct which by and large are not allowed under our system.
TONRY: How is Florida dealing with this?
EATON: Use of intermediate sanctions in Florida depends on where you are. Most of the intermediate sanctions that are available are available either because the Department of Corrections has given, for instance, a residential drug treatment facility in a particular area or it is a county-funded sanction. The one that comes to mind as the most prevalent to me is the one in Orange County which I think is an outstanding program. Orange County is the Orlando area and the Orange County jail is a rather large modern facility that will hold about 3500 people. When you come into that facility the first thing they do is give you an orientation, an assessment type of program. They figure that if you are in jail more than five days that you are probably not going to bond out, so this is right after arrest that they start this. You have your choice, if you want to get with the program with Orange County then you can get with the program, if you don't then they put you in one of these minimum cells. A facility that complies with the statutory minimums in Florida but it does not have any amenities at all, most people do not like to stay there more than a couple of days and then they are ready to get with the program. Once they get with the program, they go through the assessment. We all know that a good percentage of people who come through the system are involved with drug addiction. The first thing they do with that is they let them address that through a jail, in that facility that is called the Horizon program.
The Horizons jail is a direct supervision jail which is very modern and they go through drug treatment there. Once they have completed, then they can get into the next step, the Genesis program. The Genesis program is also a direct supervision and an educational jail. The theory that they have in Orange County jail is that drugs and the lack of education and social skills are the things that create a lack of opportunity. This lack of opportunity creates the propensity to commit crime so they try to address those different things. If you do not have a GED they make you try to get one. If you want to get involved with vocational education and they encourage it they have four separate programs you can go into. One is construction and there is a lot of construction in Florida. One is electronics, one involves office equipment and computers, administrative type of work and the other is mechanics. The local community college is responsible for teaching courses in the facilities at this particular jail, they are very modern and the programs are very encouraging and interesting. Once you finish that particular program and I am assuming at this point, that either the inmate has plead guilty and been sentenced to the jail or perhaps he hasn't and just keeps going through until his case comes to trial. Once you go through that if you complete the vocational aspects of it then they put you into a work release center, which is a fantastic facility. They have an employment service that works with over 5,000 employers in the central Florida area who will take people from this particular jail. The criteria that they use in order to employ people is that it has to be a job that has a promotional potential, no hamburger flipper jobs in this thing. You go into a potential career pattern, so it is really very interesting. When you come into that facility they work you pretty hard. You work during the day, they either take you to work or if you have your own car they let you drive. Any money that you earn, comes back to the facility and gets deposited into your trust account. Money gets disbursed from that trust account depending on what your situation is. If you owe fines, part of it goes to pay fines, court costs, public defender liens that sort of stuff. If you owe child support, some of it goes for that. They pay $50 a week toward their room and board, give a minimum kind of allowance and anything that is left over goes into a savings account.
When they get onto a day reporting system they are allowed to live outside of the work release center. A lot of these people have never had enough money for the first and last month down payment on an apartment and for a telephone. All of a sudden they've got that and they got a work history of 3-6 months so that they have held a job longer that they ever had in their life. It is an interesting concept, they claim that the recidivism rate is significantly lower. I think that is what criminal justice is all about, lower the crime rate. They do not have hard statistics on it yet because the whole program has only been in place for a couple of years but it is a fantastic facility and if you are even in central Florida , they would love to have you come by and see it.
TONRY: Frank Carney, a skeptic about intermediate punishment would say on the basis of experience in many states that it is one thing to try to establish policies governing the use, it is another to create a mechanism for assuring that the programs are available on the ground. In Massachusetts I know that one of the big issues that has been dealt with is this thing called intermediate punishment in your report, how are you going to pay for them? What is the commission doing, or trying to do, or trying to cause to happen, to ensure that throughout Massachusetts that the facilities are available so that the guideline choices that you wish to give to judges are real?
CARNEY: I think that is a very good question. Massachusetts did integrate intermediate sanctions into the guideline framework on the grid. It emulated the North Carolina approach to have an incarceration zone, an intermediate sanctions zone, and a discretionary zone. It proposed a continuum of four levels of intermediate sanctions according to the degree of restriction or constraint on personal liberty. In the legislative process, it was not coincidental that some funding for the intermediate sanctions program came out as a result of some other amendments to the prison capital construction bill. The governor had submitted a bill in the neighborhood of $800 million for prison construction. It came out of the legislature at $487 million with the signal that we are not going to try to completely build our way out of this prison overcrowding problem. The other significant thing that happened in that process is that the legislature earmarked $50 million in the capital construction bill for intermediate sanctions, and it created an office of community corrections in the office of the chief justice. So this is the first promising aspect of the answer to your question, the sentencing commission provides a framework for what is an appropriate type of offender to be referred to intermediate sanctions. There no where exists the intermediate sanctions programs in the community to support that framework right now. So one of the major challenges is to get the momentum going for the resources to develop a state-wide network of intermediate sanctions programs in Massachusetts.
TONRY: Chairman Maloney I know that Michigan has a community corrections act that has been up and running for five or six years. I assume that your commission also is thinking of extending the current Michigan guidelines or revising them to encompass non-prison choices.
MALONEY: Absolutely.
TONRY: Is the community corrections act that you now have adequate to provide programs on the ground, will it make your guidelines real or how is your commission thinking about this problem of actually creating the programs.
MALONEY: We have a community corrections program that has been operational since the late 1980s. There is an office of community corrections inside the department of corrections which administers the program. Counties or groups of counties on a multi-county basis apply each year for community corrections money and are given the money if the grant is accepted by the state out of the general fund to the local units of government to spend pursuant to the plan that has been submitted to the state. There has been a traditional fight given the fact that the community corrections program is based in the department of corrections, and of course, the department of corrections is interested in state prison diversions. The counties are sometimes interested in jail diversions, keeping people out of their overcrowded jails. There has been this traditional tension between the two and the statute is sufficiently ambiguous to allow running room for both sides to accomplish their goals.
Our enabling statutes which created the commission mandates the use of intermediate sanctions for all those who have a maximum guidelines score of 18 months or less. That is a six month expansion of present law because we have a 12 month jail cap in our state and we are not going to change the 12 month jail cap either, there is no support in the commission for that. What we have tentatively decided to do is as North Carolina did, designate intermediate sanction grid cells in each of the grids that we have and allow the local unit of government based on their priorities and the judges who are part of that process, decide what specific intermediate sanctions the individual gets which can include jail. We are at this point not going to address any specifics beyond that because Michigan is not a homogeneous state. We have differing needs based on the offender demographics of our differing counties. Detroit's problems are significant different from Marquette in the upper peninsula, which is significantly different than the needs of the community corrections program in my county. The bottom line is going to be, at least for now, that we are going to grant the judges the flexibility to decide what intermediate sanction to use, based on what he has available. The end result however is going to be that to the extent that there is going to be a shift of some offenders from prison bound down to intermediate sanctions, that more state money is going to flow to community corrections program in our state. Ultimately the state will conclude that that is cheaper than having them be prison bound.
One thing that we ought to strike from our vocabularies, if you are trying to sell this idea, is "alternatives to prison". That does not ring very well with the public and you have to use the word punishment. If you say community based punishment and there is some "ummph" behind it. Of course when they see the sheriff's work crew out there and they are in the orange jumpsuits, that is a visible sign that the offenders are giving something back to the community. So the word punishment tends to get you a little bit more in the political realm.
TONRY: David, how does Ohio new guidelines deal with this issue, are there enough resources in the communities to make intermediate punishment guidelines real and if not how did you factor that into your planning process?
DIROLL: The Commission did a few things about intermediate sanctions. We started by doing away with suspended sentences and adding sentencing directly to the sanctions, figuring that that was an aspect of truth in sentencing that gets overlooked when we talk about prison terms. We wanted to give these sanctions, these punishments, their own integrity by sentencing directly to them. Now the risk to that, of course, is that they have to work because people will know more clearly what offenders face, both offenders and the public. The sanctions are formally authorized, listed in the code for the first time, they had been there in bits and pieces around the code but brought together and listed as residential, non-residential and financial in one part of our criminal code. The eligibility was broadened, for every one who doesn't face a mandatory term. There is, of course, guidance to steer judges toward intermediate sanctions for certain offenders and that is policed by the defendant's right to appeal. The bottom line is, is there funding to make this effective and to local government there was a sense that the state was dumping a lot of people. I think in a broad numerical sense if our projections are correct, it is a lot of people although if you spread it out over Ohio's 88 counties and 11 million people, the feeling of "the sky is falling" is probably hyperbole; it is just raining a little bit and we will be able to make some adjustments. So what we did was shift some money in the state budget to strength local corrections and specifically earmarked some money for local jail diversion for misdemeanants so that it could clear some space for some of the felons who would stay at home to allow for that. There is a tremendous expansion of something called community based correctional facilities in Ohio. Those are residential, rehabilitative kinds of short term places for felons that are secure so that community punishments encompass a broader range of residential sanctions which has a little more public sympathy.
TONRY: I want to presume on the prerogative that somebody moderating a panel can be a little self indulgent. I told you that I was asked to begin this by saying a few words about where were we twenty years ago and where are we now and what have we learned. I gave some history about Judge Frankel and disparity rates under guidelines, now I want to go back another decade to the 1960s, not the 1970s and I want to compare it to the 1990s and I am going to ask the panel to quickly tell me how full of hot air they think the following observations are. Of course you will all be entitled to your view about these observations. If you go back to the 1960s before Frankel wrote his book in 1971 and 1972, before Kennedy in 1974 introduced the first legislation that eventually lead to the creation of the U.S. Sentencing Commission, before in 1978 the Pennsylvania and Minnesota legislatures enacted their enabling legislation or any of that stuff happened, before California, actually before Maine in 1975 became the first determinate sentencing state and abolished parole. Go back ten years earlier and with the benefit of hindsight we can see that ten years earlier in the mid 1960s all of the social and cultural and intellectual influences that lead to those changes in the 1970s were there and if we had only recognized them then we would have realized that the days of indeterminate sentencing were over, or at least they were in peril.
We would have seen that in the late 1950s there was a book by Frances Allen called The Decline of Rehabilitative Ideal which pointed out that correctional programs make more promises that they can keep, that there are real civil liberties and individual rights issues raised by the enormous discretion that indeterminate sentencing gives to judges and parole and probation and prison authorities. In the 1960s the prisoner's rights movement came with great concern about racial bias and about arbitrary and capricious decision making. In the late 1960s there was a general movement throughout the legal system to bring the notion of due process to a whole range of policy decisions including the criminal law and there was a famous book by the man who was the leading administrative law specialist in the United States called Kenneth Kulp Davis called Discretionary Justice and it was in a way Judge Frankel's claim but not by a judge and not by a criminal law person. It was five years earlier, and essentially said look at what happens with the National Labor Relations Board or the Securities Exchange Commission or any other federal administrative agency when it has to deal with law and regulations when those laws are applied or misapplied and now look what happens to parole boards. What rights does a prisoner have when he comes before a parole board and he thinks that the wrong decision has been made? Davis pointed out that then there were essentially no appeal rights if the prisoner thought they had been mistreated by a parole board.
