“There is a better way. We need to move from anger-based sentencing that ignores cost and effectiveness to evidence-based sentencing that focuses on results—sentencing that assesses each offender’s risk and then fits that offender with the cheapest and most effective rehabilitation that he or she needs.”
—Hon. Ray Price, Missouri Chief Justice, in his State of the Judiciary speech, 2010
“Sentencing has been a ceremony of punishment for a very long time. We wear robes and conduct what is in large part a morality play—maintaining a secular equivalent of a state church. … If our job is to deliver an appropriate sermon, we need only work on our delivery and steer towards severity.”
—Hon. Michael Marcus, Multnomah County District Court Judge, Portland, Oregon, 2003
THE WAVE OF SENTENCING REFORM in the United States that began around 1980 transformed the sentencing process in the federal system and all fifty states. Sentencing changed from a focus on offenses and individuals, from weighing aggravating and mitigating circumstances and sometimes criminogenic deficits, from tailoring sentences to particular goals that the court deemed appropriate under the circumstances, to a system in which mitigation is discouraged or prevented, in which the intent is to sentence the harm of the instant offense and the harm of prior bad deeds, and in which the focus is on the primary goals of deterrence and incapacitation. Sentencing reform had two things in mind: punishment and control.
By way of example, an August 10, 2013, opinion piece by Nicholas Kristof in the New York Times relayed the story of how Edward Young had been sentenced to fifteen years in federal prison (for which there is no parole) for ostensibly helping a neighbor. Young had been convicted of several burglaries in the past, was incarcerated and then released in 1996. He turned his life around, married, worked six days a week, and raised four children. The problem began when his neighbor’s husband died and she asked Young to help her clear things out of her house for a garage sale (apparently her husband was a hoarder). Among the items were seven shotgun shells, which Young took home for safekeeping. For some reason, the local police suspected Young of burglaries again and searched his home. They found the shotgun shells Young had hidden to keep away from his children. The U.S. Attorney charged Young under a federal statute forbidding convicted felons from possession of guns or ammunition. That charge has a mandatory fifteen-year sentence. Because the U.S. Attorney chose to charge Young that way, the court had no choice in the sentence. When the U.S. Attorney was asked why he charged Young, he stated, “The case raised serious public safety concerns.” Young had never possessed a weapon, the neighbor explained everything to the court, and the local authorities dropped their burglary suspicions that initiated the search. Young’s wife proclaimed, “I can’t believe my kids lose their daddy for the next 15 years. He never tried to get a firearm in the 16 years I was with him. It’s crazy. He’s getting a longer sentence than people who’ve killed or raped.”
Kristof proceeds to use this example to represent what he says is wrong with the U.S. justice system—what he calls the irresponsibility of mass incarceration, and the problems with mandatory sentences. He concludes: “Some day, Americans will look back and wonder how we as a society could be much more willing to invest in prisons than in schools. They will be astonished that we sent a man to federal prison for 15 years for trying to help a widow.”
Determinate sentencing, mandatory sentencing, and truth in sentencing are all antithetical to rehabilitation of individuals. As the dust has settled, and the scientific community has completed volumes and volumes of evaluations and assessments, it is difficult to believe that the positive impacts of these sentencing reforms are on a scale most would consider productive or effective. Crime is down, but mainly for reasons having little to do with crime control, sentencing reform, and the corrections explosion. Recidivism is still unacceptably high, having very much to do with crime control, sentencing reform, and the corrections explosion.
In 2014, and for the past several years, states have faced fiscal situations that have motivated their implementing reductions in criminal justice budgets. One impact of that search for cost savings has been on sentencing and release.
There are increasing examples of legislative changes to sentencing and release laws that, while largely piecemeal, when taken together reflect a modest retreat from some of the crime control initiatives put in place over the past thirty to forty years. These changes are in the right direction, if often for the wrong reasons (cost savings, rather than a more effective approach). I will briefly summarize where state statutes and legislative policy have been heading over the past ten years, and indicate that much more extensive statutory change is required to get the U.S. justice system to a place of significantly enhanced effectiveness and cost-effectiveness.
The Sentencing Project and the Vera Institute of Justice have compiled summaries of legislative changes at the state level regarding criminal codes, alternatives to incarceration, time served, and mandatory sentences, among other justice-related changes. The general trends that are reflected in legislative changes in some states over the period from 2001 to 2010 include the following: changes to criminal codes that in some cases reduced offense severity and sentence length; increases in alternatives to incarceration with a focus on drug treatment; and reduction in prison terms by changes to mandatory sentences and time served.
Recent examples are in order (King 2009; Porter 2010, 2011), and some are more notable and substantive than others. First, New York State scaled back the Rockefeller drug laws, perhaps the most punitive in the nation, by eliminating some mandatory minimums for first and second offenses. South Carolina, New Jersey, Colorado, Louisiana, Maine, Minnesota, Nevada, Arkansas, Hawaii, Massachusetts, and Rhode Island revised drug laws, generally by modifying/scaling back mandatory minimums and deprioritizing marijuana law enforcement. Other states reduced time served by altering laws governing release from prison. These states include Kentucky, Mississippi, Louisiana, Indiana, Kansas, New Hampshire, and Texas. Recently, the federal government, with the leadership of Attorney General Holder, has begun the process of implementing sentencing changes at the federal level under General Holder’s Smart on Crime initiative.
