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Sentencing commissions and sentencing guidelines were the preeminent institutional expressions of the sentencing reform movement that emerged in the United States in the 1970s and touched most American jurisdictions by the end of the twentieth century. This research paper focuses on the history, design, and operation of American sentencing commissions. More than half of the American states have established sentencing commissions at one time or another, although several proved short-lived. At least a few commissions are believed to have played important roles in their states in advancing such ideals as uniformity, proportionality, and cost-effectiveness in sentencing policy and practice. Commissions are able to exercise influence through at least three distinct functions: collecting and analyzing sentencing-related data, advocating for or against new policy proposals in the legislature, and developing guidelines for use by sentencing judges.
The topics of sentencing commissions and sentencing guidelines are inevitably intertwined. Indeed, the core functions of many of the leading commissions have included developing and superintending guidelines. Any history or assessment of these commissions must therefore at least touch upon questions of guidelines design. However, a detailed treatment of such questions lies beyond the scope of this research paper and is presented elsewhere.
Similarly beyond the scope of this research paper is the history and function of sentencing commissions outside the United States, which include, for instance, commissions past or present in England, Canada, and Australia.
This research paper’s primary theme is the relationship between sentencing commissions and legislatures. Although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.” A secondary theme is the relationship between commissions and judges – another relationship that has sometimes proven quite challenging for the commissions to manage effectively.
This section describes an early, influential articulation of the sentencing commission concept, presents case studies of two of the longest-functioning and most carefully studied commissions, and then more briefly surveys the history and design of commissions in other states.
Development Of The Sentencing Commission Concept
United States District Judge Marvin E. Frankel is often credited with first proposing the idea of a sentencing commission in the early 1970s. Indeed, in his most well-known work, Criminal Sentences: Law Without Order (1973), Frankel himself characterized the sentencing commission as “the most important single suggestion in this book” (119). In particular, he saw a permanent sentencing commission as a way to mitigate systemic problems with legislative oversight of sentencing policy: “[T]he subject of sentencing is not steadily exhilarating to elected officials. There are no powerful lobbies of prisoners, jailers, or, indeed, judges, to goad and reward. Thus, accounting in good part for our plight, legislative action tends to be sporadic and impassioned, responding in haste to momentary crises, lapsing then into the accustomed state of inattention” (119).
Frankel envisioned three distinct roles for his commission. First, the commission would function as a sort of sentencing think tank, both collecting and synthesizing scholarly work in the field and designing and conducting its own studies. This function reflected Frankel’s view that “the subject [of sentencing] will never be definitively ‘closed,’ that the process [of sentencing reform] is a continuous cycle of exploration and experimental change” (118–119). Second, putting its research and expertise to practical use, the commission would serve “as a kind of ‘lobby’” with regard to sentencing issues (122). Frankel seemed to think that the commission would, in particular, represent the interests of prisoners and jailers. Indeed, he made a point of emphasizing that former or present prison inmates ought to serve as members of the commission (along with social scientists, legal professionals, business people, and artists) (120). Third, and finally, the commission would itself have some power to enact rules. Frankel did not precisely delineate the commission’s jurisdiction relative to the legislature’s, but suggested that the commission “could prescribe in rules of general application the factors to be considered in individual sentences, the weight assignable to any specific factor, and details of sentencing and parole procedures” (123). Thus, it seems that Frankel contemplated that the commission would promulgate what we would now call sentencing guidelines.
Minnesota’s Sentencing Commission
It did not take long for Frankel’s idea to achieve practical realization. In 1978, the Minnesota legislature created a sentencing commission as part of a broader package of reforms that also included the abolition of discretionary parole and the authorization of sentencing guidelines.
In broad outline, Minnesota’s commission has performed each of the three roles described by Frankel. First, as to the think tank role, the commission’s enabling statute directs that it “shall serve as a clearinghouse and information center for the collection, preparation, analysis and dissemination of information on state and local sentencing practices, and shall conduct ongoing research regarding Sentencing Guidelines, use of imprisonment and alternatives to imprisonment, plea bargaining, and other matters relating to the improvement of the criminal justice system” (Minn. Stat. } 244.09(6)). In furtherance of this role, the commission has gathered a “huge inventory of sentencing and corrections information,” which is said to be “one of the most comprehensive and detailed databases ever assembled by any state” (Frase 2005a, b). Of particular importance has been the commission’s research on pre-guidelines sentencing practices, which informed the development of the guidelines; on the corrections impact of the guidelines and proposed amendments; and on changes in sentencing practices since the implementation of the guidelines (Knapp 1987).