All those changes were in the air in 1960s that lead to things like concern for disparities, concern for accountability, judges have great power and by God they ought to be subject to laws and rules like they are in any other case and there ought to be ways to second guess what they do, those were in the air. It is easy now to look back and say all the ingredients were there and the stew just needed to coalesce, they needed to be put all in the same pot and eventually all these changes would take place. I wonder whether in the 1990s we might be on the verge of another one of these substantial transformations like the transformation in the 1970s. There is a long history in any realm of public policy, or in any realm of cultural experience, of cycles. We go between periods of romanticism and periods of idealism or realism. In sentencing, we have gone through determinate, indeterminate and back and forth in the last century but in our time life moves much faster. It took a hundred years from the peak of indeterminate sentencing, or the full realization of indeterminate sentencing values in the late 1870s to 1900 to wash away by the mid 1970s. The question I want to ask and I'm going to give you a little bit of evidence and then ask how you all react to this. Is it possible that with things happening so much faster in just twenty or twenty-five years the cycle might once again be changing back in a different direction?
Here is some of the evidence I want to give you. In every realm of evaluation and professional writing there are once again many claims about the effectiveness of treatment programs. President Bush had a commission called the National Commission on Model State Drug Laws which actually began a chapter of one of its reports with the phrase in quotation marks "Drug Treatment Works". I think there is a fair amount of creditable evidence, but at least there is a powerful conventional wisdom that well managed drug treatment programs, reasonably targeted can reduce offending rates and drug use by active drug using offenders and there seems to be a lot of evidence for that. The RAND Corporation is about to issue a report on the national evaluation of the TASC program, Treatmental Alternatives to Street Crime in a number of cities purporting to show by as rigorous an evaluation as they can do a very significant crime diminution, drug use diminution, on the part of people in the TASC program compared to the control groups that they used. I don't know much about this, but those of you from a correctional background know that there are many claims being made for what are now known as cognitive programs in prisons, and outside of prisons for their effectiveness. There is a whole industry for some reasons I don't understand based in Canada of people claiming that a whole wide range of correctional treatment programs now work, sex offender treatment programs, and again you can always find literature reviews in which people caution us about the inadequacy of research designs and the limits of overgeneralizing and so on but nonetheless there are beginning once again to be pretty powerful in the sex offender treatment literature that well targeted programs, if they are well run programs can have a demonstrable effects in reducing later unwanted behavior. That's one kind of evidence.
The second is on June 13th in this case called Koon versus United States, a Supreme Court decision whose meaning is unclear because the meaning of any Supreme Court decision is always unclear but nonetheless one reading of the Koon's case, Koon is one of the police officers who was convicted of the videotaped attack on Rodney King in Los Angeles. The Supreme Court said lots of things but one of the things they said was that in general that appellate courts should use an abuse of discretion standard in deciding whether judges had appropriately departed from, disregarded the guidelines. Now, we need to know what that means in the long term, but one theory is that that was the Supreme Court saying there has been a lot of controversy about the federal guidelines for a long time, judges complain, outside critics observe or claim that they are too confining and they are too narrow and they tighten discretion too much and here is the Supreme Court saying "back off appellate courts, the judge is there he or she makes the decision, if the judge has clearly abused discretion, of course think about it and overturn it but don't get into fact finding yourselves let the judge do it." Well that may turn out to be a fundamentally important finding about the federal guidelines or it may not but it sounds like it. A week later on June 20 in People versus Superior Court of San Diego County, the California Supreme Court all of whose members I believe were appointed by Republican governors of the last 15 years or maybe one or two who weren't, unanimously in fact gutted California's three strikes law on what to most constitutional lawyers was a fairly strained reading of the three strikes legislation to conclude that it did not say what it seemed to say which is if the prosecution alleges and proves the prior convictions the judge has got to impose the mandatory penalty the three strike statute seems to specify. That statute had some language saying that the prosecutor, the prosecutor, could move to have the judge disregard some of the previous convictions. The prosecutor could pull the sting of the three strikes law said the California statute and the question was even though the statute did not say it, could the judge do the same thing without the prosecutor filing a motion for it. The court said yes. On constitutional grounds if the legislature had really meant to give the prosecutor that power and not the judge, that would be a violation of separation of powers notions and they couldn't have meant that and therefore the statutory language probably doesn't really mean quite what it says, but it should be read to imply that of course if the prosecutor could move to do, the judge could do it without the prosecutor moving to do it. That's a pretty radical decision in the state where this has been as politicized a set of public issues as in any state in the United States.
And then finally about a week later in Montgomery county Maryland a prosecutor names Andrew Saunner who was working on a policy to change drug prosecution policies in Montgomery county, outside of Washington, got scooped by the Washington Post who three or four weeks before he wanted this to become known ran a story saying Montgomery County prosecutor to refuse to prosecute low-level drug cases. Now I'm sure the headline was worded more articulately than that, but that was the jest of it and initially there was a firestorm and the county executive and the police chief in that county were saying this is a zero tolerance county we will not tolerate that kind of policy by our prosecutor. And lo and behold it turned out that when the policy become better known, it was basically a policy that said we are not going to automatically prosecute every drug arrest. Given violence in the background, given a history of repeated drug prosecutions, given active gang involvement and some other things, of course, we will prosecute. But in the absence of those things we will divert to treatment programs or we will demote this case to a municipal level to an ordinance violation level and not treat it as a felony. It turned out the entire tenor at least in the media of the issue has changed. From the initial flurry, this is a profiles in courage effort by conceivably misguided prosecutor who does not realize the politics of law and order in the United States. As it has turned out, the Washington Post has done a good job on it; they got the Baltimore prosecutor to say that has been our policy all along. We would never have said that was our policy, but we have always used the triage approach to drug prosecution. You can't waste public resources by processing nickel and dime cases. Lots of prosecutors around the country were saying the saying the same thing. Andrew Saunner was maybe a little more courageous than some in going on record and saying no, rational approaches to drug policy requires you sometime don't throw the book at everybody you arrest, has now flipped entirely it seems. It seems as if Saunner is getting a substantial amount of public support as if he hasn't jeopardized his future political career by talking about these issues in a rational, nonpolitical way.
Those are tiny, tiny developments but nonetheless it seems to be possible that there is something in the air in this country that it isn't leading to anybody campaigning for President or Senator or Congressman on a banner of let's empty out the prison and let's repeal our three strikes laws, but something in the air and its in the air for a number of years as the influences in the 1960s were in the air for a decade before they gave rise to the statutory changes that bring us all together in this room in the mid 1990s. It seems to be possible that things like this are harbingers of the change in the air that surrounds us that may well indeed in the longer term, five years, ten years, signal a leap back to a different approach to these kinds of issues and thus highly political approach to these sorts of issues. So I wonder is you could comment briefly. Richard do you think there is any possibility that we are seeing the beginning of a change or not?
VAN WAGENEN: I think to the extent that that may be happening, I see evidence of your first hypotheses that treatment works growing in popularity, I see that in my state in a step by step limited way. I think the California decision and decisions like that are very interesting, we have not seen evidence of that in our case law but maybe that will come. I haven't seen any sign of diminishing enthusiasm about prosecuting drug cases although we have had a drug court experience in our largest counties that is encouraging. I think that what will keep determinate for a long time to come is the dollar issue and the fact that pretty much without dispute it is the way that you match policy to resources in our state and in many others and in the federal system the dollar is becoming more and more acute and the guidelines will provide in the future a mechanism to round down as they have in the past provide a mechanism to round up they could be used both ways. How you work the politics of that is something else and it is very hard to foresee I don't see much likelihood that we will go back to a parole type ten to life type of system, at least in my state.
DIROLL: I think that when you talk about the academic literature and the things that we look on predicting what is happening, there are also lots of books written that we have forgotten that weren't quite that prophetic. At any rate, I think that after we do battle in juveniles and we try to apply these concepts there over the next five years or so I suspect there is going to be, I don't know if it is going to be the return of the kind of indefinite sentencing, Model Penal Code and that sort of stuff that I grew up with. We have a pluralistic system and we are never really satisfied with what we do with criminals, so we are always trying to think of better ways to do it. I think we will go back and pick up some of the good things we did in the past and reject some of the things we are doing now in a couple of decades.
SHANE-DUBOW: This is a complicated issue, I'm not sure the notions of treatment or rehabilitation or habilitation ever went away. I think they got buried. It seems to me that structured sentencing attempts have been rather gross intrusions of attempts to set standards and that there have been all along nestled underneath or amidst the structure, individualized decision- making by judges, prosecutors, agents, even arresting officers. It may be that there are just little peaks and valleys of where we come down on that. I think there is an ongoing tension in the law between absolute standards and recognition of individual differences and that tension directs our generations of plans of how to deal with criminal justice. So I don't think the virtues of indeterminate sanctioning or broad notions of discretionary decision making ever went away, but neither do I think the ideas about structured sentencing are ever going to fully going away now that we have developed them as fully as this. Very provocative ideas and possible evidence.
CARNEY: I think it is a good insight. I think the pendulum keeps on moving and from the 1960s to the 1990s. Right about now it has moved as far as it is going to go and there are signs that it is moving back and I think the vehicle from what I see in Massachusetts is sort of revitalizing the respectability of rehabilitation, the concept of intermediate sanctions. Intermediate sanctions at the front end of corrections and at the back end. Sure they have this notion of accountability and supervision of the offender but there is also a very strong treatment component being reintroduced under the rubric of intermediate sanctions. I think that I agree with you that that is in the wind.
LUBITZ: I do think that the public is much more rational than we give them credit for. I believe that case in Maryland shows that. The first reaction is throw up your arms, but when you understand issues more, the press and the public are much more rational. But I think we are going to see somewhat less politicization of crime because we are coming up against a cost resource wall. We can't afford to build, to increase penalties. I think legislators and politicians on both sides are recognizing that and are now looking for other ways out of the situation they have painted themselves into. I think you will see more willingness to look at other approaches. It will be slow but I think we are seeing that.
GEBELEIN: I think you are reading the tea leaves in a way that may actually be playing out already and when you mentioned the drug treatment, the whole drug court movement I think is an example of that. Two and a half years ago you could put all the drug court judges in the country in a small conference room in Alexandria, Virginia. This year they had a conference and there were over one hundred courts at that conference and there is probably another hundred out there that no one knows about. What that seems to be saying it what is a drug court but an indeterminate sentencing system? You base the sanctions on the treatment success or lack of success as people go along. That sounds like something out of the 1960s and not of the 1990s, but that is a movement that is sweeping the country. You look at the educational as you mentioned the cogitative behavior programs that they are putting in the prisons , education works to reduce recidivism, it seems to be established. So maybe there is a trend there that I don't know how that is all going to work into sentencing guidelines eventually. In Delaware we have a state wide drug court now and it is sort of aberration from the guidelines because the judge maintains control over the sentence so what do guidelines mean in that reality.
MALONEY: I think it is very early on the effective treatment program's claim, I know there is substantial debate in my court among my colleagues regarding the effectiveness of our drug court although it is supported by the judiciary. I agree with Rob in terms of if there is going to be a substantial transformation, it is going to be colored green. I think that this is a point in time when the members of the legislature and the executive offices across the countries are taking a look at where their state budget money is going. Their resources and revenues are not expanding greatly these days and in Michigan we are up to 15% of general fund budget in corrections. We had a watershed this time for the first time, the executive's office recommendations regarding prison building were turned down in part, that is the first time that has ever happened. I think that if we are in a substantial transformation it is because there are other reasons why legislators and the executives want to spend money and they do not want to continue to have these double digit increases in corrections resources.