However, some caveats are important to note. First, changes to sentencing and release have been limited to particular states. These changes have not been national in scale by any means. Second, while several states are revising some sentencing and release laws to help stabilize the states’ prison populations, there has been a 22 percent increase in life without parole sentences between 2003 and 2008, due in large measure to an increased hesitancy to impose the death penalty. Third, many of the sentence reductions to the criminal code are limited to lower-level offenses. Finally, while some states are implementing modest sentencing and parole measures to reduce prison populations, several states are modifying/rolling back these provisions, failing to adequately fund collateral programs, and facing political pushback. For example, Washington, Delaware, and Kansas have reduced spending on prisoner reentry programming to help address short-term budget problems; Illinois, Wisconsin, and New Jersey rolled back early release programs that allowed well-behaved inmates early parole; Arkansas passed legislation reducing the punishment for selected nonviolent and drug offenders, earlier release for some inmates, and reduced sanctions for parole violators. These changes were not embraced by all. As one legislator said about the reduction in punishment for certain drug offenders, “We have a very, very low tolerance for drug offenses of any type”; and a sheriff asked, “Where is the deterrent?” (Arkansasnews.com, August 15, 2011)
Clearly, some limited change is underway. Prison population growth slowed in the late 2000s and has declined modestly in the past three years, due to some states shuttering prison units. However, the United States still has the world’s largest prison population and the world’s highest incarceration rate and projections indicate state prison populations will increase by an average of 3 percent over the next three years. Moreover, while there have been some modest changes to state sentencing and release statutes and policies in the past few years, the characterizations of state sentencing laws provided earlier are accurate. The sentencing reform that occurred in the United States during the 1980s and 1990s that served as a primary mechanism for accomplishing crime control is alive and well.
Partially because of the sustained crime decline beginning in the early 1990s, partially because of the fiscal need to reduce prison costs, and partially because other issues and concerns have taken priority, the rhetoric of tough on crime has died down and the language of justice policy today involves more and more phrases and terms like “smart policy,” “smart practices,” and “evidence-based practices.” This focus on “smart” is probably in part a reflection of the volumes of scientific evidence that have accumulated in recent years regarding the effectiveness of alternatives to crime control. However, despite the availability of effective alternatives to the nearly singular policy of harsher and harsher punishment, the term “smart” is still primarily rhetorical, and the reform of sentencing and release is still uphill. There are several reasons for this challenging assessment. One is the widespread belief that the crime decline of the 1990s was a result of tough on crime policies. It is understandable that many policymakers and elected officials abide by the mantra “if it ain’t broke, don’t fix it.” Another concerns the political realities of tough on crime, even in light of a sustained decline in crime and much discussion about criminal justice reform. Traditional political values still play a very significant role and the risk of being perceived or labeled as soft on crime is to be avoided. As I discussed earlier, fear has played a substantial role in fashioning criminal justice policy, and while official crime statistics indicate that we are “safer,” other risks, such as threats of terrorist attacks, help keep the fear level elevated. The bombing at the Boston Marathon in April of 2013, the Sandy Hook Elementary School shooting, the Aurora Colorado movie theater killings, and many, many others, in combination with the obsessive coverage of such events on the cable news channels, keep fear and concern at heightened levels. There has been much “tough” rhetoric associated with terrorism. Perhaps public fear about threats to safety, whether associated with predatory crime or with terrorist attacks, keeps crime control in a preferable position in the political arena.
Some suggest that U.S. criminal justice policy is path dependent, or inertia driven, meaning that the policies in place are difficult to change due to their own momentum (Fernandez 2011; Sharp 1999). By way of example, Mark Mauer, the executive director of the Sentencing Project, points to the impact of U.S. v. Booker on federal sentencing outcomes. Booker rendered the federal sentencing guidelines “advisory,” rather than mandatory, after a Sixth Amendment challenge pertaining to the relevant conduct provision of the guidelines. Relevant conduct allows sentencing for criminal conduct for which a defendant need not be indicted nor convicted. One might expect significant departures from the guidelines by judges in sentencing offenders, especially downward departures because many judges have and still do perceive the guideline sentences as too severe in many cases. Data from the United States Sentencing Commission (2013) indicate that nongovernmental sponsored downward departures (meaning downward departures initiated by the court) increased after Booker, but only modestly. Judicial downward departures increased in 2006 to 12 percent, in 2011 to 15 percent, and in 2013 to roughly 18 percent. Despite the opportunity to implement sentencing changes, judges tend to stay close to that with which they are familiar—an inertia of sorts.
There are also institutional barriers to reform. For example, in May of 2011, Texas closed a prison unit for the first time. The vast majority of the 112 units in the Texas prison system, as is the case in many states, are located in rural areas of the state, in or near small towns that depend heavily on the revenue that prisons bring to those communities. Rightly or wrongly, correctional units are perceived as economic engines in local communities, and therefore closing units can have significant economic, and perhaps even more importantly, political consequences. Recall the closing of U.S. domestic military bases in the 1990s and the contention in Congress created by the process. It is political, and there is reason to expect that the closing of prison units will involve similar concerns and issues.
SENTENCING REFORM PART II
Sentencing in the United States today consists of a fragmented array of fifty-two different sets of laws, procedures, and regulations. The states and the federal system are a mix of structured, determinate, indeterminate, presumptive, or mandatory guidelines, advisory or voluntary guidelines, mandatory statutes, habitual offender statutes, and mandatory minimum statutes, among others. The states and the federal system also differ in terms of parole release laws and policies. Some states and the federal government abolished parole and others heavily restricted the numbers released early. Truth in sentencing laws, designed to maximize time served, are less prevalent today, but are still in effect in many jurisdictions. In 2014, sentencing in the United States can range from broad minimum and maximum sentences and early release after serving a relatively small fraction of the sentence, to prescribed, fixed, or mandated sentences and no early release. In some jurisdictions, for example Texas, judges still have the lion’s share of the discretion in determining the sentence; however, Texas law also includes a wide array of mandatory sentences for everything from murder to burglary and robbery, to repeat offender three strikes laws. In others, for example the federal system, judges have a considerably more limited role under the federal guidelines, and this appears to be the case even post-Booker.