Second, as to the lobbyist role, the commission has participated regularly and sometimes quite successfully in legislative processes since 1978. This is not to say, however, that the commission’s positions have always prevailed. For instance, a commission initiative in the 1990s to reduce the impact of plea bargaining on sentences ran into legislative resistance and proved only partially successful (Frase 2005a, b). It should also be noted that, while the commission has added an expert, well-informed voice on sentencing policy to the legislative process, it has not been quite so broadly representative a body as Frankel envisioned, at least based on its formal composition. Under the terms of its original enabling statute, the commission was to be comprised of three judges, a public defender, a prosecutor, a corrections representative, a parole board representative, and two members of the public. The commission has since been expanded to include a crime victim and a police officer. Missing, though, are social scientists, business people, artists, and (perhaps most significantly from Frankel’s perspective) former or present prisoners.
Finally, as to the lawmaking role, the commission was statutorily required to promulgate sentencing guidelines for felony cases and authorized to make later amendments as necessary, subject to legislative override. The legislature initially gave the commission wide latitude in deciding which purposes and factors to emphasize in the guidelines. Notable decisions made by the commission in developing the initial guidelines, which took effect in 1980, included decisions to adopt a “prescriptive” instead of a “descriptive” approach (i.e., to seek to selectively change, rather than merely perpetuate, existing sentencing practices); to treat prison capacity as a firm constraint on guidelines severity (which implied that increasing severity levels for one offense would require corresponding severity decreases for other offenses); and to emphasize desert and offense-based considerations as primary determinants of sentence length. (Because it also gave significant weight to criminal history, the Minnesota approach was sometimes referred to as “modified desert” (Frase 1997)).
Since 1980, although the commission has retained lawmaking authority, the legislature has periodically pared back the wide policymaking discretion originally given to the commission and asserted its own lawmaking authority in the sentencing area. Often, these legislative interventions were of the type that seemed of greatest concern to Frankel: “sporadic and impassioned, responding in haste to momentary crises.” For instance, in 1989, in response to a spike in violent crime, including a recent series of high-profile sexual assaults, the legislature adopted new mandatory minimum sentences for violent, sexual, and drug offenses, effectively overriding the commission’s more restrained response to the crime wave (Frase 2005a, b). The legislature also amended the commission’s enabling act to specify that “public safety” should be the “primary consideration” in establishing and modifying the sentencing guidelines – an implicit rebuff of the commission’s emphasis on desert and prison capacity. Similarly, in 1992, after the rape and murder of two female college students, the legislature doubled the guidelines’ presumptive sentences for sex offenses and imposed new mandatory minimums. In short, if an important objective of sentencing commissions is to preempt “sporadic and impassioned” penal legislation, the Minnesota commission has hardly been an unqualified success.
Yet, despite its periodic marginalization in the policymaking process, there are good reasons to regard the history of the Minnesota commission as a demonstration of the merit of Frankel’s original vision. Indeed, the bare fact that the commission has survived and remained institutionally relevant for 35 years – operating in a deeply politicized field that has been repeatedly buffeted by waves of public outrage and wild swings in intellectual fashion – must itself be counted a notable success. With a half-dozen professional staffers, the commission continues to produce a detailed annual statistical report for the legislature, as well as ad hoc reports on issues of particular concern. The commission also regularly adjusts the guidelines in light of new legislation and other considerations, reports on the projected fiscal and racial impact of legislative proposals, and offers training and technical assistance for guidelines users (Minnesota Sentencing Guidelines Commission 2012). Through such activities, the commission has likely contributed to uniformity, rationality, and cost-effectiveness in Minnesota’s sentencing policies and practices (Frase 2005a, b).
The commission may thus deserve some credit for Minnesota’s remarkably low incarceration rate and success in avoiding the extreme prison overcrowding that has plagued so many other American states. On the other hand, Minnesota’s incarceration rate was already quite low at the time the commission was formed, which suggests that preexisting aspects of the state’s legal or political culture may have played an even more important role than the commission in restraining penal excess during the “get-tough” era of the 1980s and 1990s. Moreover, Minnesota’s prison population has grown dramatically since 1978, even if the rate of growth has been somewhat below American norms. The commission appears to have been especially ineffective in resisting upward severity pressure in the politically charged areas of sex and drug crimes; this ineffectiveness has arguably resulted in sentences in these areas that are markedly out of step with the “just deserts” philosophy that originally animated the Minnesota guidelines (Stuart and Sykora 2011). Additionally, it should be noted that Minnesota has one of America’s highest levels of racial disparity in its prison population. While these disparities seem to result largely from a complex interaction of social disadvantage, behavioral differences, and policing strategies, the commission’s decisions on calculating and weighing criminal history in the guidelines may also play an important, if unintentional, role in exacerbating the disparities (Frase 2009).
United States Sentencing Commission
Although the Minnesota sentencing commission may claim the title as America’s oldest, the federal commission has undoubtedly been the nation’s most prominent and intensely scrutinized. Enmeshed in a political culture that seems far more polarized than Minnesota’s, the federal commission has endured repeated, vociferous attacks from the both the left and the right. Perhaps even more than the Minnesota experience, the federal experience casts considerable doubt on the capacity of sentencing commissions to cure the political pathologies that Frankel associated with penal lawmaking.