EATON: I agree with some of other members of the panel, I think the future focus is going to be on accountability in the criminal justice system because of the limit of fiscal resources and I think we beginning to see that. We might see some states, mine may be one of them, where structured sentencing goes into the ash can for a couple of years so that everyone can learn how bad they are going to miss it. I think that something like we have now is going to end up coming back because we simply cannot spend much more money on program and prisons and things that are not necessarily productive. I think once we get to that point there is going to probably be a call from the public to be more accountable as to how we spend money in criminal justice and once that happens it is going to be interesting to find out that nobody, not one jurisdiction in this country, not the federal government, not any state government has even identified who is in its criminal justice system. This is basic to me, it seems to me we ought to know who is in and who is out but we have never done that. We have never given the criminal system a mission statement, anyone involved in management principles knows that you have got to have a mission statement for an organization. If the mission statement were to reduce the crime rate, why of course that would change the whole political aspect of how legislators focus on crime and they would have to start doing things that we all know are important -- prevention, habilitation instead of rehabilitation, intermediate sanctions and probably some innovations to try to reduce the crime rate. I talk to victim advocates people quite often, I haven't found one yet who would rather have not been a victim in the first place instead of being a victim who has been compensated.
TONRY: I think that is a fine final statement.
Lunch: PROFESSOR WALTER DICKEY "Now, The Hard Part"
Sandra informed me that you are sophisticated politically and I want to ask you to do something about that and that is set aside your political sophistication for a few minutes. Everybody seems to be politically sophisticated these days, and I have a feeling that this like a lot of fields, it has the effect of getting in the way of substantive problem-solving. I know when I talk to my law school classes about crime they always want to talk about the political dimension. They all know about the politics of the problem, and one of the reasons that they want to do that is that it is easier to talk about the politics than to talk about the substance of it, how to do something about it. I personally think that our inclination to jump in that way, while characterized by some people as practical may in fact be very impractical because it gets in the way of more helpful solutions.
The second thing I want to state is that I want to assume that guidelines achieve proportionality, limit disparity and deliver punishment in proportion to the crime. I want to assert that and leave it out there on the table because that really is an assumption that I want to build upon, and an assumption about which I want to ask a series of questions because the title of my talk is "Now, the Hard Part". It seems to me that the hard part comes after you have achieved proportionality, limited disparity, and achieved some sort of just deserts in a sentence. I think the hart part is, what is possible after that.
Is anything possible, should it be possible, what is possible, how would we achieve it and most importantly for this group what role would guidelines play in whatever we try to advance beyond the values that I just articulated. Let me come at this problem in a couple of different ways. One way is to ask a question that I hope it is not impertinent of me to ask and that is this. Why do principled judges, some, react negatively to sentencing guidelines? I don't mean the judge who simply likes the opportunity to exercise power and doesn't like limitations on that, but the principled person who has sincere concerns about the existence or implementations of sentencing guidelines. Seems to me there are a couple of different answers to that, some judges object on a separation of powers ground. They say this really allocates sentencing authority in a way that I don't think is consistent with our form of government, the way authority is allocated in our constitution or the way I think it ought to be. I don't think that is any means inevitably the case, it is probably true of some systems and certainly not true of others. But that is at least one basis for objection though I don't think it is really the primary one.
I think the primary objection that I hear from judges that I talk to is that they have purposes for imposing sentences that are not served by guidelines. And put simply and reduced to greater simplicity, judges want to save lives when they sentence and they want to save communities. They may want to save the life of the person in front of them, they may want to save the life of potential victims of the person in front of them. They may, as a result of the stories that they hear, see a community in a state of disintegration and they may think that this offender has contributed to that or they may think that this offender can contribute to the rebuilding of that community and by and large they have a very "do good" orientation. They may want to incapacitate one person and not another, they may see a problem of a general kind, they want to try to do something about it. They may feel limited just because they are a judge, judges obviously have limitations on what they can achieve though they may feel that the guidelines further limit them beyond the point which they should. It's true that the judges can depart from guidelines though the reasons for departure may not necessarily satisfy a lot of people including a lot of judges. One of the principle reasons for departure is often to advance the prosecution of another person. And that superficially at least has a public safety purpose, public safety being achieved through the prosecution of this other individual perhaps who is engaged in more serious behavior or in behavior that is connected to the offender that is before this judge. I say superficially because frankly I think that while that may be served it is probably only served in a limited way. I think the reason for that departure probably is more likely a kind of justice reason though even there I'm not sure that a lot of justice is necessarily achieved by it. I say justice because one feels a sense of justice if a related offender is prosecuted for an offense that that related offender committed. It brings some sense of proportionality and justice if we have two people we think have been engaged in similar behavior one perhaps more serious than the other, we think the other ought to be prosecuted if the first one is deserving of prosecution.
Frankly my personal belief is that the reason for those departures have more to do with the fact that that is what we in the criminal justice system are in the business of doing. We are in the business of arresting, prosecuting, convicting and sentencing. We like to believe we are in the public safety business and I think that in a degree we are, but to a great extent that it is almost that bureaucratic impulse that drives that. What conclusions would I draw from all of that, let me repeat I think current guidelines are durational, designed to achieve proportionality with respect to those convicted. Other purposes that might be served by sentences are not necessarily well served and perhaps frankly cannot be. It may be that we ought to satisfy ourselves and be happy with what we have got. Although even there I think one has to hesitate when one even thinks about punishment or just deserts as the objective because the guidelines to a great extent view punishment in a sort of objective sort of a way. They don't take into account what I would say is the subjective nature of punishment. I can't tell you how many inmates I have heard, how many candidates for intensive sanctions here in Wisconsin who say "three years in Waupon (a maximum security prison) I can do standing on my head, right? The bracelet, reporting all the time, community service, all this other stuff, forget it I don't want it, I want to go up, I want to do what I got to do in Waupon I know how to do what I got to do in Waupon."
Now you could take an awful lot from that, but if what we are asking that offender is which delivers more punishment, the bracelet, the intensive sanctions program or three years at Waupon as Waupon currently operates, I think the answer is that there is a lot more punishment delivered to that person by the intensive sanctions program. Although again we tend not to ask the subjective questions, we tend to objectify these sorts of things. It seems to me that if we really want to get closer to proportionality we ought to start to take into account just the effect of the punishment on the individual because I think there is a very surely a subjective nature to it or a subjective component to it. This brings me to the question, if the basis for judges' concern about sentencing guidelines has to do with purposes, is variation in sentence appropriate for certain purposes. Again I want to stress variation within a proportionality guideline. I think a couple of questions emerge from that. The first one is, what purposes? The second one is how would you achieve it within a guideline system? Seems to me that is the very hard part. And as I said earlier, as to that achievement I would like to leave on the table the idea that we would maintain a guidelines system much like the ones that we have heard about here that basically look at offense severity and criminal history as the basis for deciding what sentence in a particular case. How would we do it, what would the purposes be served? Let me list a couple of purposes and then get to my favorite one, public safety.
I don't want to dwell on these, one I want to mention though is what I call celebrity deterrence purposes. Is that a basis for departure or for variation in sentencing. The example I want to use for celebrity deterrence is Michael Erving. He is the wide receiver for the Dallas Cowboys for the football fans among you and for the non-football fans among you I don't know if you watch these sorts of things but the National Football League has got a guidelines system for drug offenses. The first offense where you get caught and don't turn yourself in is you get suspended for four games. Well Michael Erving got suspended for five games, first offense, departure from the guidelines, why. The commissioner of the football league said that the reason they gave him five games instead of four was that he was so well known and the Dallas Cowboys were so well known. I started to ask myself, what does that mean exactly, what are trying to achieve by saying you, you famous guy you get more time, because why, because you are famous and because it brings the NFL into disrepute, maybe that is the real reason. Because we are going to deter other people because of this, maybe, maybe not. Who are we going to deter, other celebrity football players maybe. Are they going to be deterred if they don't think they are going to get caught. I don't think so, but there is a lot of this sort of around. We certainly see universities engaging in celebrity deterrence or celebrity departure because they certainly treat better known students different from lesser known students, presumably it is for deterrence purposes. I think it probably has more to do with the fact that the university is brought into disrepute. Now should we depart for Michael Erving? I think if you went up to Green Bay, Wisconsin, the answer would be yes. And the extent of the departure ought to be through when we play the Dallas Cowboys because he has killed us the last couple of times we have played them and we would like to see the departure go for nine games, because I think we play them in the ninth game of the season. I got to tell you I have always been intrigued by these sorts of things, the morality question is a good one. That is, if justice for Michael Erving would have been four games, right but because he is well-known and because we want to effect the behavior of some other football we are going to stiffen the penalty. Justice would have four but we have redefined justice now to take into account this other matter, so it is going to be five, six, seven whatever it turns out to be. Is that really a moral disposition? For the benefit of others we are going to do what would otherwise be unjust to you, is one way of looking at that. Some other possible purposes, Mike Tonry mentioned the treatment of offenders this morning as sort of getting back on the screen. That obviously is one that immediately jumps to mind as a possible reason that is offered for departures. One that I think might be worth thinking even more seriously about is the restoration of victims and communities as the basis for departures. Something that I want to return to in a minutes but what I really want to talk about is departures for the purpose of achieving public safety.
When we think about public safety, or variations in sentencing to achieve it, I think for the most part we think about public safety being achieved in a sentence by varying its duration and the implementation of that sentence with respect to this offender. This offender is a public safety problem, this offender is deserving of some variation in the way the sentence is implemented perhaps staying within our proportionality idea to achieve public safety. My own view is that that is much too limited a view of what public safety is and how public safety can be achieved. Because our needs and problems are much, much greater, because I think public safety can not be thought of as simply a problem being presented by the offender before us. Public safety has got to be achieved in places with victims with offenders. It has a context, therefore inquiry into how to achieve public safety requires an inquiry beyond this offender into a context, the victim, the location, etc. Let me give you an quick example.
I was down in Milwaukee last week meeting with some police officers and some parole agents around some experiments that we are conducting trying to deliver probation and parole services in a different manner. We are trying to organize around neighborhoods, not traditional case load, and trying to identify public safety concerns in those neighborhoods and trying to identify what an appropriate role for probation and parole would be in delivering public safety. A police officer who was a crime prevention officer, a community police officer among three or four that were there, started to talk about what happens when you engage with the community. He said, "you know I was at a community meeting not too long ago and I got beat up about the prevalence of drug offenses and offenders, and drug sales about certain communities in Milwaukee. What I did was I went and got the statistics and one of the locations that they identified as a very heavy high crime area was 9th & Concordia, and when I got the statistics for 9th & Corcordia, I discovered that in the three month period we made 93 drug arrests on the corner of 9th & Corcordia."
I thought that the implication of what he was saying was see, we are doing our job. Now I wanted to say did it occur to you that maybe arresting 94 is not going to the solution to the problem of 9th & Concordia and I was thinking to myself suppose I was the judge, right, and I am attentive enough to the cases that come before me to see that this is the 93rd case in three months from 9th & Concordia and here I am I am going to give him his year in prison or his probation or whatever the guidelines call for. And because I'm conscientious I'm concerned about 9th & Concordia and I'm concerned about what is going on there and I'm concerned about what I am doing. I just used 93 years of correctional resources and I got to say that I have substantial doubts about whether I did anything about 9th & Concordia.