The fragmentation of sentencing and release laws, policies, and regulations serves to underscore the clear lack of common understanding, let alone consensus, regarding what we as a nation are trying to accomplish with sentencing, and what principles or theories about sentencing guide policy. At the same time, the one theme that has and does characterize sentencing in the United States is enhanced severity of punishment.
The evolution of punitive sentencing is in part a consequence of the shift in the enhancement of sentencing responsibility to the legislative branches of state and federal government (a consequence of sentencing reform). As such, legislators and sentencing commissioners think about offenders, crime, and punishment in the abstract and ex ante; they are removed from considering individual culpability, the individual offender, and any particular circumstances that may play a role in criminality. In deliberating crime and punishment in the state house rather than the courtroom, it is perhaps easier for legislators to think of criminal offenders as categories (first-degree felons, aggravated sexual assaulters, burglars), rather than as individuals. This perhaps also facilitates the near-demonization of some types of offenders (sex offenders, drug offenders). Ultimately, as offenders are thought of as offenses (rather than as offenders), a culture of punishment is facilitated and perpetuated. Whether the sentence is determined by legislative fiat or by a judge, it is puzzling how those legislators and judges know how much punishment is enough to deter offenders.
At the end of the day, sentencing reform has produced changes to statutes, values, and culture. As I discussed earlier, these changes also impacted public opinion about crime and punishment.
The U.S. justice system consists of many moving parts and three primary sets of agencies and individuals. Law enforcement governs the front door, determining who gets in. Prosecutors review cases and determine whether or not they should be carried forward to indictment and prosecution. When the time comes, the cases are adjudicated typically by a negotiated plea (5 to 10 percent of cases are adjudicated by trial). After the sentencing hearing, the convicted offender is transferred to corrections. Each stage of processing a felony defendant involves judgment and discretion. Decisions are routinely made regarding what to investigate, whether and who to arrest, what to charge, whether to indict and with what evidence, how to plea a case out, what sentence to recommend, what sentence to impose, and ultimately how and under what conditions to carry out that sentence. All of these decision gates are important. If law enforcement does not decide to arrest, the individual will not end up in the system. The same goes for the decision to prosecute. But when we view the big picture regarding the longer-term viability of the justice system, the ability of the justice system to accomplish the primary goals of enhanced public safety and limited recidivism, the decision regarding the sentence looms large in terms of the business of criminal justice.
Does effective policing enhance public safety? Does arresting individuals promote the peace? In some respects, yes, arresting an individual can remove that crime from the street. At least momentarily. However, the extent to which this individual and the hundreds of thousands like him or her simply cycle in and out of the justice system, on and off of law enforcement’s radar, begs the question: Are we really accomplishing longer-term public safety, or are we playing an expensive game of cat and mouse? The same goes for indictment, prosecution, and conviction. Criminal indictments, prosecutions, and convictions all aim to promote public safety. Once again, if the offenders we indict, prosecute, and convict today simply cycle back in the courts in six weeks, three months, or a year or two, are we really accomplishing public safety?
The sentencing decision is critical to the effectiveness of the justice system. Sentencing determines how we attempt to correct offenders, which in turn determines the overall success (recidivism reduction) of the justice system. In some cases these are guideline sentences in which judges play a minor role and prosecutors wield the greater influence. Sometimes these are unstructured, indeterminate sentences in which the court exercises wider discretion. Regardless of the statutes or the realities of sentencing in a particular jurisdiction, the question is the same: On balance, are the sentences that are handed down productive of public safety or are they just as likely or more likely to be oil for the revolving door of U.S. justice? Certainly, having a convicted offender under correctional control or supervision potentially contributes to the short-term enhancement of public safety (depending on how much of an incapacitation effect is assumed). However, if in the long term “corrected” offenders leave criminogenically no better or, as growing evidence indicates, worse than when they went in, public safety will be compromised. Add to that our current inability to effectively enhance the odds of successfully reintegrating offenders into the free world upon release from incarceration, and we appreciate again the persistently high recidivism rates that characterize the U.S. corrections systems.
Sentencing is sorting offenders into one of a limited number of bins: incarceration, diversion, probation; high risk, medium risk, low risk; highly antisocial bad person, run of the mill offender, one-off, potentially can be rehabilitated. How well offenders are sorted depends on a number of factors, including who does the sorting, how much and what kind of information is available at sentencing, the purposes of the sorting process, and finally how many options (bins) are available to the court for sentencing. Two things among many that are a consequence of sentencing reform are that the judge generally has less of a decision-making role, and the number of bins into which the court is permitted to sort offenders has been remarkably reduced.
Traditionally and currently, sorting has been assisted by presentence investigation (PSI) reports, which summarize for the court details such as the characteristics of the instant offense, prior criminal involvement, victim impact, social/family history, work and employment history, substance use, among others. The PSI also typically contains a sentencing recommendation. The relevance of this information largely depends on the statutes that govern sentencing. In some jurisdictions that still have indeterminate sentencing, offering wide sentencing ranges and the considerable influence of aggravating and mitigating circumstances, PSIs can be important. In determinate sentencing and guideline jurisdictions, the PSI’s relevance is often in terms of providing the appropriate data and calculations for a structured or guideline sentence or evidence in support of a mandatory sentence.
Much of the focus of sentencing reform of the past forty years has been on controlling judicial discretion. What the story about Edward Young illustrates is the discretion exercised by prosecutors and the profound impact that discretion has on sentencing outcomes. Key decisions made by prosecutors are fundamentally linked to sentences—decisions such as what charges to bring against a defendant, what evidence and what charges to bring before a grand jury for indictment, what to negotiate in a plea agreement, and what sentence to attach to a plea agreement. The sentence is then essentially determined by the conviction offense, prior criminal involvement, and some, often limited, aggravating and mitigating circumstances.