As with Minnesota, proposals for a federal commission and guidelines date to the 1970s, although enabling legislation was not enacted until 1984. Once created, the federal commission faced a statutory mandate very similar to Minnesota’s: gather and analyze data, make recommendations to Congress, and promulgate (and as necessary amend) sentencing guidelines (28 U.S.C. } 994). The federal commission was to be more robe-heavy than Minnesota’s (three of seven voting members must be judges), but the federal statute was otherwise less prescriptive as to composition, leaving the matter to the dynamics of Presidential nomination and Senate confirmation.
One might imagine that appointment by a single president would result in a cohesive initial group of commissioners. It turned out, however, that the first commissioners were deeply divided philosophically, and one of them even publicly dissented from the guidelines the commission eventually promulgated. These divisions seem to have had important consequences for the guidelines’ structure and may have contributed to perceptions that the guidelines embodied a set of unprincipled compromises (Stith and Cabranes 1998). In fairness to the first federal commission, though, it must be noted that the federal enabling statute, unlike Minnesota’s, included a long list of directives regarding the content of the guidelines, many of which seemed to point in different directions (O’Hear 2006). In any event, notable decisions made by the federal commission in developing the initial guidelines, which took effect in 1987, included decisions not to endorse an overarching purpose of sentencing (in contrast to the Minnesota commission’s embrace of desert); to employ the descriptive approach (except in the several important areas in which the enabling statute expressly favored harsher sentences); and to measure offense severity based not merely on the formal offense of conviction, but on a plethora of “real-offense” factors. The latter decision resulted in a set of guidelines marked by an extraordinary degree of complexity, which (along with their aggressive implementation of Congress’s severity enhancing directives) has been one of the chief sources of their unpopularity.
Since the guidelines’ promulgation, the federal commission’s path has paralleled that of the Minnesota commission: a strong record of data-collection and analysis has been accompanied by a more mixed record of resisting legislative interference with the integrity of the original guidelines system. With a staff of about 100, the federal commission’s basic activities are similar to those of its Minnesota counterpart (publication of reports, amendment of guidelines, technical support for guidelines users, and so forth) but on a considerably larger scale.
Many commentators have effectively documented the troubled relationship between Congress and the commission, especially Congress’s tendency to override the commission’s policy choices in areas of particular public concern (e.g., Friedman and Supler 2008; Bowman 2004). One illustration may suffice for present purposes. In 1986, in response to a public outcry over crack cocaine and without waiting to see how the commission would deal with drugs in its pending guidelines, Congress enacted new mandatory minimum sentences for drug offenders. The law was especially tough on crack offenders: it only took 5 g of crack to trigger a 5-year minimum and 50 g for a 10-year minimum. Importantly, the corresponding weight thresholds for powder cocaine were 100 times greater, resulting in a wide disparity in the treatment of powder and crack defendants who were trafficking in similar volumes. Although not expressly required to follow suit, the commission nonetheless chose to incorporate the 100:1 ratio into its drug guidelines, thus extending the disparity across the full range of covered quantities, including those below the mandatory-minimum thresholds. Subsequent analysis by the commission, however, casts doubt on earlier assumptions that the crack form of cocaine was intrinsically more dangerous than the powder form, and also identified troubling racial disparities that arose from the 100:1 ratio (crack defendants were disproportionately black, while powder defendants were disproportionately white). Accordingly, in 1995, the commission promulgated an amendment in order to equalize the guidelines’ treatment of crack and powder. Congress, however, rejected the amendment. In a series of reports over the following dozen years, the commission continued to urge Congress to soften the 100:1 ratio but to no avail. Finally, in 2007, the commission was permitted to reduce the ratio in the guidelines without congressional interference, and Congress itself then followed suit by reducing the statutory ratio to 18:1 in 2010. Although the commission eventually had some success in achieving legal change, the protracted nature of the process hardly demonstrates a high level of congressional deference to the commission’s expert judgments.
In a thorough assessment of the first 15 years of sentencing under the federal guidelines, the commission claimed credit for an increase in transparency and predictability in sentencing, as well as a decrease in inter-judge disparity (United States Sentencing Commission 2004). The commission observed that it had developed “huge” databases, representing the “richest sources of information that have ever been assembled on federal crimes, federal offenders, and sentences imposed,” and that its prison impact model had proven reliable in projecting prison bed and supervision needs. And those needs had become considerable; the commission noted a large increase in sentencing severity over the guidelines era. Not only were a larger percentage of federal defendants receiving prison terms, but those who were sent to prison were facing terms that were twice as long, on average, as they had been before the guidelines. Some of the increase in severity was due to congressional policy choices, such as the 1986 mandatory minimums for drug offenders, but the commission’s policy choices also played a role, as in the initial decision to integrate the statutory 100:1 ratio into the guidelines. Moreover, the increase in severity was borne disproportionately by black and Hispanic defendants; the gap in average sentences between white and minority defendants grew rapidly in the guidelines era. Much of the black-white disparity was attributed to the then-prevailing 100:1 ratio.