Well I happen to know that we didn't do anything about 9th & Concordia because I asked the cop about it and he said it is so unsafe, we don't even like to go there, meaning the cops. So you ask yourself as a public safety problem, there is something going on at 9th & Concordia that we need to figure out what to do about it. Here we are exercising all this criminal justice authority and power, including the sentencing authority and power to try to deal with this problem in this very atomized and individualized sort of a way with no apparent consequence other than obviously the expending of a lot of resources, but not delivering anything in way of public safety at that location that makes any difference to anybody. Not only can I not go there, not only can the good citizens of Milwaukee who don't want to involve themselves in drug transactions go there, the police department can't go there because it is so unsafe. I think one reaction to that might be, that is very interesting but what does that have to do with sentencing and what does that have to do with sentencing guidelines. Let me come at it in a slightly different way, this question of public safety. You see 9th & Concordia is an disintegrated community and when we think about the exercise of the sentencing power, I think we tend to do so in a context which is not a disintegrating community, it is an intact community. It is a community that has agents of social control, formal and informal that disintegrating communities do not have. And so when we exercise the sentencing power with respect to this middle-class, lower middle class person in this together community, we think about an array of agents of social control that already exist in that place and we are going to add to that array by the exercise of the sentencing authority. Maybe it is going to be probation, maybe it is going to be intensive sanctions, it may be all kinds of things but it is going to draw upon the other resources that already exist there. The problem is, the crime problem in this country, while it may exist in intact communities, is most serious in disintegrating communities where that array of agents for social control do not exist. That suggests to me that we have think about a different role for the criminal justice system or at least a more thoughtful and pointed use of our current resources because to the extent that they assume a world that has other agents of social control in it, they are making a incorrect assumption. It may suggest what the criminal justice system ought to be doing is creating or nourishing other agents of social control so that it can play a complementary role towards the delivery of public safety. I think that some people might say I still don't understand what that has to do with guidelines, and I think that is a very good question. Through I think the people who would argue for guidelines have got to answer another very good question and that is if we spent all the money we spent on those 93 guys at 9th & Concordia, implementing your guideline system and made ourselves feel better with our just and proportionate sentence but did not do one thing for public safety in that location, why were we spending all that money.
So, what is the problem? It seems to me the problem may be this. The public safety problem is a very complicated one that we don't understand very well, even we people who work in criminal justice. It is much more complex, it is not well understood, it tends to be seen in individualized terms, we tend to do individual jobs, like sentence individual offenders. Secondly, I think it is clear that police and communities are developing different methods for trying to deal with their public safety problems that sometimes use the criminal justice system sometimes do not use it in a whole variety of ways, sometimes relying heavily on the sentencing authority, sometimes not. Though it seems also very clear to me that to a great extent the rest of the system is out of sync with a lot of what police departments and communities are doing about their public safety problems, and it seems to me that one of challenges is how can you bring in other actors in this system to bear on public safety problems in ways that act in concert with communities and police departments to deal with things more effectively than they are currently being dealt with. Finally what role would sentencing play in trying to deal with those public safety problems. That's the hard part, getting beyond proportionality to safety with a sophisticated idea of what safety requires. I think there are a couple of things one might ask and I am going to ask them really as you will see to no necessary conclusion. I would ask a series of different questions.
The first one is what information would we need in order to sentence for public safety. If safety problems are more complex that I think we currently understand them, it seems to me the answer is you would have to sentence for public safety purposes in a whole variety of different ways because different contexts would require different responses. The second question is what role, if any, does guidelines have to play in sentencing for public safety. Put another way, how would we guide these decisions? Well let me come back to my statement about proportionately and let's take an offender who according to the guidelines got four years and let's assume that we are committed to that because it is proportionate and just within the system that exists. I think we need to think about how we want to implement that four years, what we want to use it for and see it in a couple of different ways. One way that I think we should see it is that four years is four years of someone's life that we have some control over and can use as we wish to achieve a variety of purposes including public safety purposes. Instead of suggesting that the implementation must be in a knee-jerk sort of a way suggest that what we have got with our proportional sentence is social control for four years that we are going to implement in a variety of ways, partially or wholly for punishment, perhaps for incapacitation, perhaps for public safety depending upon the nature of the problem that this person presents. The second way of looking at, and I sometimes think of this as suppose that four years is like a room. You walk into that room, and it is a pretty big room and you could do a lot of different things in that room and maybe you ought to do a lot of different things in that room. Maybe you ought to seal it off and divide it into two parts, there are all sorts of things you might do in that four year framework of that person's life. When I say four year framework I don't mean to suggest we should think about it as pertaining to just this individual person, because another way of looking at that proportionate sentence is that it is a decision to spend $100,000 perhaps at $25,000 a year in a Wisconsin prison on a public safety problem that relates to this person who committed a crime in this location.
Well, what does that mean for 9th & Concordia, it is kind of interesting when you start to tally it up. It may be an exaggeration, but take those 93 guys they arrested, I'll bet they were good arrests, too, so we are going to get convictions in 90 of the 93 cases and maybe we are going to give each one a year in prison. Look at the amount of money we are going to spend on crimes committed at 9th & Concordia with very little public safety consequence. Should we instead think about that investment as one we ought to devote towards public safety at the location where that behavior occurred. And when you start to think about it in that way, how many businesses could we open up at 9th & Concordia with all the money we can going to spend on those 93 guys. Even the $100,000 that we are going to spend on the guy with the four year sentence would go a long way towards delivering public safety if public safety was our purpose. But really public safety is incidental isn't it; dealing with this offender is our purpose. We talk about the public safety implementations of it, but if we really understood public safety in its complexity I think we would talk about it in a very different way and we would probably do things in a very different way. One way of looking at all of this is, this greatly complicates and enlarges the responsibility of those who would guide the allocation of correctional resources through the exercise of the sentencing power because all of a sudden this understanding of the nature of the problem and how this sentencing power might most usefully be allocated becomes much, much more difficult.
Let's get back to politics. I think some people would say well that sounds good, but our political system just does not allow for that sort of understanding of problems and it does not allow for the allocation of resources in the way your comments suggest. But frankly I'm not sure that that means we should end the inquiry there, we shouldn't stop asking, we shouldn't start searching to see whether we can understand this differently and deliver things differently. One of the reasons that I say that is thinking about the things that Michael Tonry said this morning, he said there is something in the air and I think he is right on target. I think the question is what is it and how is it going to be guided in the future by leaders in this country. I would be really dismayed if what is in the air becomes a return to the rehabilitative ideal as it was articulated in the earlier part of this century. Because that, it seems to me, has many of the same deficiencies as public safety defined as dealing with this offender. I don't believe that offender specific attention to these problems comes close to dealing with them. If what we do is say one of two things, which I think his comments suggested we might, one is we are going to get into deep-dish prevention as the solution to some of the problems at 9th & Concordia and elsewhere. I don't think that that is going to play, I don't think that is going to last, I don't think that has credibility. We don't know whether deep-dish prevention works and more importantly it doesn't deliver anything to us tomorrow when we want something to happen. It promises something twenty to twenty-five years from now and that is too long to wait. The other alternative is that we are going to get into the rehabilitative idea where we are going to treat this person. Again, I am not against treatment by any means, but to the extent that that suggests that we should still understand the problem as atomized has the very same limitations as thinking that we are going to deliver public safety by punishment. It doesn't understand the complexity, the context , the ecology of the behavior and unless we start to develop a system that is responsive to that. It seems to me that the pendulum swinging that we were talking about this morning is bound to continue and will basically not have any alternatives other than the ones that are on offer which seem to me to be not very satisfactory menu of things that we might do about these very obviously serious problems. Thank you very much.
Lunch: PROFESSOR KEVIN REITZ "What Should the Appeals Courts be Doing in Sentencing Guideline Systems and Why Aren't They Doing It?"
I want to talk to you for a few minutes about the subject of appellate review in sentencing guideline systems and give you an early report of a work in progress that I have been carrying on now for several months. It has recently matured into a grant proposal with Michael Tonry and will be a bigger work in progress at some later stage. I wanted to give you an early report on analyzing the appellate court function in guideline jurisdictions as a systemic issue, not so much from the point of view of individual decisions and their impact or whether the judges got it right or wrong, but the systemic role of appellate courts in guideline systems.
I should say that, if you looked at the program for this meeting, the title of my talk is a little bit tongue in cheek and in some ways I regret it. Sandra called me and asked what I was going to talk about and I had to come up with something quickly and I said the title should be this: "What Should the Appellate Judges Be Doing and Why Aren't They Doing It", which is a little bit snide and that is the part that I regret. There is an implication that the appellate court judges know what is wanted from them and what is desirable in a sentencing guideline structure and for some wilful or deliberate reason aren't doing it and that is not exactly what I mean. What I think is true is that all of us in the policy community and in the academic community have not thought very much or very hard and not planned systemically for the appellate function in guideline systems which have grown up since 1980. I think that at least tentatively it would be a good idea to change that and to put some resources and some attention into the subject.
To provide some brief history, I think everyone knows that for many years and certainly at the middle of this century into the 1970s and 1980s, there essentially was no meaningful appellate review of sentencing decisions at any level, state or federal. Appellate review was only occasional, standards of review were very forgiving and so on. We had almost none of it. In the 1970s when guideline structures were first on the drawing board, when the idea of the sentencing commission was first formulated by Judge Marvin Frankel in 1972, when that idea was promoted by Norval Morris and Mike Tonry and others through the 1970s, part of the vision of the new sentencing structures that could exist with commissions and guidelines, was that the appellate courts would flourish with respect to sentencing issues. It was anticipated that a thoughtful jurisprudence of sentencing -- Norval Morris called it a "common law sentencing" -- would develop at the appellate court level and we would all become much smarter and more thoughtful and more policy oriented in the specific case decisional process about sentencing.
In this talk I am going to refer to that vision of the common law of sentencing or the thoughtful jurisprudence of sentencing as the "romantic vision" of appellate court functioning. I think it was romantic in a couple of respects. One, it was supposed to happen automatically, it was just going to be what appellate courts did because they are smart people and they are used to doing thoughtful, careful things and so there was a kind of automatic quality about the vision. Also, it was romantic in that it wasn't specified. No one talked every much about what it would mean to have a useful, important, more textured jurisprudence of sentencing decisions. In the 1970s the plan for sentencing commissions systems and guidelines systems included the appellate courts as important contributing players in the overall structure. Now, jumping ahead from the 1970s to 1996, I don't think it is too harsh to say that it hasn't happened. At least it hasn't happened much or often or in many jurisdictions that have sentencing guidelines. You frequently hear complaints about appellate court activity, but the romantic ideal of Frankel and Morris in the 1970s has not come to be. The other observation I guess you could make 25 years later is that all of us who are in the sentencing business today, and have been for any period of time, haven't really been giving much attention to the issue either. We haven't ignored it, but we have not revisited the question of what we really want and need from the appellate judiciary to have a smoothly running desirable sentencing system -- and I think there are things that the appellate judges can contribute. So that is where we are in 1996, and I would like to offer the claim that it would be a good idea to give some of our resources in the academic world and in the policy community to an investigation of this question: of what we consider good and bad in appellate practice and how we could perhaps improve the state of affairs where we see defects. I don't think it is the most important issue on all of our plates, it probably doesn't rank with prison population projections, but I think it is an important question.