So what do we know about how and what judges think about sentencing, punishment, deterrence, incapacitation, rehabilitation, crime, and public safety? The answer is that we know a limited amount. Most of the research on judicial opinions about sentencing has been conducted by the United States Sentencing Commission and consists of surveys of federal judges. The most recent Sentencing Commission survey of federal judges (United States Sentencing Commission 2010) indicates a widespread belief that mandatory minimum sentences are too harsh, that the guideline sentences for many drug and pornography offenses are too harsh, and that many factors determined in the guidelines to be “not ordinarily relevant” for sentencing are considered relevant by the clear majority of judges surveyed. Federal judges believe that the current federal guidelines have reduced unwarranted sentencing disparities and increased fairness. Unfortunately, judges were not asked whether they believed that the guideline sentences reduce recidivism or are achieving public safety.
The limited survey data on the opinions of state judges (for example, Alexander and Carroll 2006; Warren 2009b) do indicate a number of interesting concerns and priorities. The National Council on State Courts’ (NCSC) 2006 multistate survey of chief justices’ opinions regarding sentencing reform found three conclusions. Sentencing should: aim to promote public safety and reduce recidivism through the enhanced use of offender risk and needs assessments and evidence-based practices; reduce overreliance on incarceration as punishment for those offenders who do not pose a substantial danger to the community or have not committed the most serious offenses; and promote alternatives to incarceration such as community-based alternatives.
Warren (2009b: 277) reports that the NCSC survey results also indicate the following:
The ineffectiveness of probation and current sentencing practices and resulting high rates of offender recidivism, the overuse of incarceration and the lack of effective sentencing alternatives were also among the most frequently cited subjects of complaint from state trial judges hearing felony cases.
Judges also expressed concern about the relative lack of judicial discretion in sentencing, the belief that prosecutors exercised too much discretion, and that prosecutors overcharge defendants too frequently. Additional survey research (Alexander and Carroll 2006; Elikann 1996) reveals judges’ overwhelming objections to mandatory minimum sentences, mandatory sentences in general, and the loss of judicial discretion as a consequence of changes to sentencing statutes over the past few decades.
As a whole, judges appear to share some serious concerns about the state of sentencing in the United States. While judges offer opinions about such matters when asked to do so in a survey format, they do not routinely become involved in policy debates or policy recommendations. As Warren (2009b) indicates, the judicial role is not making law and policy, but interpreting and applying law and policy. While the perspective from the bench is to be highly valued, it is not often that knowledgeable judges are found who risk the foray into justice policy and speak loudly about their concerns.
There are several judges who have been particularly outspoken about crime, punishment, sentencing, recidivism, and public safety. Much of the sentiment is represented well by Hon. Roger Warren, President Emeritus, National Center for State Courts, and Hon. Michael Marcus, Circuit Court Judge, Multnomah County, Portland, Oregon. Marcus and Warren have not only written extensively on what is wrong with sentencing today, but they have also offered some suggestions for moving forward. Here are the cases they make.
Judge Marcus is quite critical and quite vocal about the failures of contemporary sentencing and corrections in the United States. Marcus’s primary concern is the inability of current policy, law, and practices to reduce crime and recidivism. In his own words (Marcus 2004: 19):
It didn’t take long for me to realize after taking the bench in 1990 that the first offender is a rare occurrence in our system. It became immediately obvious that most of those we sentence have been sentenced before, and that most would probably offend and be sentenced again—often having produced another victimization. The notion that we were actually managing criminal careers occurred to me early in my own career as a judge. That notion was soon followed by the suspicion and then the conviction that we could surely do a better job of diverting offenders from criminal careers if we made some substantial effort to do so—by employing data, evidence, and anything better than our various philosophies, assumptions, and untested beliefs about how people work … there is no question that recidivism rates are abysmal. There are many measures, but they surely represent the impact of sentencing that is not responsibly aimed at crime reduction.
Judge Marcus (2003) notes that that there is built-in inertia to perpetuate the sentencing patterns of the recent past. He views sentencing behaviors of judges as a consequence of the “archaic adherence to the myth of deterrence, the ritual of retribution and the façade of rehabilitation” (2003: 78). He indicates that the safe place for judges, who are elected officials in most jurisdictions, is to tend toward severity. Further, because judges are not assessed on their ability to reduce crime and recidivism, their sentencing practices have been primarily judged in terms of their harshness. The public presumably believes either that tough sentences lead to recidivism reduction, or tough sentences just feel morally right. The public does not necessarily need evidence regarding whether it enhances public safety in order to believe it does.
Judge Warren (2009a: 1) echoes the concerns of Judge Marcus, focusing on the recidivism rate as evidence of a failure of sentencing and corrections, including the failure of probation:
Recidivism rates among these felony defendants are at unprecedented levels. Almost 60 percent have been previously convicted and more than 40 percent of those on probation fail to complete probation successfully. The high recidivism rate among felony probation pushes up state crime rates and is one of the principal contributors to our extraordinarily high incarceration rates.
RECONSIDERING THE SENTENCING PROCESS
“Our persistence in ignoring research when exercising sentencing discretion exceeds even offenders’ persistence in crime.”
—Hon. Michael Marcus, Multnomah County District Court Judge, Portland, Oregon, 2003
The Role of the Court
Judges’ experience in the day-to-day practice of sentencing has highlighted a number of significant concerns. That perspective from the trenches, when coupled with the consensus emerging from scientific research and evaluation, points to clear remedies. So what appears to be the evidence-based path forward for sentencing? I first focus on changes to the sentencing process in the courtroom, then turn to sentencing structures and statutes.