Shortly after the 15-year report, the United States Supreme Court, in its 2005 decision in United States v. Booker, transformed the federal guidelines from mandatory to advisory. (Note that this decision affected only the federal guidelines, leaving intact the mandatory or presumptive character of the sentencing guidelines in Minnesota and a number of other states.) Booker fundamentally changed the role of the federal commission, which could no longer simply dictate policy to sentencing judges; rather, if the commission wished to maintain judicial compliance with the guidelines, it had to persuade judges that its policy choices actually merited deference. The Supreme Court made this clear in its 2007 decision in Kimbrough v. United States, in which the Court held that sentencing judges were no longer bound by the guidelines’ 100:1 ratio. In so holding, the Court observed that the crack guidelines did not exemplify the commission’s exercise of its “characteristic institutional role” because the commission relied on the statutory minimums and did not take account of “empirical data and national experience.” The lesson seems to be that the commission’s efficacy as a policymaking body in the future may depend in large part on its conformity to Frankel’s vision of an independent, data-driven, expert agency.
Other State Sentencing Commissions Although the Minnesota and federal sentencing commissions have been among the longest continually functioning and most carefully studied American sentencing commissions, they have hardly been alone. More than 30 other states have had sentencing commissions at one time or another (Barkow and O’Neill 2006). In some states, such as South Carolina and Alaska, the commissions were designed as temporary bodies. In other states, such as Wisconsin and Florida, the commissions were supposed to be permanent but were later abolished. In addition to Minnesota, some of the other states with well-regarded, long-established, still-functioning sentencing commissions include Kansas, North Carolina, Pennsylvania, and Virginia.
As of this writing, the National Association of Sentencing Commissions lists 22 active state sentencing commissions on its website (including a commission in the District of Columbia), although at least two of these have much broader mandates than just sentencing and at least one has recently been legislatively abolished. It is possible that states will be encouraged to develop a new wave of sentencing commissions in coming years by the American Law Institute’s Model Penal Code: Sentencing project. The MPC: Sentencing “recommends to all American jurisdictions that they establish a permanent sentencing commission . . . as an essential agency of the criminal-justice system” (American Law 2007, 47).
As the Minnesota and federal case studies illustrate, sentencing commissions are often formed in connection with the abolition of parole and initially tasked with developing mandatory sentencing guidelines; in such jurisdictions, superintending the guidelines then typically becomes a core, ongoing function of the commission. A number of states, however, have not followed the Minnesota-federal model in all of these respects. In Florida and Michigan, for instance, the judiciary initially developed sentencing guidelines; commissions were only created later (Little Hoover Commission 2007). In some states, including Alaska and Tennessee, guidelines were maintained after the commission expired or was abolished. Also, in some commission states, such as Wisconsin and Virginia, the guidelines were advisory (as they now are in the federal system). In still other states, such as Louisiana and Massachusetts, commissions have operated without any guidelines at all (American Law 2007). Nor does having a commission necessarily imply the elimination of discretionary parole; both institutions existed for a time in Delaware, Pennsylvania, Virginia, and Wisconsin (Frase 2005b).
Although they vary widely in size, composition, and budget, state commissions typically have a larger and more diverse membership than the federal commission (Frase 2005b). The North Carolina commission, for instance, has 30 members, and the Virginia commission 17.
In states in which they were abolished, commissions failed for a variety of reasons. Often, the difficulties stemmed from either the resistance of judges to efforts to control their sentencing discretion or from the legislature’s marginalization of the commission in making sentencing policy (Little Hoover Commission 2007).
Key Issues And Controversies
Have Sentencing Commissions Succeeded In Lessening Legislative Tendencies To Excessive Harshness?
Judge Frankel proposed the sentencing commission as a response to the problem of “sporadic and impassioned” legislative action. In this era of punitive populism, such legislative action has typically been on the harsh side, contributing to an increase in the American incarceration rate from 93 per 100,000 in 1972 to 500 per 100,000 in 2010 (Bureau of Justice Statistics 1982, 2012). Many critics contend that this ballooning incarceration rate reflects policies that “are too severe, waste lives and money, and often produce unjust results” (Tonry 2004, 3).
As Frankel’s analysis suggested, a sentencing commission might bring about greater rationality and restraint in a state’s criminal-justice system in at least three ways: by producing data to help policymakers better understand the costs and benefits of different policy options, by advocating on behalf of sound policies, and by creating sentencing guidelines that embody such policies. And there is some anecdotal evidence supporting the hope that commissions do sometimes succeed in reining in legislative excess (Barkow 2012; Wright 2002). Indeed, at least one multistate study finds a statistically significant, inverse relationship between the presence of a commission and growth in corrections spending (Barkow and O’Neill 2006).