Let me give you a couple of reasons. One, experience has demonstrated that an appellate bench that functions poorly in the system can create friction and difficulties that could be obviated with a little bit of advance planning, either in statutory drafting or guideline drafting, anticipating what the appellate court might do that you don't want to see, and encouraging what you do want to see. I'll throw out a couple of examples that I think are well known. In the federal system, many participants in the federal sentencing world, and many observers in the federal sentencing system have concluded, or at least have the opinion, that the federal courts of appeals have behaved in a way that no one really expected, that promoted the squeezing out of discretion from the trial courts. Appellate review in the federal system has been very rigorous. A lot of cases get reversed and, certainly from the district court perspective, they are unhappy with what the courts of appeals have been doing and that observation has been made by others. I don't think that people in advance saw this coming. The legislation did not mandate that this happen. The original guidelines manual, indeed the guideline manual the commission is still using has language that would promote a certain amount of deference from the appellate level to the trial court level in the federal system. But that is just not what the federal courts have been doing for the last 8 or 9 years. There is a recent Supreme Court decision that may change some of that, but this is an example of appellate court functioning that can make important differences in how the structure as a whole works and what levels of consumer satisfaction are within the structure.
One other example: I know the Minnesota commission is reeling a little bit and wondering about the effect of a recent single decision from the Minnesota supreme court that affects how binding their guidelines will be in the plea negotiation process. This is just another example of the fact that appellate court activity can be important to the functioning of the system as a whole. So, to the degree that we can anticipate problems in the appellate area, deal with them legislatively, especially in the newer stage or in the amendment stages of guidelines that have been around for a while, to the extent that we can structure the system so it runs more smoothly that would be a good thing.
Now I don't mean to dwell on the negative because I think there are important, even necessary systemic contributions that appellate judges can make to guideline structures. And I would like to make the argument that the affirmative role, the positive role, of the appellate courts ought to be seen under two different headings. Appellate judges potentially wear two different hats within guideline systems and in policy discussions about what we want from the appellate courts. In fact it would be quite helpful to think of two different categories of appellate activities. First, the appellate court are enforcers of the guidelines system. It is hard to get all of the trial judges in your jurisdiction to even understand what sentencing policy is unless there is some discipline, some recourse to appellate review to provide guidance below and to sometimes handle more serious disputes about how guidelines are supposed to be interpreted. The states that have meaningful levels of appellate review, I think it is fair to say, have a number of cases where really silly mistakes made at the trial court level had to be fixed on appeal. There seems to be a certain learning curve in guideline systems that appellate courts can facilitate. If you don't have enforcement, if you don't have an appellate court at least at some level enforcing guidelines, then the guidelines are advisory -- the trial court judges are the ultimate arbitrators in most cases. What happens is that it is more difficult, maybe not impossible, but more difficult to win compliance with the guidelines. It is certainly harder for a guideline commission or legislature to make alterations or micro-manipulations in sentencing policy and then get the trial bench to do it if there isn't a review mechanism. One sub-issue that comes up under the heading of the enforcement function of appellate courts is how much enforcement you want, and I will talk about that later.
The second kind of positive contribution that appellate courts can make we have to be a little more speculative about. I'm not prepared to give up on the romantic vision that appellate courts can introduce a more thoughtful level of discourse into the resolution of sentencing cases. We don't have many examples, we don't have an Oliver Wendell Holmes on sentencing or a Learned Hand of sentencing, we don't have the opinions to fill up casebooks that can train lawyers and judges in a high intellectual level of thinking about sentencing decisions. But I am not prepared to give up on that possibility. This enterprise of sentencing guidelines is a very young one, we haven't had them for very long and although it is hard to say how this is going to happen, I think the process of thinking, of giving more attention to the subject of appellate review may be a encouraging one for the development of higher quality case law.
Now, assuming that I am at all convincing, that this is a subject of worth spending time on, what would we do to study appellate practice and have a deeper level of policy discussion about what we want from our appellate courts and how we might get that from them. I propose that there are probably three main areas of concern that could be a matter of investigation that would be important.
First, we have a lot of data sitting out there. There are a number of jurisdictions that have had sentencing guidelines for years. Cumulatively, if you add jurisdiction to jurisdiction there are decades of data about appellate decisions. We could go back and analyze that and look for patterns, look for some sense of what has happened. I think we are in a better position now, than Norval Morris and Marvin Frankel were in the 1970s, to think about what is realistically possible to expect from the appellate court part of the system because we have a track record and some ability to specify what that has been. So part of the project I think that might be worth doing, is data collection, and an analysis to get a better handle on what we are doing. As far as I know, and I may be wrong, with the exception of the federal commission, the state commissions that exist either don't compile or don't report information about the appellate caseload flow and affirmance and reversal rates and things like that. That might be something worth doing and spending more time on.
Aside from empirical side, I think some of us need to give greater thought to the kinds of issues that I already alluded to about the elements that comprise the appellate role. The thoughts that I have given to you are the ones that come into my head having read a number of decisions and having hung around the field for a number of years. But I think considerably more thinking could be done on those subjects in a conceptual, policy-based way on what we want from the appellate courts and how we might mange the appellate case flow to get that.
The third series of issues are implementation issues -- nuts and bolts issues of statutory drafting, rulemaking and guideline drafting. That would encourage a scope of review, a standard of review, an attitude of deference of scrutiny at the appellate level that seems to be desirable given experience, given cross-jurisdictional comparisons. So those, at this point, seem to me the three major areas: 1) retrospective study, 2) theoretical, conceptual policy questions and then 3) implementation issues.
Now what I would like to do for a few minutes is give you a sense of some very preliminary numbers that we have generated in Colorado. When I say "we" that is me and a research assistant in Boulder analyzing stacks of cases and state data and so on, trying to figure out what can be measured in terms of appellate practice, what manipulations of the numbers making sense. We are still trying to find out if this is worth anything, whether it is worthwhile to do this. But what we have done is looked at the appellate experience for a recent year, 1995 or fiscal 1994-1995, depending on how the reporting works in each state, for four states: Pennsylvania, Oregon, Washington, and Minnesota. We have compared data that we have generated with data collected by the federal commission for appellate practice in sentencing cases. I have to make a caveat here: we are still having big compatibility problems and counting problems of various kinds, but we are getting a preliminary sense that is somewhat interesting, and maybe an illustration of what comes out of this sort of project might help you evaluate whether it is worth working in this area or not.
We started out thinking that it would be important to track something that we were calling "reversal rates" on appeal. That is not anything that I invented. Most of the literature on sentencing appeals, and I think the U.S. Sentencing Commission report, tells you what the affirmance and reversal rate is on appeal. For instance, the 1995 federal commission report says that, of every one hundred cases appealed in the federal system, 77% are affirmed and something on the order of 23% resulted in some form of reversal or alteration of the trial court judgment. We generated numbers for the states that were comparable to those numbers. Working with this data, there were a couple of surprises that arose.
One surprise was the federal affirmance rate was so high, in fact that 77% affirmance rate or the implied 23% reversal rate makes it look as though the federal courts of appeals are actually being more forgiving than their general reputation. It made the federal appeals courts look like they might be treating sentencing issues like a lot of issues; trial courts survive more than 3 to 1 on appeals. And, further, that affirmance rate in the federal system was higher than any of the states that we were looking at. Not a lot higher necessarily than Minnesota or Oregon, but higher, and that was contrary to our expectation. In Pennsylvania, where they have the reputation of almost no appellate review at all, we found the highest reversal rate measure where you first look at how many cases were appealed and then ask the question of what percentage of those were affirmed or reversed.
One insight hit me fairly quickly, that this number doesn't have a lot of meaning because the appellate dockets in the various jurisdictions are so different. The flow up to the appellate court in the federal system is like nothing any state has ever seen. The magnitudes are quite large. The federal appellate flow is about thirty times the size of Oregon or Washington, so that the affirmance rate on appeal is not telling us much about the appellate court impact on the system as a whole, and could be seen as a considerable distortion because of the differential appellate docket going up on appeal. So we recalculated some of these numbers and I thought up a new name -- the "disturbance rate", not the reversal rate on appeal. Maybe we should be looking from the trial court perspective at the probability that any given trial court sentence will be reversed on appeal because that is the systemic issue. The appellate docket is just a little piece of your system. What you want to know is how the system as a whole is affected. So we recalculated based on the number of sentences imposed as a whole, a different denominator. After doing this, the numbers flipped in a dramatic way. Now the federal appellate system by far, by many orders of magnitude, has the greatest impact on sentences across the board than any jurisdiction, by large numbers. Pennsylvania has the least impact in terms of its appellate intervention in sentencing decisions of any jurisdictions. To give you an idea of some of differences, in Pennsylvania the numbers for every 1,000 cases sentenced are less than one-half of one percent reversal. When you move up to the federal system, the disturbance rate or the impact rate of the appellate court in the federal system was 48 times greater than that. In between you have states like Minnesota, Oregon, Washington, which are actually closer to the Pennsylvania level that the federal level. But there are really enormous differences in terms of the appellate impact on the system as a whole.
I'm not sure that this is the best way to measure it, but at least this sort of number gets me thinking about some issues. We are just looking at gross magnitudes here, nothing is really explained. There are lots of factors for differential appellate tracks from the trial level to the courts of appeals. The federal system has a different kind of case than any state system, a different rate of appeal and so on. There are many big systemic difference that these numbers don't give you any clue about, but they do raise questions in a useful way. What we are looking at, I think, is that these numbers are kind of a proxy for how much enforcement is occurring in the systems. From systemic terms, a great deal of enforcement is occurring at the federal level and at least numbers like this get your attention and prepare you to ask where do we want to be. Where does our system want to be given the constraints that we have, the culture that we have, and the history that we have? We can now talk about these things in a somewhat particularized way. Also I think, and we haven't yet done this for several years cuts, but I think that one useful effect of monitoring the disturbance rate or the impact of the appellate system on trial courts may be that over years, commissions could watch that rate and it might indicate that something is happening in your system that might deserve attention. It is just another kind of monitoring data that might give you some useful insight into how your guidelines are working.
The last thing I will say about these numbers was that they help explain the fact that the federal appeals judges don't seem to feel that they are doing terrible thing to the district courts. But if you think about it from about it from the perspective of the appeals bench, they see the cases that come to them, not the world below. From the perspective of the appeals bench, they say " we are being just as easy on the district court judges as we always are, we are not off the charts in terms of our reversal rates and we think we are being pretty deferential overall". There is at least some explanation for that perspective because that is the slice of the pie they are seeing. At the same time, when you recalculate "disturbance rate" rather than "reversal rates on appeal," you can understand the district courts saying "we are getting clobbered, every year we get a couple back". Believe me, district courts remember when they are reversed, because their perspective is on the ground of sentences imposed and what is happening through the filters of which cases are appealed and then which cases are overturned. I urge that commissions that are seeking to track their appellate behavior think both in terms of what is happening among those cases appealed and also what is happening among all those cases that are sentenced, that are potentially subject to appeal, because different sets of insights come from different kinds of numbers.
I am interested in whether the people in this room think this kind of study is worth doing. Please let me know. The other assistance that you could give me is I often don't have much appreciation for datasets that exist on the state level. I know that Minnesota has an appeals dataset, although they don't report on the information. There may be similar reserves of information out there, and please tell me about if you have it. I'm not sure how I would discover it otherwise but more important than that, let me know whether I am barking up the wrong tree or one of the right trees. And finally thanks again, it is good to be back. See you next year.
Concluding session: Roving critics (PROFESSORS AL BLUMSTEIN and MICHAEL SMITH) "Suggestions for the Future of Structured Sentencing"
SMITH: I want to talk about my reactions to being here. My reactions are grounded in nostalgia because more than a decade ago, I was made a charter member of the New York sentencing guidelines commission. When I think back to those days I remember the excitement, the fascination, the focus of trying to sort through the very difficult, technical and political problems of guideline construction and how enormously satisfying it was to solve those problems. Now, in my case, when we finished the work, I looked at the product and said this is very dangerous -- in New York state's political environment at the time, and I participated in a successful effort to sabotage it.