Based on the scientific literature on evidence-based sentencing and, in part, on recommendations made by judges Warren, Marcus, and their colleagues, the following appear to be productive strategic changes to the sentencing process:
1. Establish crime and recidivism reduction as an explicit goal of sentencing, and utilize evidence-based strategies for accomplishing that goal
2. Introduce and utilize problem-solving concepts in the sentencing process based on collaborative decision making
3. Utilization of accurate, comprehensive, valid, newest-generation risk and needs assessment instruments to gauge the assessed risk and identify criminogenic needs
4. Substantial revision of the presentence investigation report
5. Utilize technology to assist in data informed sentencing
ESTABLISH CRIME AND RECIDIVISM REDUCTION AS AN EXPLICIT GOAL OF SENTENCING
Judge Marcus does not mince words on this matter (2009: 751):
[T]he single most daunting impediment to meaningful sentencing improvement: our wholesale surrender to undifferentiated just deserts as mainstream sentencing’s only responsibility. That surrender is a demonstrably dysfunctional, cruel, and wasteful allocation of the bulk of corrections resources—jail and prison included. Our use of jail and prison under the resulting paradigm frequently does more harm than good. The harm consists of accelerated recidivism by offenders whose criminality would be better addressed with wiser sentencing choices, by victimizations that smarter sentencing would have avoided, the excessive punishments that serve neither society nor the offender, of an enormous waste of public resources, and a continuing erosion of public trust and confidence.
It does not take much effort to realize that public safety, crime, and recidivism reduction are not realistic goals of current sentencing, once the results of sentencing reform over the past thirty-plus years are understood. Whether we consider explicit sentencing guidelines like those found in the federal system, determinate sentencing, mandatory sentences and mandatory minimums, truth in sentencing laws, and reductions in parole release—the outcomes of sentencing reform—the message is clear. Sentencing in this era is harm based and a harm-based system is a just deserts-based system. Once we acknowledge that punishment does not deter, it becomes evident that one of the problems we face going forward is the sentencing process itself.
Accomplishing this goal of making crime reduction an explicit priority in sentencing requires statutory changes, changes to correctional resources, and attitudinal and cultural changes, among others. I will address the statutory and correctional resource issues later. How do we change beliefs, attitudes, and the culture of the courtroom and the sentencing process? It sounds trite, but in the case of judicial beliefs and attitudes, it is probably, in part, a matter of education—consistently and routinely providing scientific evidence to the judiciary regarding what works in reducing recidivism and crime. It will also require that judges forego the concern with political risk of not following the traditional tough on crime mantra.
Judges are probably in a unique position of serving as community opinion leaders, individuals who, due to their position, presumed impartiality, experience, and expertise in the law, can function to facilitate changes in public attitudes as well as the attitudes of those in the justice system who play a role in sentencing, in particular prosecutors. The data are not terribly conclusive on the extent to which prosecutorial discretion is largely responsible for the enhancement of punishment in jurisdictions in which judicial discretion has been significantly curbed. Regardless, whether statutory changes have shifted sentencing discretion from judges to prosecutors, it is reasonable to presume that as an advocate for the state in the litigation of a criminal matter, it is often the prosecutor’s goal to aggravate a sentence. Whether through a sentence recommendation for enhanced punishment, through charging decisions or plea negotiation decisions, or through factual findings relevant to sentencing enhancements or mandatory sentences, there are a number of ways in which prosecutorial decisions impact sentencing. To the extent that prosecutors believe that deterrence works and that incapacitation is a very effective crime-fighting tool, it will be difficult to place crime reduction as a viable sentencing priority.
Part of the bigger picture here is the use of evidence-based practices in sentencing criminal defendants. Part of that model is to provide decision makers—prosecutors, defense bar, and judges—with the scientific evidence regarding what does and what does not reduce crime and recidivism. It also requires making key changes to sentencing statutes and criminal procedure. However, it is not as simple as providing information to prosecutors, judges, and defense lawyers, and changing law and procedure. Instead, all three, the government, the court, and the defense bar, need to be on board with the goals and objectives. This requires consensus and cooperation, as all the players remain focused on implementing sentences that have proven to be effective at reducing recidivism. Accomplishing this will require a cultural shift in how the key parties to this process think about and accomplish recidivism reduction. Because of their position, judges can be particularly effective in leading this initiative.
This sounds simple, but it often will not be. The statutory and procedural changes are difficult enough, because they will involve the cooperation of state legislatures. Moreover, while necessary, statutory changes are insufficient for producing real change in attitudes, beliefs, and, in turn, decision making. Discretion looms large in this process. Therefore, in combination with changes to laws and procedure, there needs to be a concerted local effort at persuasion combined with mechanisms that motivate compliance (incentives and disincentives). A prosecutor or judge cannot directly compel a defendant (and his or her defense counsel) to accept a sentence of diversion to treatment court or probation with treatment. However, it is possible to set up the choices such that the diversion or probation is the clearly more attractive option. Not everyone wants treatment, and not everyone is ready for treatment. This is where the careful assessment of individuals is essential to identify who are truly reasonable candidates for diversionary sentences. Once appropriate candidates are identified, the prosecutor, the judge, the defendant, and the defense counsel then negotiate the desired outcome using whatever lawful carrots and sticks are available.
This will not be uniform across jurisdictions. In some communities, prosecutors exercise the majority of the power and influence, while in others it is the judges, and in still others, the defense bar is in the driver’s seat. This will all need to be locally negotiated. But the first step is to get all parties on the same page regarding what a particular plea agreement and sentencing process is aiming to accomplish.