Yet, it is plain that commissions are not always successful; the Minnesota and federal case studies both provide illustrations of commission marginalization. Having a commission does not ensure either a low or a stable incarceration rate. Minnesota’s prison population was the nation’s second-fastest growing in the first decade of the twenty-first century, while the federal system was tied for sixth-fastest (Bureau of Justice Statistics 2012). Moreover, two sentencing commission states, Alabama and Louisiana, are among the top five by incarceration rate. Commission states with low incarceration rates, such as Minnesota (notwithstanding its recent growth spurt) and Massachusetts, tend to be places that had relatively low rates even before their commissions were created; it is hard to say whether and to what extent the commissions deserve credit, as opposed to preexisting aspects of the states’ political and legal culture.
It is even possible that some commissions may be counterproductive. The federal commission, for instance, is criticized for sometimes amplifying, rather than muting, ill-advised legislative policy choices, as with the 1986 drug mandatory minimums (Barkow 2012). Moreover, as Bowman argues, a complex guidelines system, like that of the federal commission, may invite, rather than discourage, legislative intervention; the federal commission, he observes, “created a mechanism that permits endless legislative tinkering in response to the crime du jour” (Bowman 2005, 250). Indeed, even a commission’s data-collection and reporting activities present risks; as Wright notes, “A system that monitors sentencing practices carefully also keeps criminal justice closer to the top of the public agenda. Growth [in the prison population] may be built into this system” (Wright 2002, 90).
In the end, we cannot know for certain which commissions, if any, have truly made a long-term difference in reining in legislative excess. We cannot replay history with and without a commission, or randomly assign states to a commission or no-commission condition. States with well-financed sentencing commissions are a self-selected lot; we should not be surprised to see that these states also tend to pay greater attention to their commissions and to display greater penal restraint than other states. Whether and to what extent commissions serve to reinforce preexisting, positive tendencies in these states – although theoretically plausible and anecdotally supported – seems beyond conclusive determination.
Why Do Legislatures Create Sentencing Commissions?
In a notable series of entries, Barkow has considered the sentencing commission, not through the lens of penal policy (as it is usually considered), but through the lens of administrative law theory. One interesting question that she has posed, along with her coauthor Barkow and O’Neill (2006), is why legislatures create sentencing commissions in the first place. Although Frankel supplied good reasons to think that a commission would be in the public interest, public-choice theories suggest that legislatures are not likely to enact laws purely on the basis of public interest. In the standard explanatory model of legislative delegation of authority to an administrative agency, the legislature does so in order to avoid making a difficult decision that will inevitably offend one powerful interest group or another; legislators can then claim credit for addressing a matter of public concern without actually risking interest-group support. Sentencing, however, does not seem to fit the model: no powerful interest group opposes longer sentences, so legislatures seem free to adopt tougher sentencing laws without fear of reprisal.
Barkow and O’Neill empirically tested a number of possible explanations for commission-creation. They found statistically significant relationships between a state’s likelihood of having a commission and such independent variables as a narrow partisan margin in the state, a high incarceration rate, and a high rate of corrections expenditures. In these findings, they see support for a cost-centered account of sentencing commissions: legislators support commissions in states in which corrections spending is sufficiently high so as to threaten other legislative priorities (such as keeping taxes low) and in which a close partisan divide makes it especially difficult for politicians to exercise restraint in sentencing policy and thereby risk appearing “soft on crime.” In such states, delegating sentencing policy to a commission may indeed help legislators to avoid making politically risky choices.
What Actors And Activities Should Sentencing Commissions Regulate?
If, like Barkow, we think about sentencing commissions in relation to conventional government regulatory agencies, we might ask what actors and activities are regulated by sentencing commissions (Barkow 2005). Based on the example of the Minnesota commission and others that have followed in its footsteps, the answer seems to be that sentencing commissions regulate judges and, particularly, the decisions that judges make about whether and for how to long to incarcerate convicted felons. However, a sentencing commission’s regulatory mission might be conceived much more broadly along both the “who” and the “what” dimensions. Indeed, if the fundamental objectives of a commission are understood to be something like achieving uniformity and proportionality in punishment or allocating criminal-justice resources in the most cost-effective fashion, then the narrowly focused approach of the Minnesota commission may be less than optimal or perhaps even counterproductive.