But what is a roving critic, coming from that far away time, supposed to do that would be useful to you. First, it seems to me, I want to go back to where Michael Tonry, started and ask you this question: "What if Marvin Frankel had written a different book? What if he had issued a powerful call for the orderly, fact-based development, and the principled application of penal measures more likely than durations of confinement to accomplish the purposes judges actually have in mind when someone stands before them for sentencing?" Orderly, fact-based development and principled application of penal measures actually designed and more appropriate to accomplish penal purposes than durations of confinement. Now that is not what Frankel felt was most missing -- then -- but it is what I hear sentencing judges demanding now.
Now it is also possible to view this judicial demand as sort of skin-deep; as you scratch it, it turns out that the judge says "I can look the offender in the eye and know what to do." But if you then say, "No you can't, you know that is silly," and when you talk further with them, it becomes clear that what is going on in their mind is much more complex. No one has really asked them to articulate it, but going through a judge's mind at sentencing are concerns about the victim in this case, the family situations of the various people who surround the victim and the offender, the plausibility that some cognitive behavior program that she heard about at a cocktail party last week might actually be useful, and who knows what other things. The judge gets no guidance about how to think about these things, nor about the correctional options placed at the disposal of the court (about what the effects are, what the possible applications are, of the penal instruments). This is not particularly important today, in guideline grids where durations of confinement are what it is about. But I noticed that, after Michael Tonry spoke yesterday morning, there was a fair amount of discussion about the difficulty now being encountered by those of you who are trying to accommodate non-custodial penal measures within guideline systems. I think there is a link between that difficulty and our failure to specify the penal purpose of the durations of confinement arrayed in our grids.
I want to talk a little about how your future might look if you took on that problem of "orderly, fact-based development and principled application of penal measures" more likely than durations of confinement to accomplish the penal purpose associated with categories of cases. First, why might you want to do that? As an example, let's take Badger Stadium in Madison, Wisconsin, which holds, let's say, 70,000. Let's fill in with the good citizens of Madison and tell them the good news: "We have done it, we have now structured our sentencing so that we have reduced disparity, at least as we measure it, we have proportionality with respect to the burdens we place on people who have offended us, and our prison population growth is on track!" There would be silence in the stadium, and then people would reach for their wallets, and then they would tear the place apart. They would say "wait a minute -- is that's what we spent $380,000,000 on last year?" It doesn't make sense, in those terms. And that is something to worry about, it seems to me, because of the focus we have given to the guideline development work that has become our careers. So that particular thought leads to the territory that Walter was trying to open up yesterday. He gave the talk I would have given, so I will try to give the talk that he would give if he were here now.
Here are four issues that I want to mention. One, I want to talk a little bit about disparity of purposes, which certainly can co-exist with reduction or elimination of disparity of result in sentencing. Two, I want to raise some doubt about the virtue of our success at shifting the prison population away from non-violent and toward violent offenders. Three, I want to ask for reconsideration of the presumption that individual characteristics and circumstances are not relevant when choosing a sentence. Finally, I want to reference some of the issues that make incorporating non-custodial sanctions in guidelines difficult.
First, disparity of purposes. Here is one way of describing the problem. Let's say you have a general practice in a jurisdiction like New York City that petty theft by repeat offenders will be punished by 30, 60, or 90 days in jail, and we do a little guidelines work and pretty soon, the tariff is 60 days. We no longer have to worry about some people getting 30 and some people getting 90. It is 60. But what if -- as is likely the case -- a bunch of the judges who impose the 60- day sentences believe that by doing so they are going to deter theft among the general population, another group of judges believe that by doing so they will incapacitate enough of the really very active thieves to substantially improve commerce in the city, another group of judges think that the individual thieves sentenced to jail this time will be detered from further thievery, and a final group of judges think that the 60 days of drug treatment in jail will cure their thievery. Now I think there are two things of importance about this. One, I think this kind of disparity is ultimately very corrosive for the systems we create. We cover over the problem to some extent, by focussing so much on the result - the duration of confinement - rather than on the sometimes inconsistent reasons given for imposing it. Second, unless we open that up, examine it, and think about providing guidance with respect to the appropriate purposes for the application of penal sanctions in different kinds of cases, we will never be able to properly incorporate non-custodial sanctions into our sentencing guidelines. Why? Because non-custodial penal sanctions are very much more purpose specific than are durations of confinement. Now that is an assertion, there is an hour's argument I could advance for it, but let me just try and move on and come back to it in the specific context of individual characteristics, which I want to do in a minute.
Second: violent offenders "in", the others "out." For years now, I have noticed that we are supposed to be happy about this shift of the prison population toward violent offenders. In the time since my own participation in a guideline commission, however, I have spent a lot of time trying to construct and helping to mount non-custodial penal measures -- including several tailored to meet the purposes judges have in mind for violent offenders. Among the thing that I notice is that the violent offenders are often young, not deeply habituated in the criminal life style, at the beginning of a life which is simply open -- could be promising, could be a disaster but is potentially productive for them and for us. They are certainly energetic members of the communities from which they come. In many ways, when sufficient resources are at hand to protect the community (surveillance, control) while tipping the life towards productive rather than a destructive course, these "violent offenders are much easier to work with in the community setting than property offenders of sufficient seriousness and persistence to have earned them a cell in the past. Thieves are often deeply habituated to a life of crime, atomized, not connected to supportive networks that are the kind that help people redirect their lives. So I wonder a little bit about the possible waste of resources involved in shifting the prison population toward "violence." Obviously, it helps with proportionality, but, from another perspective, it doesn't make very much sense.
Third: individual characteristics and circumstances. Since Frankel, our concern about disparity has led us to try to wring out of our sanctioning system consideration of individualized differences that could lead to unprincipled differences in result. But is any consideration of them problematic? Let me try and reverse the proposition, and argue that failure to consider individual characteristics and circumstances leads to disparity -- and to overreliance on prison.
Take a characteristic like homelessness. Among the things you learn, if you try to manage non- custodial penal sanctions, is that people without stable residence and who have the other characteristics of most of our urban homeless populations are very much more difficult to punish, or to incapacitate, or to treat in a community setting than people who have a stable residence and family. So the homeless population is disadvantaged with respect to our non-custodial penal measures. What are the possibilities? We could say, in order not to risk disparity, that we will not use those penal sanctions. Another approach would be to equalize those circumstances of the homeless that prevent our application of such sanctions to them. For example, Judy Greene, (who I see there in the audience) managed our community service sentencing program in New York and can tell you many stories about how it was necessary to sometimes provide shelter, sometimes food, sometimes showers, -- lots of things -- in order to bring homeless petty thieves to a stability sufficient for us to punish them by having them report 70 hours over a ten day period to a work site to perform involuntarily servitude. I think that was worth doing, because otherwise there will be disparate use of community service. ZaZa Gabor will get to do involuntary servitude and most of the people I deal with would have to go to jail. That is not right, -- that is disparity. But would the cure be to require imprisonment, of everybody who doesn't have a house would have to go to jail and ZaZa too? Same thing goes for home confinement, house arrest electronic monitoring, -- a whole bunch of other penal instruments which are terribly useful for incapacitation, punishment, or rehabilitation (depending on your purpose) in the community setting.
That leads me back to point out that clarity and parsimony of purpose are likely to be essential ingredients in any successful effort to make room in our guidelines for principled way non- custodial penal sanctions.
So, what is the dilemma? The dilemma, I think, arises because of the focus on disparate results that we got from Judge Frankel, the methods that we have used to develop guidance and (until recently) the almost exclusive focus of our attention on custodial sanctions. The rusult may be that we have suppressed or retarded the development of our understanding of the purposes for which those sanctions are applied, which differ from case category to case category. Those puroses do not differ simply by offense type and prior record -- they vary with setting, its social ecology, context, and individual circumstances and characteristics. The task ahead, fortunately, is very complex -- our growing sophistication equips us to approach it. I encourage you to take purposes very much more into account in the guidance that you afford both the judges and the correctional personnel who have to implement the sentence.
BLUMSTEIN: First, I want to thank the people who organized this for inviting me here. It has been exciting to see some of the evolution and development of sentencing guidelines. It has been impressive to see the competence, the professionalism, and the commitment of this group to developing rational policy about sentencing and about guidelines. The level of discourse has really been much higher than I saw at the time I was more actively involved. I haven't been very close to sentencing (other than an occasional attendance at a Pennsylvania sentencing commission meeting) since Michael Tonry, Susan Martin, and Jackie Cohen and I were involved with a panel of the National Academy of Sciences that did a report on Sentencing Research in 1983. At that time there were just two sentencing commissions operating (in Pennsylvania and Minnesota) and some of the ideas were just beginning to gel. It has really been impressive to see how far that development has come.
Since then, I have been involved in research on issues of criminal careers and youth violence and drug policy issues, as well as currently a Center on Violence Research that I am going to be responsible for over the next five years or so.
Some of the areas of impressive progress that struck me were how much more widely guidelines are being used and implemented, and the sophistication with which they are both being developed and implemented. It has been very encouraging to see the growing use of impact analysis. For a long time on the Pennsylvania commission, the chair wouldn't allow the staff to even make a calculation of the impact associated with any particular change in the guidelines. In general, the argument was we just want to provide the sentence, and let somebody else worry about what the impact is. This was in marked contrast to the Minnesota process, which clearly said there had to be an appropriate balance between the resources committed to incarceration and to the toughness of the sentencing structure that we choose to impose. It is clear that there is a growing recognition that a capacity constraint is an important consideration for guideline structures.
It has also been impressive to see some of the development of population projections or population estimates. First, for planning, we need an expectation of what the population will be. But we also need that to feed the impact analysis. It has been exciting to see that a number of states are turning to the commissions to ask them for impact analysis on legislation they are considering. As the skill and as the technology in doing that gets better and as the communication links become better, it is one of the opportunities for restoring rationality into the legislative process. It has been interesting in that context to see at least glimmers of this pendulum swing that Michael Tonry was talking about. It is clear that the pendulum will be returning from a purely ideological stance of "toughness" as we develop the coalition between on one hand, the pragmatists who want to see a rational policy that accounts for system-wide considerations not just within the criminal justice system but within state budgets, and on the other hand the fiscal conservatives who are concerned about how much money we are spending in the name of toughness, so often with the primary beneficiaries being the politicians rather than the public generally.
I think a necessary task to forge that coalition is to put the political benefits of toughness on the same table as the associated costs. The impact analyses become opportunities for bringing those considerations together, and the sentencing commissions become the venues for seeing to it that those issues do get addressed together and thereby contributing to rationality.
It has also been exciting to see the richness of discussion and the various attempts to incorporate into sentencing guidelines the spectrum of intermediate punishments between "slap on the wrist" probation, on one hand, and prison or jail incarceration on the other. A rich array is emerging, and they should be worked those into sentencing guidelines. While it is exciting to see the commissions start talking about it, it is also depressing to see the legislatures ignoring the opportunity to provide the resources for doing that where the cost is appreciably less than the $20,000 to $25,000 a person-year that it takes to keep people in prison. I was struck by one of the states that said, the legislature cut our corrections budget by about $350,000,000 and they generously put $15,000,000 into intermediate sanctions. There persists this gross disparity between the ready willingness to put out whatever it takes for incarceration, and the very limited degree to which it is willing to support any of the variants on incarceration. Again, the sentencing commissions become the vehicles for forcing a recognition of these important trade-offs. It has been exciting to see some of the success stories, both in the development of guidelines, in doing them intelligently and rationally, and in communicating the rationality and appropriateness of those changes to the legislatures and to the public. I think it is very exciting news to hear of success stories like the one Tom Ross talked about this morning.