So what this looks like is an implementation process that includes structural changes (changes to statutes and criminal procedure as necessary), as well as a concerted process of bringing all of the relevant parties on board. The end goal is to institute a cultural shift in how we think about crime and punishment. Again, judges can be very effective lobbyists and leaders in the process of implementing statutory change and the revision in how the key players think about crime and punishment. After all, judges have played prominent roles in a variety of reforms and initiatives in the U.S. justice system, either by using the bench as a bully pulpit of sorts, or by taking the lead in change (for example, Judge William Wilkins in developing the Federal Sentencing Guidelines; Judge James Gray in his book Why Our Drug Laws Have Failed and What We Can Do About It: A Judicial Indictment of the War on Drugs; Chief Judge Gerald Wetherington and Judge Herbert Klein in developing the Miami Dade County Drug Court, the first problem-solving, diversion court implemented in the United States; Supreme Court Justice Kennedy who declared that in too many cases, mandatory sentences do more harm than good; Judges Warren and Marcus cited previously; Judge Judith Kaye for advocating for problem-solving approaches and her role in the Midtown Manhattan Community Court; Judge Steven Alm for developing the HOPE Court; among many, many others).
What makes this particularly challenging is that judges are typically elected officials (federal judges are exceptions because they are presidential appointments). Historically, tough on crime has played well in many parts of the country and is still an important consideration today. One method for countering this trend is to change the rhetoric about crime and punishment from tough on crime to smart and cost-effective on crime. Public opinion research indicates that the public is more than willing to think beyond a punishment-only crime policy.
INTRODUCE AND UTILIZE PROBLEM-SOLVING CONCEPTS IN THE SENTENCING PROCESS BASED ON COLLABORATIVE DECISION MAKING
Criminal sentencing should be a matter of considering and balancing three potentially competing interests: public safety, cost, and potentially negative consequences to the individual being sentenced (so called iatrogenic effects, or negative side effects that are criminogenic). These considerations enhance the complexity of the sentencing process compared to what we have been doing with mandatory sentences, mandatory minimum sentences, guideline sentences, retributive sentences, and heavy-handed attempts at deterrence. That complexity potentially requires a good deal of information as well as participation by a variety of experts in the process. It requires thinking more broadly about sentencing and engaging problem solving and collaboration.
There is a research basis for changing the mode of operating a conventional court in a manner that can provide more informed, relevant, recidivism-reducing sentencing outcomes. A good deal of scientific research and evaluation has demonstrated that problem-solving strategies reduce recidivism and reduce overall criminal justice costs (Berman and Gulick 2003; Cissner and Rempel 2005; United States Government Accountability Office 2005; among many more). Moreover, a collaborative approach introduces a variety of expertise into the sentencing decision, including clinical input, screening and assessment personnel, recidivism experts, community treatment and rehabilitation resources, community supervision personnel, and others.
Problem solving, which is the hallmark of alternative or diversion courts, can be applied to conventional courts in ways that offer the court sentencing-relevant processes and information. The concepts are fairly straightforward, but may not always be easily adaptable to traditional courts. However, the research available on the idea of applying problem-solving concepts to traditional criminal courts indicates the general advantages and feasibility of doing so (Center for Court Innovation 2007; Farole et al. 2005; Farole 2009; Kaye 2004; Nolan 2003; Wolf 2007, 2011).
So what does problem solving look like? It can be conceptualized both as an overall approach or perspective of a court, as well as the application of specific concepts or principles. A useful definition of problem-solving judging is provided by Farole (2009: 60):
Methods of judging that aim to address the underlying problems that bring litigants to court. Such methods could include the integration of treatment or other services with judicial case processing, ongoing judicial monitoring, and a collaborative, less adversarial court process.
The key elements of problem solving are: relevant, accurate information; community engagement; collaboration; individualized justice; and accountability. The following practices are characteristic of problem solving: a proactive, problem-solving, solution-seeking focus or orientation by the judge; a team-based, nonadversarial, collaborative approach; integration of social services in the court; ongoing judicial supervision; and direct interaction between the judge and the defendant. The point of problem solving is to have the information necessary to understand why a defendant is where he or she is today (What are the criminogenic circumstances?), what the evidence and experts indicate is the best way to reduce the likelihood of the defendant returning, and having the appropriate community or justice resources available to address those needs while ensuring compliance and accountability. It involves thinking creatively (within legal boundaries) to address/solve problems. It involves acceptance of responsibility for resolving a problem, not just passing it on or concluding “it is not in my job description.”
One of the best recent examples of problem solving in practice is the development of a new court in Hawaii. It started with the problem of enforcing conditions of probation leading to high rates of noncompliance. In 2004, Judge Steven Alm of the First Circuit in Hawaii started an experiment—the Hawaii Opportunity Probation with Enforcement (HOPE). The strategy is creative yet simple and is grounded in evidence regarding punishment and deterrence, which is that swift and certain (but not severe) punishment can deter. The logic behind HOPE is to be clear from the very beginning (referred to as a warning hearing) where expectations are clearly set regarding what will happen when a probationer violates conditions (the judge informs all participants that the first violation will immediately result in X days in jail, the second violation will result in Y days in jail, and so on). When a violation occurs, the probationer is quickly brought into the HOPE court. The probationer is informed about what is going to happen, and is immediately taken to jail. There are provisions for serving the jail sentence on weekends if the individual is employed. The evaluation evidence indicated dramatic increases in compliance and substantial reductions in revocations. A simple yet creative approach to solving a problem.
Focus group research by Farole and colleagues (2005) and the national survey of judges (Farole 2009) indicate general support for the application of problem solving to conventional courts. Approximately 75 percent of the judges surveyed report that they approve of the application of problem-solving principles in their current court assignments. Nearly 70 percent indicate that they practice some problem-solving principles in their court.