Consider, for instance, what may be the most perilous “third rail” for sentencing commissions: the regulation of prosecutorial plea bargaining. Plea bargaining is without question an important source of unwarranted disparities in the criminal-justice system. In jurisdictions with unregulated judicial sentencing discretion, judges could, in principle, offset some of these disparities. Depending on the overlap of statutory sentencing ranges, for example, a defendant who was able to negotiate an unusually generous reduction in charges might nonetheless ultimately receive the same sentence as other similarly situated defendants who were less fortunate in their negotiations. Sentencing guidelines, however, can impede such corrective measures, thus potentially resulting in even more prosecutor-created disparity at the same time that judicial disparity is being controlled. Indeed, the federal commission adopted “real-offense” sentencing in its guidelines precisely in order to limit the significance of prosecutors’ charging and plea-bargaining decisions. Yet, federal prosecutors have proven remarkably adept at manipulating the guidelines so as to achieve desired sentencing results (Bowman and Heise 2002), which may or may not be consistent with such ideals as uniformity, proportionality, and efficiency. Indeed, in its 15year report, the federal commission itself identified prosecutor-created disparity as an important, unresolved issue in the federal criminal-justice system. In any event, if real-offense sentencing has proven disappointing as an indirect means of regulating plea bargaining – and whatever its benefits, real-offense sentencing has undoubtedly created large complexity costs for the federal system – then more direct means might seem in order, such as the adoption of plea-bargaining guidelines. But this would put a sentencing commission at odds with a politically powerful interest group, prosecutors. Commissions have generally avoided such confrontations, and even modest commission efforts to address plea bargaining, such as the Minnesota commission’s initiative in the 1990s (Frase 2005a, b have drawn strong resistance.
A thorough examination of all of the other things that commissions might, and in a few cases actually do, regulate lies beyond the scope of this research paper. A few examples will serve to illustrate the range of possibilities. The North Carolina sentencing commission, for instance, has addressed misdemeanors and non-prison sentences in its guidelines (Wright 2002). Washington created a special commission to oversee juvenile sentencing in 1977, and then later transferred its responsibilities to the state’s adult sentencing commission (Boerner and Lieb 2001).
Hoping to better coordinate sentencing and release decisions, Chanenson (2005) has pro-posed a “Super Commission” that would promulgate both sentencing and parole release guidelines. A commission might also seek to regulate what sanctions are imposed for violations of the terms of probation or supervised release, as the federal commission does. Indeed, the federal commission has promulgated guidelines concerning a wide range of subjects that many state commissions have not tackled, including sentencing and plea-acceptance procedures, fines, restitution, and organizational sentencing.
Why don’t commissions regulate more broadly? In part, this reflects limitations on their statutory authority. However, commissions have not always taken full advantage of what authority they do have. The Minnesota commission, for instance, could have, but did not, regulate the conditions of non-prison sentences (Frase 2005a, b). Moreover, even when statutory authority is lacking, commissions could request amendments to their enabling acts. However, as suggested by the discussion of plea bargaining above, another important constraint has doubtless been a desire by commissions and legislatures alike to avoid interagency turf battles; commissions have had enough political difficulty when their regulatory targets have been limited to sentencing judges that it is understandable why they might be less than enthusiastic about tackling prosecutors, juvenile courts, parole boards, probation offices, and so forth. And, even when it comes to regulating adult sentencing judges more fully (e.g., addressing misdemeanors and nonprison sentences), commission restraint likely reflects some combination of concerns regarding judicial resistance and resource limitations. Then, too, a commission focus on prison sentences is perfectly consistent with the Barkow-O’Neill hypothesis that commissions are formed primarily to prevent corrections costs from interfering with other legislative fiscal priorities; given the high cost of imprisonment relative to community corrections, preventing overutilization of prison seems the most direct and effective way to put a lid on state corrections spending.
How Can The Integrity Of Commission Policy Choices Be Preserved From Legislative Incursions?
Although legislators may create sentencing commissions in the hope of relieving political pressures to adopt costly new sentencing laws, legislators do not seem able to keep their hands entirely off sentencing policy afterwards, even when the commission has created a comprehensive guidelines system. Legislative incursions threaten the coherence of state sentencing policy and may severely impair a commission’s ability to achieve such objectives as proportionality and uniformity in punishment and stability in the size of the state prison population. Although ongoing legislative engagement with sentencing policy seems unavoidable – and, in light of democratic values, is probably even desirable at some level – a pressing question for commission design and operation is how to minimize the likelihood that the legislature will simply ride roughshod over commission policy choices; ideally, legislative engagement should be informed by commission data and expertise and should avoid large-scale disruptions to commission-created sentencing systems in the absence of some justification stronger than public outrage over the crime du jour.
Although no state seems to have found a foolproof formula, a number of devices seem potentially helpful. First, commission membership may help to strengthen the commission’s relationship with the legislature or otherwise to enhance its political standing. Thus, the American Law (2007) recommends that sentencing commissions actually contain sitting members of the state legislature. Harkening back to Judge Frankel’s ideas about commission membership, the ALI’s model legislation also contemplates a broadly inclusive commission with representation from a range of stakeholder groups; such an approach may enhance the commission’s political legitimacy. By contrast, the relatively small and judge-heavy composition of the federal commission may be one source of its political weakness.