On the other side of the ledger, there are still a number of concerns and one of those is the retrenchment in a number of states of the sentencing commissions that were doing well; let's hope that as they ponder the absence of any structured sentencing process, we will see some of those re-established.
In the naivete of the earlier era, we thought the sentencing commission could be divorced from politics; we now see clearly that that cannot happen. Having served on a sentencing commission, I recognize that they read the political winds almost as quickly as the legislature. Commissions will vary considerably in the degree to which they will be responsive to the political winds or try to buck them.
One of the issues that has caused me to do some rethinking is some concern about the prior record score in the standard matrix format. There is wide-spread agreement about the offense- seriousness ranking (the one exception I would make to that is drugs and I will speak more about that later), but there are many different approaches to prior record score development. There should be some concern over what a record score of "three" means. One can get to "three" by a bunch of shopliftings or one can get to a three by a homicide. I am concerned that the meaning of the prior record score is being distorted by the many ways there are for mapping it on to some numeric scale. I don't think there is any easy answer to that. In part it derives from the commitment that everyone has to having a matrix. There is no question that the offense seriousness is one dimension of that matrix, and that prior record score is another part. (I might say that there are other issues that are at least arguably legitimate considerations like employability, community support, and family support.) The matrix format is something that derived from the good old days when we were limited to the two dimensions of a sheet of paper, and that prevented us from getting much richer than a matrix. Computers are now so ubiquitous, and very soon computer networks will allow each judge to have his or her own computer, and those computers can easily be connected to the central information resources of the sentencing commission. I think that it is about time that the technology of the 1960s and 1970s in use by most sentencing commissions started to catch up with the computer technology of the early 1990s. We can have a much richer array of information about how similar cases are handled, how a prior record is scored, about how it should be scored, and we can provide a much richer structure than is possible with a simplistic numeric score of prior record.
What I would like to encourage is much more attention, not only to dealing with the richness of prior record type information but a variety of other information that judges might invoke. They could use a menu system that is common in current in computers to draw on selected attributes of the case before them. Admittedly, the complex information won't be easily obtainable on a piece of paper. But, with everyone using computers now, that richness can be available to the defense, to the prosecution, and to everyone who wants it. How that information is used can be fed back immediately to the commission for their guidance on how people are deviating from the guidelines, and for analysis for reconsideration and revision of the guidelines.
Many people want to have fairly tight guidelines because of what I consider an excessive obsession with the issue of disparity. It is important to recognize that putting unlike things in the same box induces disparity, fully as much as putting like things in different boxes. As we make theses boxes very broad generic (as many of them are) we are also introducing disparity. So I would like to urge a richer structure, which is now possible by using more sophisticated approaches. Ohio, for example, didn't find that it needed or wanted a prior record score. It is using information on the offense gravity and letting other forms of information be presented to the judges so that they can invoke prior record information more subjectively; maybe that would be a direction in which some of you might want to explore further. That also provides the opportunity for presenting to the judges a much richer array of alternative sentences. Some guidelines just have in their matrix an entry, "intermediate punishment possible". Problems with that limited guidance might be alleviated if a richer array of alternatives were considered, with some guidance on which would be more appropriate to a particular case. One can have a richer array of the attributes of the case, of the offense, of cooperation, and that might give rise to a much richer set of opportunities and information presented to the judge.
This greater use of computer-based information should be carried out in a limited number of places that are ready to do this. The Office of Justice Programs and its various agencies should be encouraged to fund two or three agencies to start that exploration. It is going to involve a considerable investment, but it is going to benefit the entire community. That's the role of a federal agency to support operations of criminal justice services.
One suggestion I would like to make to this organization, which has done some excellent work in bringing together this community as a group to swap stories, to talk about experiences, and provide mutual help. I think it might well go a level or two deeper by collecting comparable information and developing a report on sentencing practice in the United States. It could pull together information on the various sentencing guidelines and information on deviations from them. It could collect the computerized data that are now available. It could see if some common formats could be developed. Even though we don't have uniform sentencing codes or practices, a real role for this organization would be to start working at collecting information from the various sentencing commissions that would provide guidance to each other as well as to inform the general public about sentencing practices in the United States. Having that information will provide a basis for estimating measures of punitiveness and the way it is changing over time and across the country. Such data could measure the racial disproportionality at various stages in the criminal justice system, particularly in incarceration and in sentencing, and how that differs across the country. It could provide an opportunity for testing and measuring the effects of variations in sentencing. There was some discussion this morning, for example, about the possibility of seeing any responsiveness in deterrence associated with the legislative changes. There is an opportunity to pursue that now. That group could also provide technical assistance to new sentencing commissions as they emerge and help direct them to commissions that have relevant experience, data and opportunities that they could pursue. Again, the Office of Justice Programs would be a natural to fund this effort, either through the BJA or the BJS. This would start to develop the collective competence in this area. It could work initially with National Criminal Justice Association (NCJA), or the Criminal Justice Statistics Association (CJSA), which already have staffs and so could start work quickly in those areas.
There are a number of political issues that I hope some of you would put on your agenda as vigorously as you can. It is clear that the mandatory minimums that are so pervasive in the country are clearly in conflict with the fundamental principal of sentencing guidelines and rational or structured sentencing. They respond to the "crimes of the month" that affect the legislature; they are acts of political passion. When the political passion dies on those issues there is no way to get rid of the distortion they introduce because it is almost impossible to get any of them repealed. It may be feasible to address the issue generically by sunsetting mandatory minimum legislation. A general sunset law that says that all mandatory minimum laws are rescinded two years or three years (or whatever people are comfortable with) after they are passed. The legislature can still choose to re-enact them, but it gives them a free opportunity to let it go by default after it has served whatever immediate purpose they intended.
A second issue is to contribute to the stimulation of the formation of the coalition of pragmatists and fiscal conservatives. Again I think the vehicle of impact analysis is a particularly appropriate one for them to come together.
Perhaps the most important issue in our criminal justice policy today is the drug war. It is a source of enormous racial disproportionality. One has to have some anxieties when one learns that 1/3 of Black males in their 20s are under the control of the criminal justice system -- in prison, jail, probation or parole. So deep an intrusion of the criminal law into so important and large a sub-group of the American population is an issue that has got to warrant some thinking, not so much even about racial discrimination in the execution of the law as much as about the scope of the criminal law and about the feasibility of addressing the drug problem through intensive enforcement. So much of that intrusion is a consequence of the drug war. It is so significant a factor in prison crowding and prison population growth and the expenditures on corrections. If we could halve the population in prison for drugs, think of all the slack capacity we would have for dealing with the more serious violent offenders who are so much more intrusive into our society. If the drug war were effective in what it is doing in terms of reducing drug abuse, which is clearly a serious problem, then maybe those prices would be worth it. But the futility of our current approaches warrants raising these issues, particularly when one sees the draconian level of the sentences being recommended and imposed for drug offenses.
In examining distortions introduced by the drug war, I would encourage you to focus on the issue of asset forfeiture. The jurisprudential aspects of asset forfeiture have been addressed in terms of double jeopardy and in terms of inappropriate confiscation. I think the macro aspect of asset forfeiture is the profound perverse incentive it provides to law enforcement -- prosecution and police -- to persist in the drug war at a high level. I accept the value in diverting these assets from drug dealers. All of the same forfeiture practices and policies could continue. But it is important to make sure that those assets go into the general fund where other assets properly belong and not as bounties for pursuing the drug war. Moving these into the general fund will disrupt this strange partnership between law enforcement and the drug offenders, both of whom have a strong stake in keeping the illicit drug industry going in its current form. I think ultimately we are going to need to focus much more on such macro considerations, some of which Michael Smith talked about today, some of which Walter Dickey talked about yesterday. Clearly, you have to worry about the details of sentencing, but eventually your agencies could become macro agencies in terms of consideration and assessment of crime control policy. One such policy that is critical at this point is the drug war, which has so many systemic impacts. I hope you might find a way to pay some attention to it.
NEWTON: One of the things that the U.S. Sentencing Commission did a couple of years ago was to do what you are saying in terms of trying to get at the macro issues. We have a very broad statute and it says something like expand the base of criminal justice knowledge. That is a pretty wide open package and we had a symposium on drugs and violence and it was a very successful symposium. It was about the time of the mandatory minimum discussions and we though we were really on the road to getting some movement in Congress. Our problem is that we could not attract the media, despite the fact that we had really high powered and effective speakers on these issues. I don't know if you have any ideas about how to do that sort of thing as we move to macro, because the only way I think we can get some movement in the macro area then is to go back and change the drug laws or change the policy perspective and that may require moving the public a little bit.
BLUMSTEIN: It is clear that you have to move the public and the politicians and the law enforcement folks who have a stake. If your agenda was to have a symposium and to hope that someone would pick up on it, then I think the result that occurred is probably the anticipated one. If you had a strategy of having a symposium so we would emerge with information that would be used, you could anticipate what you were going to get, and then plan how to use it in terms of getting it to an important legislator or an important political interest group. However loosely you may find it, you are better connected than most everyone else to the legislative process. You could incorporate as part of your symposium strategy how you will then move the legislative process forward.
Last December I was one of a number of people who were invited by Florida State University to a meeting they organized for a number of legislative staff people to talk about what was becoming the latest version of the "Laffer" curve in criminal justice. The presumption in the legislature was that deterrence would work well enough to permit them to pass draconian sentences without having to worry about the cost or prison impact because people would be deterred from committing the crimes. I thought they organized a rather well-developed symposium to try to get to these staff people, and then to try to move forward to get to key legislators. It was a part of a strategy to get to key leaders in the legislature who seemed ambivalent and unclear on the issue because the issues are fairly complicated.
The argument is don't just hold a symposium, but have a strategy of what you are going to do with the symposium.
SMITH: I don't know how to do that. I think, though, that there are things that one can say about our failed attempts that might help us. One thing that I would say is that there are areas of life in which by persuading people or presenting them with information you can move them from the preference for one thing to the preference for another. This automobile kills you if you drive over 30 miles an hour, buy the other, that kind of thing, but there are areas of life where that is not so. That is, that the effort to change our allocation of resources and our habits by persuading people to want something else is simply insufficient, and I think this is such an area because of almost an inadmissable reason why we have the preferences we do. But shifting preferences is terribly important, both for justice and for safety in my view, we have to do different things with our assets. I make these two propositions: 1) it seems to me that unless you have got something that actually is a better product at least for some purpose that competes, for example, with rage or desire to express outrage, at immoral behavior in unaccountable people, then develop it because if you supply it the market will begin to develop a demand for it. Until we start supplying real nourishment to whatever the desires are that wrap around the insatiable appetite for prison sentences, I think we are unlikely to persuade anybody to change their habits. We can get them to say different things, but they will vote for what feels good, not for what's good for them. I think there is an enormous amount of work to do, and I do think that sentencing guidelines commissions for a lot of reasons are actually reasonably well positioned to help in that long term, step-by-step process, with constructing instruments that are actually useful.