According to judges who participated in the research, the proactive, problem-solving judge is, in practice, a judge who asks questions, seeks additional information, and explores a greater range of solutions for cases. It is as simple as: Here is a case that presents a problem in terms of public safety/recidivism. What is the best way to problem solve? What is the best way to bring this to a positive resolution? Direct interaction with the defendant was determined by judges to be an essential component of motivating an individual to comply with orders. One of the easiest principles to apply in conventional courts, according to judges, is ongoing judicial supervision of individuals, especially probationers, in order to monitor progress, assess compliance, and enhance accountability. Traditional monitoring of probationers amounts to a revocation hearing when the probation office files a motion to revoke, well after there has been failure to comply with conditions or a new offense has occurred. At that point, it is generally too late for judicial intervention; the only real choice, considering how conventional courts operate, is the decision to revoke or not. While judicial monitoring is likely desirable, the reality of heavy caseloads presents a significant challenge. Judges recommended prioritizing those cases that require such monitoring. While the focus group research did not address this point, it might be productive to think of a HOPE type of sanction court that runs parallel to a problem-solving court, designed as a means or mechanism for enforcing orders/conditions and holding individuals accountable.
The integration of social services in the courtroom is seen as very valuable by most of the judges in the survey, especially for defendants with commonly identified criminogenic needs such as drug addiction, mental illness, and educational and employment deficits.
Both the focus group discussions and the subsequent judicial survey results indicate some potential pushback or obstacles to implementation of problem solving in conventional courts. The most common obstacle is in the form of limited resources, articulated in terms of lack of sufficient support staff and appropriate services, and the ever-present heavy caseloads. Additionally, the collaborative, team-based, decision-making model is relatively radical for some judges who value their independence, expertise, and experience in making difficult decisions. Getting past that, however, opens the door to smarter sentencing, sentencing based on enhanced information (through the use of actuarial risk and needs assessments), and an array of expertise (clinicians, social workers, case managers, mental health experts, and others) who can participate in the decision-making process as needed and provide assertive case management (a major barrier to the effective use of integrated social services is the lack of case management staff in the courts). Other prominent considerations include the observation that problem solving compromises the neutrality of the court, that it would require additional knowledge and skills, and the belief that it is not appropriate for all cases.
While making the case of applying problem-solving principles in conventional criminal courts is not entirely uphill, there are realities that must be confronted in the process. It is unclear whether some of the pushback from judges is based on a lack of information or insufficient justification for doing business is a new manner. One important step is to provide to judges the scientific basis, the evidence, that problem solving can be a more effective way of addressing public safety and recidivism.
Clearly, it is important that judges have the necessary tools for effectively practicing problem-solving principles, tools that include the sentencing options that are required for the variety of offenders and criminogenic needs that judges will encounter. Some of this is statutory, requiring changes to sentencing laws, and much of it is local, requiring the availability of diversion resources such as mental health treatment, substance abuse interventions, employment training, education programs, among others.
This model is one that involves dramatic change in a variety of local resources as well as statutory changes to sentencing. Judges can be quite effective lobbyists, especially when presenting a united front. Even more compelling is the collaboration of District Attorneys and the defense bar. The Affordable Care Act will likely assist with access to behavioral health treatment and as demand increases, it is reasonable to assume that capacity will expand. That will help provide additional community-based resources.
UTILIZATION OF ACCURATE, COMPREHENSIVE, NEWEST-GENERATION RISK AND NEEDS ASSESSMENT INSTRUMENTS TO GAUGE THE ASSESSED RISK AND IDENTIFY CRIMINOGENIC NEEDS; SUBSTANTIAL REVISION OF THE PRESENTENCE INVESTIGATION REPORT; UTILIZE TECHNOLOGY TO ASSIST IN DATA INFORMED SENTENCING
I was particularly struck by a comment a federal judge recently made to me regarding sentencing. He indicated that from his perspective on the bench, sentencing was particularly difficult because he did not feel that he had sufficient, reliable, relevant information to make good sentencing decisions. He said something to the effect that “my job is to sort people but I don’t feel like I have the information I need to make good decisions.”
How sentencers go about preserving and enhancing public safety involves the consideration of a number of factors that may include: information provided in presentence investigation reports (PSIs); evidence litigated at a sentencing hearing, such as aggravating and mitigating factors and character references; a variety of goals of sentencing (deterrence, incapacitation, rehabilitation, retribution, risk management); statutes that affect how much of a role a judge has in the process; and guesswork about how well a sentence will produce the desired outcome. With regard to this last point, the court can impose conditions of probation and deferred adjudication, and can monitor progress while an offender is on community supervision. However, a sentence of incarceration is beyond the court’s purview, effectively removing the individual from the jurisdiction and monitoring of the court. When a judge imposes a sentence of incarceration with certain expectations about, for example, participation in programs and services, such as mental health treatment or substance abuse treatment, education classes, length of sentence served, and so on, whether any of these expectations are met is up to the corrections department. The prison officials determine the conditions of incarceration, and it is up to (in most states) the parole authority to determine how long the individual will serve.
Sentencing has been and remains part science and part art. The research indicates that broadly considered, judges focus on three sets of concerns when sentencing: the blameworthiness of the offender; the practical implications of sentencing; and public safety (Silver and Chow-Martin 2002; Steffensmeier and Demuth 2000; Steffensmeier, Ulmer, and Kramer 1998). Blameworthiness reflects culpability and the proportionality of the sanction (that is, does the punishment fit the culpability of the offender and the crime?). The implications of the sentence involve considerations of collateral consequences (ties to family, children), as well as factors such as whether the offender can do the time imposed. Public safety involves considerations of future dangerousness and criminality. Steffensmeier and Demuth (2000: 709) report:
Judges’ assessments of offenders’ future behavior (dangerousness, recidivism) are based on attributions predicated on the nature of the offense (e.g., violent, property, drug), case information, the offender’s criminal history, and also perhaps, on characteristics of the offender such as education, employment, or community ties.
Ultimately, the sentencing decision probably involves, at a minimum, consideration of harm and risk. Harm is relatively straightforward: severity of the instant offense and prior criminal involvement. However, the research also shows that judges make little use of scientific risk assessment instruments to measure or estimate risk (Silver and Miller 2002). Instead, they appear to rely on “perceptual shorthand” or intuition (Steffensmeier, Ulmer, and Kramer 1998; Tonry 1987).