Second, Barkow (2012) observes that reliable cost-forecasting has played a particularly important role in raising the political standing of some state commissions with their legislatures and in helping these commissions to head off costly legislative proposals with low crime-reduction benefits. This experience underscores the need for commissions to develop strong data-collection and analysis capabilities, as well as the value of statutes requiring a fiscal impact analysis of sentencing bills as part of the regular legislative process. At the same time, Wright (2002) offers an important cautionary note: although commissions may find their greatest success by playing the role of corrections accountant, this orientation may come at the expense of promoting and contributing to public debate on some of the deeper ethical questions raised by sentencing policy.
Finally, Bowman (2005) suggests that a commission should cultivate a good relationship with judges; they are, he observes, “natural allies” in checking legislative excess in the sentencing area. He notes that some of the political weakness of the federal commission may be attributed to the adversarial relationship that developed between the commission and the judiciary in the first few years of the guidelines era. This poor relationship may seem counterintuitive, given the prevalence of judges among the commission’s members. However, the judge-members were not selected by the judicial branch itself and were not necessarily reflective of mainstream judicial perspectives; the original commissioners, for instance, were tilted toward the appellate courts and had little actual sentencing experience (Stith and Cabranes 1998). By contrast, for instance, one version of the ALI proposal provides for selection of judge-members by the chief justice of the state supreme court and requires that three of five judge-members be trial-court judges (American Law Institute 2007). In any event, whether strengthened or weakened by the federal commission’s membership, many judges quickly developed various negative impressions of the commission: that it was overly concerned with controlling sentencing judges and not sufficiently concerned with achieving just outcomes, that its guidelines were too harsh and too rigid, and that it was oblivious to courtroom realities and disinterested in feedback from the judges “in the trenches.” This federal experience suggests that a commission wishing to maintain a good relationship with its “natural allies” should try to preserve a substantial measure of flexibility and discretion in the sentencing system, engage in regular dialogue with the trial bench, and demonstrate a willingness to modify guidelines based on judicial feedback.
How Can Sentencing Commissions Remain Relevant In An Advisory Guidelines System?
With Minnesota establishing the model, many commission jurisdictions gave their commissions the authority to promulgate and/or amend sentencing guidelines that had some level of legally binding force. In such jurisdictions, the commission has an obvious and important policymaking role (assuming the legislature does not routinely override commission policy choices). However, some commission jurisdictions chose to adopt advisory, instead of mandatory guidelines, which raises the question of whether a commission can be relevant when judges are free to ignore the commission’s guidance. This question has taken on greater urgency in the wake of United States v. Booker (2005), which shifted the federal guidelines from mandatory to advisory, and a related line of constitutional decisions that led at least four other states to make the same transition (Pfaff 2009).
Of course, regardless of its policymaking authority, a commission may have an impact through the other two roles envisioned by Frankel, those of think-tank and lobbyist. But there are good reasons to think that a commission may also affect sentencing practices through advisory guidelines. One statistical study, for instance, found that the adoption of advisory guidelines in some states led to reduced variation in the length of sentences; although the effects were not as strong as those associated with the adoption of binding guidelines, they were nonetheless substantial (Pfaff 2006). Likewise, the Booker decision did not immediately render the federal guidelines irrelevant; since the Supreme Court’s decision, most federal sentences have continued to be imposed within the guidelines range. Even when they are not required to follow it, some judges apparently (and understandably) appreciate and rely on expert guidance in discharging what many regard to be the most challenging responsibility in the judicial portfolio.
This is not to say, however, that advisory guidelines will inevitably succeed. Wisconsin and Louisiana, for instance, both tried and abandoned experiments with advisory guidelines (Pfaff 2009). Moreover, since Booker, there have been persistent calls for Congress to reinstitute mandatory federal guidelines, prompted in part by steadily declining rates of within-guidelines sentences.
Procedural rules may enhance the relevance of advisory guidelines (and by extension of the commissions that superintend them). Following Booker, for instance, the Supreme Court made clear that guidelines ranges (though advisory) must still be calculated in each case; that determining the guidelines range should be the first step in the sentencing analysis; and that sentences within the range may be treated as presumptively reasonable on appeal. When the sentencing judge invests considerable effort in determining a guidelines range, it seems likely that the range will tend to condition the sentence imposed, even if the range is not regarded as controlling – all the more so if the range constitutes a safe harbor of sorts from the threat of appellate reversal.
Apart from such procedural rules, the commission in an advisory system may enhance the impact of its guidelines to the extent that they are persuasively grounded in sound cost-benefit research and reflect an appreciation of judicial perspectives. The commission might think of its “lobbyist” role as not merely limited to legislative policymaking decisions, but also extending to judicial sentencing decisions. This way of framing the commission’s role in an advisory system underscores the importance of the commission’s standing with the judiciary and the strength of the justifications it offers in support of its guidelines. In this spirit, a number of the suggestions made in the previous section regarding commission design and operation (e.g., strong representation by trial judges on the commission) may also be pertinent to the goal of maximizing compliance with advisory guidelines.