The second thing is that as Walter was saying yesterday about sentencing for public safety. I want to say two things about that. I agree with him, but I worry about a misleading implication. I think that it is perfectly apparent that the sentencing power of the state is not sufficient to generate public safety, in a way it is not aimed at that. It is aimed at the distribution of penal consequences and so forth. However, bad sentencing is injurious to public safety and good sentencing can assist in its generated, but it is generating by forces that lie way outside the criminal justice system. We need to be clear about that lest we make claims for powers over which we have some responsibility that are unrealistic. But again I think about how are we going to ally with people who do have the capacity to generate the safety that people want and how can we make the instruments of penal power useful to those endeavors. To me those are much more important questions now than they were ten years ago, then I was worried about disparity. Now I am worried about how we promote such allegiances because I think that is the avenue out. But I do not think that the door can be opened and we can walk through it, I think it is a very long term effort.
BLUMSTEIN: I agree with the second half of what Michael said, and I think we desperately need rethinking of that. I was struck by the first half about the ability to change people's opinions, values or preferences. It is clearly limited, but if preferences in the political process are based on misinformation, then getting better information to the electorate and communicating that in a credible and effective way can have significant potential. I think Tom Ross' display this morning of how the public was willing to accommodate lesser punitiveness on the non-violent crimes in exchange for more punitiveness or more control for the less frequent violent crimes at a net reduction in cost, was a good illustration of a way in which that process can be moved.
With regard to the drug issues, my sense is the general public is far more ready to rethink our drug policies than are the legislative bodies because I think the legislative bodies are driven by law enforcement, which has this perverse incentive associated with asset forfeiture. My reading of the public mood is that they have come to believe that the effort we are pursuing is a failure. What we hear in the political debate is much too simplistic. I think there is a real potential for trying to bring more information and reshaping the questions from the traditional ones into ones that actually deal with some of the tradeoffs. I suspect we will see far more willingness to chance, particularly when the questions are posed in the context of "do you want more prisons or do you want more education or do you want more in the way of social services". I think that some of the extreme differences that show up in Ross' presentation were really striking and probably compelling to at least some of the legislators at the margin. We are not going to bring everybody aboard, but we can reshape some of the political debate in ways that I think could be very productive.
SMITH: As a researcher, one of the things that worries me is that I used to believe that we could get people to change their opinions. When we asked people in the neighborhoods of Brooklyn, where TNT had generated thousands of arrests, all of them good ones (its 9th & Concordia)whether or not they liked this intervention, they were unaware it had been going on because it was an undercover operation so they were uninspired. But when they heard that it had been going on, they were able to explain why it would have no effect on the market and they wanted their money back. Now they were spending somebody else's money because those neighborhoods don't have a lot of tax paying citizens. They wanted it back because they did not have an offer of something better to do about what they found was morally outrageous. Period, so we were offering that, so that's what they wanted. I think that it is much harder; you actually have to have products to offer people that are good for them. And just telling them about tradeoffs, they end up saying fine, great, I understand your point, yeah let's have some more of that.
REITZ: Michael, your comments about bringing more purpose-based analysis into sentencing made me think an innovation in the most recent set of the Pennsylvania sentencing guidelines. I don't know if you have looked at them. I like this idea quite a bit and Cynthia Kempinen and John Kramer in one of the recent Federal Sentencing Reporters wrote up something about the process of getting this kind of analysis into the new guidelines. One of the things that a new grid does, and I think many of you are familiar with this, is that it stratifies into four zones and tries to address the problem of intermediate punishments in a somewhat different way from what they have done in the past. What strikes me as innovative, each of the four zones is not only defined differently, there is a separate chapter of narrative guidance in the guidelines that attaches to those four layers so that for the most serious crimes, the high offense seriousness categories and the highest criminal history categories, the statement of purposes in the guidelines is a different statement than for offenses in different zones. For the most serious crime, judges are directed more towards retribution and punishment type ideas, perhaps incapacitation type ideas, and as you move down the grid the purposes are defined differently. The victim restitution becomes more important than possibilities for rehabilitative oriented sentencing becomes more important. The thing I like about this is that you can begin to develop more of a narrative statement of more kinds of options or decisional trees might exist in those different zones. In particular what strikes me about the Pennsylvania system is that it becomes purpose based. Judges are encouraged to think differently in policy terms about sentencing decisions in different zones. Now I don't know that Pennsylvania has done what can be done with this tool, but it strikes me as very promising as a three dimensional approach that gives some reality to the types of concerns you were talking about.
SMITH: I think that is right. It is a response to the kind of appetite for a deeper use, a richer use of our penal resources that I hear from the bench all the time. I hear from correctional agents who implement these sentences, too, but I think it is a start. The three dimensions to me are a little different. I go to Walter's room, to me I can imagine talking this way. Let's figure out how much of your life are we going to take, as Walter said. Then I want to be able over time to develop instruments to accomplish my purposes, that I don't have today and if I can't do that then I am stuck with the inadequate penal instruments we have got and their cost and the damage they do. I want to know if my object here is to incapacitate this guy, but I also want to know that if I can find a way to do that that has more productive value for a community and less cost to my wallet than the one I have now. I want to be able to use that. Now I can do that in Walter's room because I can say I will spend 8 years on this, let me figure out how to accomplish it best. In that kind of guidance, seems to me, now we are asking for creativity both on the bench and in the correctional departments. If we don't do that, then the specification of purpose is responsive at least, but if it doesn't free up the creative energy, I think it doesn't get us nearly far enough so my three dimensions have this sort of time element where we are able to start using other instruments.
KRAMER: I think one of the reasons that the Pennsylvania guidelines did that was the fact that guidelines systems are basically two dimensional, offense severity and criminal history. Most statutes attribute all sorts of purposes, incapacitation and so forth. What we really want to say in part was that how guidelines are structured, they are very simplistic whether you have 14 categories, 13 categories or whatever. As Al said earlier, you have to beware of the other form of disparity, where you begin to have narrow ranges, few categories, a lot of simplicity, a lot of presumptiveness driven by whether it is prison capacity or other things. In Pennsylvania we wanted to say we are limited by how much we can do in a guideline system. The code still says there are many different purposes on sanctioning, and in a sense the creativity that you are talking about is our primary thing in the guidelines, which is retribution. It is basically what we get to with the combination of those two factors. As we go down we try to emphasize some different notions in the sentences that went into it originally and then we said from there there other things you might want to think about are for example at level 3 you might want to begin with retribution as the primary way to you get there. Once you get there you might want to begin to emphasize the sentence in various forms and strategies, rehabilitation and other kinds of purposes. We rank those in terms of secondary or primary purposes as we as a commission saw it. In a sense we are using creativity to think about forms of implementing sentence, always with the overriding structure that we are concerned about there being fairness in sentencing and the sentencing process. Another important issue, we talked about purposes rather than thinking about how are the guidelines applied. The question should be whether or not the sentence meets the purpose intended.
BLUMSTEIN: That's why I think it is a start because it is basically an overlay on the two dimensional matrix, but it doesn't yet move into the third dimension. It shows up as narrative and an opportunity to talk about the various purposes, and where one is more salient than another. But it is entirely possible that even within a given cell which happens to be within one of the purposes, the different kinds of offenses might warrant very different kinds of purposes. When it does move into that third dimension, then it starts to enrich the multiplicity of purposes. But that gets much more complicated; it is tough to get three dimensions on a single piece of paper. As we move into a more computer-intensive environment, much of that thinking could well be stimulated when we are freed from the two dimensional restraint.
SMITH: One thought I offer you is this, I don't think from my own work with the construction and implementation of sanctions and from discussions with judges and correctional agents over the years, I don't think that offense seriousness and prior record for example are particularly useful in figuring out what the purpose is. In other words I think the bands worry me if they stay there forever. Take young armed robbers, low in the prior record usually, high in the offense seriousness scale. Now there is an awful lot that suggests to me that a very, very important purpose of sentencing young robbers is rehabilitation. Is it more important than incapacitation? No, but the incapacitation interest turns out to be relatively brief and the rehabilitation interest to be relatively long. When we have attempted to construct noncustodial penal sanctions for young robbers that have sufficient incapacitation to deal with that interest and heavy rehabilitation they are very attractive, both to the judges and to the community. So I think to myself that is interesting because when you get down to petty theft, rehabilitation is not a very important interest, right?
KRAMER: As a way of clarifying that, take a set of old parole guidelines and put them side-by- side with a set of sentencing guidelines and you will see, for example, the offense severity is in absolutely reversed order. Take Pennsylvania parole guidelines and Pennsylvania sentencing guidelines, they have different purposes and they are totally at opposites.
DICKEY: Michael wrote an interesting paper about public safety in which he analyzed what safety consists of and where it is generated and why the criminal justice system and its various elements are not directed towards public safety. They are directed towards arrests, prosecutions, and convictions which are very different. It seems to be that if you continue to have a criminal justice system in a state of flux, police more concerned about safety perhaps than they were and less concerned about arrests, prosecutions and convictions, prosecutors are not really involved in it very much. Judges I think, are concerned about the question of safety all the time but recognize that the sentencing power has become limited on the back of public safety. Given the complex nature of safety problems, you've got a system with diverse purposes. When you start to think about what safety requires and consists of and you start to ask yourself how do we achieve it, then you can start to ask yourself what role does sentencing play in achieving it and how can the sentencing power be used much more wisely that it is used today. Until there is some coherence to that and some coherence of purpose (I know that the judge always says he is doing it for safety and everybody says they are doing it for safety but they haven't looked at the quality or characteristics of safety to know how it is generated or whether what they are doing promotes safety), it seems to me that there needs to be a clearer understanding of it. The discussion about purposes or the lack therefore was very interesting. We have a tendency as human beings to do the things we know how to do, so we are always talking about purposes and once you start throwing purposes out there that are more difficult to achieve, it makes life a lot more confusing, because now you don't know how to get to where you want to get to. It is much easier to have a grid that has got two things on it, and get the scores on it and achieve proportionality and achieve a limitation on disparity. Those are the things we know how to do, trying to do some of the purposes that Michael Smith was talking about are much harder to do. I think there is a human tendency to avoid that because we don't have a clear understanding about what instruments we need in order to achieve these purposes. Until you get clarity of purpose you don't get richness of instruments, because it is the clarity of purpose that develops the kinds of richness of instruments that are likely to bring greater and more vital solutions to the problem.
SMITH: I would like to draw your attention to a New York Times article about the new federal initiative in 17 cities on juvenile guns based on the experience in Boston. There is something about this experience in Boston that was not reflected in the article. There was dramatic reduction in gun violence in Boston. Sentencing power was related to those reductions, very directly, but not by the incarceration of shooters. It was related to the reduction in violence because when the people doing the analysis realized how many of the people engaged in the gangs that had arguments and turf battles and person vendettas were on probation and parole supervision, they asked themselves the question how do we use our supervisory power, our hold on so much of a period of a person's life in order to generate safety. The answer was not the revocation of their probation and parole, it was the imposition of conditions for those who were around dangerous situations. When somebody did something that was likely to escalate to violence in that particular area, they would all descend on that area, everybody had a 4:30 p.m. curfew, they had to stay home, they hated it, much more than the other things that the formal system could do. All brought by peer pressure upon the folks who were having the argument and the violence went down. That is very interesting, that is certainly a desirable result, doesn't bear any relationship to most of our conversations about sentencing and the allocation of penal resources. I find stuff like that challenging.