This concluding section briefly describes three important challenges that some commissions are beginning to face, and that may fundamentally alter the role of sentencing commissions in the coming years.
First, although many sentencing reformers hoped that sentencing commissions and guidelines would lessen the effects of racial discrimination in the criminal-justice system, wide racial disparities in incarceration have persisted or even grown worse in some commission jurisdictions, including Minnesota and the federal system. It does not seem that commissions have engaged in purposeful discrimination, but they have sometimes made policy choices with important racially disparate effects, such as the federal commission’s original approach to crack sentencing and the Minnesota commission’s treatment of criminal history. In any event, whatever the source of disparities, they seem to present an increasingly urgent threat to the legitimacy of the criminal-justice system. Commissions that concern themselves broadly with the system’s fairness and effectiveness ought to pay heed. Indeed, in a few states, the legislature has prodded the commission to do so, for instance, by requiring the commission to prepare racial impact reports on sentencing bills along with a fiscal analysis (Barkow 2012). In addition to such participation in the legislative process, commissions that superintend guidelines might also do well to undertake a systematic examination of the racial impact of their own policy choices and to consider amendments so as to minimize unjustified disparities. The federal commission was a pioneer of sorts; its persistent efforts to address the 100:1 ratio were largely motivated by concerns regarding racial impact.
Second, commissions have traditionally communicated information to sentencing judges in a general way and at periodic intervals, in the form of reports, manuals, guidelines, training seminars, and so forth. In recent years, though, there has been growing interest in systems that would provide judges with real-time data at the bench or in chambers to assist with individual sentencing decisions as they arise. Such a “sentencing information system” would allow a judge to enter certain basic data about an offense and an offender, and then receive information about sentences and/or outcomes in similar cases (Miller and Wright 2005). This might include, for instance, a precisely calculated recidivism risk for an offender, or information about what probation conditions have been imposed on similar offenders in other cases. In jurisdictions in which a sentencing commission is already collecting a great deal of case-level data, the commission seems the natural agency to develop a SIS. However, putting a database created for one purpose –informing policy-level decisions by the commission and the legislature – to new uses by new users presents significant technical challenges at a minimum. The challenges would be even greater if, as some hope, different jurisdictions linked their systems and pooled their data. But the challenges may not be merely technical. For instance, one category of information that sentencing judges might like to have is cost data: what is the estimated expense to taxpayers of various sentencing options? The Missouri sentencing commission has, in fact, already attempted to make such information available (Flanders 2012). However, some critics object that cost data should not be shared with judges; this may invite a cold-blooded, cost-benefit decision that loses sight of the needs of victims or the demands of justice. Another challenge is presented by the calculation of recidivism risk. Assuming that risk forecasts may be made more accurate when data like race, sex, ethnicity, family relationships, education, income, mental health, and so forth are taken into account, difficult questions arise concerning the fairness and legality of basing sentencing decisions, even indirectly, on personal characteristics over which a defendant has little or no control, particularly when there is a history of invidious discrimination associated with those characteristics.
Finally, there is the challenge of effecting fundamental reform to an established guidelines system. Minnesota introduced the basic, widely imitated template for sentencing guidelines with the development of its two-dimensional grid more than 30 years ago. Sentencing knowledge has progressed considerably in the interim, and both public and expert beliefs seem to have shifted on a number of fundamental questions, such as the feasibility of achieving, and the desirability of attempting, offender rehabilitation in the criminal-justice system. Although commissions routinely amend their guidelines, these amendments are usually narrowly focused and rarely involve anything like a fundamental reworking of the guidelines architecture. Once a system is in place, the normal pattern seems to be that the commission becomes invested in the system’s basic approach and shows little interest in reopening discussion on the big questions that had to be answered at the outset in creating the guidelines. This is all perfectly understandable, but it may become increasingly problematic as the basic models of the 1970s and 1980s fall further behind current knowledge and values. Attempts to address racial disparities and to develop sentencing information systems may exacerbate the perceived obsolescence of traditional approaches. Shifts from mandatory to advisory, and vice versa, may also necessitate structural changes in order to maximize guidelines effectiveness. Yet, fundamental change requires institutional will, political capital, and other resources that may be in short supply on many commissions. In some guidelines jurisdictions, the current systems emerged from multiyear deliberative processes and painstakingly crafted compromises among antagonistic stakeholder groups. It is hard to imagine a successful replication of such efforts. Yet, it is almost as hard to imagine that sentencing commissions and guidelines will remain viable institutions for another 30 years if they do not prove capable of periodic fundamental reform.
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