One of the key questions at this point is the extent to which science can improve determinations or predictions of risk compared to what is currently in place in many jurisdictions—“perceptual shorthand” and intuition. If this question had been posed twenty years ago, the answer probably would have been “not sure.” Risk prediction instruments have historically produced high rates of false positive predictions (meaning the prediction of recidivism when in fact it does not occur), often as high as 50 percent. However, recent innovations in risk prediction have mitigated much of the concern about prediction errors. This is the case for primarily two reasons. First, risk assessment predictions are most reliable and appropriate when they are used to classify individuals into categories of risk, rather than being used to attach a specific probability of recidivism to a particular individual (Silver and Miller 2002; Silver, Smith, and Banks 2000). Second, a new approach that relies on multiple models rather than a single model of prediction enhances accuracy. Silver and Chow-Martin (2002) report that the use of multiple models produces significantly more accurate predictions than single-model approaches, and in turn, significantly more accurate predictions than judicial intuition.
In 2014, scientific risk prediction provides relatively easy to use and more accurate instruments for assessing risk and criminogenic needs (Berk et al. 2009; Hyatt, Bergstrom, and Chanenson 2011; Silver and Chow-Martin 2002). Several states have either explicitly incorporated new generation risk assessment protocols into the sentencing process (for example, Virginia has used actuarial risk assessments since 2004 for placing the lower-risk 25 percent of prison-bound offenders in alternative, nonincarceration sanctions) or are beginning the process (Pennsylvania and Missouri).
The experience in Virginia highlights the substantial advantages of having actuarial risk assessments. Research indicates that standardized risk assessment instruments accurately discriminate among low-risk offenders sentenced to diversion and higher-risk offenders sentenced to incarceration or more intensive supervision. The evidence indicates that the low-risk offenders did in fact recidivate at significantly lower rates than the higher-risk offenders (Kleiman, Ostrom, and Cheesman 2007). Moreover, the research indicates that judges in Virginia appear to be properly using the risk assessment information in their sentencing decisions.
Widespread use of scientifically based actuarial risk and dynamic needs assessments could represent a sea change in sentencing and corrections, if the information provided is properly used. The ability to reliably differentiate low-risk from high-risk offenders, to identify the criminogenic circumstances that brought offenders into the courtroom, and the ability to reduce risk by addressing criminogenic circumstances allow the court to engage in what Judge Marcus calls “smarter sentencing.” It appears to be a matter of developing and implementing the right tools and assuring that they are properly used. There are several standardized, validated risk and needs screeners and assessment instruments currently available. The LSI-R (Level of Supervision Inventory—Revised) and ASI (Addiction Severity Index) are but two examples of widely used instruments.
In the course of developing the right tools, it seems that we need to reconsider the traditional presentence investigation report (PSI). PSIs have been in use for decades in state and federal courts. The typical PSI has a fairly standard format: characteristics of the instant offense, prior criminal involvement, victim impact, social and family history, employment and education, substance abuse, mental health, among other items. The PSI is usually prepared by a local probation office, and routinely includes a sentencing recommendation. Judge Marcus (2003: 78), relying on his experience, characterizes the typical presentence investigation report:
Addressing sentencing, writers [of PSIs] dutifully report the demographic, medical, and criminal background of the offender; the circumstances and perspective of any victims; and any applicable legal principles such as guidelines. Then they craft a recommended sentence based expressly on aggravation, mitigation or impliedly on just deserts, with no greater connection to what is likely to reduce criminal behavior than a conclusion that the sentence recommended is “appropriate.” … It is most likely our fault as judges for creating the expectation that our drummer is just deserts, but we almost never get analysis based on what is most likely to work and why.
It seems useful to reconsider the role and format of the presentence investigation report, as well as who is involved in its preparation. One of the critical components of problem-solving sentencing is the collaborative team approach. The team should consist of a variety of experts, including clinicians, social workers, recidivism experts, and case managers. The preparation of the PSI should be the responsibility of those individuals who are involved in the assessment of the offender, who can recommend to the court, based on risk and needs and other input, what may be an appropriate sentence/sanction/referral designed to reduce the likelihood of recidivism for that particular offender. Probation officers are not clinicians and usually do not know what the research indicates regarding reducing recidivism, thus they are probably not the most appropriate to be interpreting the information and making sentencing recommendations.
Too often in the past and too often today, criminal justice practice involves the application of the “one size fits all” approach and the nominal, “moving through the motions” sentencing and corrections policy. Marcus (2004: 17) describes it very fittingly:
We send thieves to theft talk, drunk drivers to alcohol treatment, bullies to anger counseling, addicts to drug treatment, and sex offenders to sex offender treatment. But we do this as a matter of symmetry rather than of science: we do not select offenders based on their amenability to treatment, but on the crime they have committed. We do not select providers on their impact on criminal behavior, but on their ability to provide timely paperwork. We may ask providers if offenders complete “the program” but we do not ask if they reoffend after treatment. Again, the issue is responsible pursuit of crime reduction—not nominal pursuit.
What this looks like is a process whereby the best information possible is available to the court regarding characteristics of the individual being sentenced, including risk and needs, and scientific evidence regarding what works in reducing recidivism. The latter point is not just some generic statement about, for example, drug courts working, rather it is what the odds are of this particular sanction reducing the probability of recidivism for this particular offender. It is a matter of putting the right information in the hands of the right experts, in order to make the best decisions under the circumstances regarding what is more appropriate for this particular individual given a variety of limitations, constraints, and uncertainties. Importantly, it requires a real sense of responsibility for resolving the individual’s criminality, not what seems to be the current practice of just passing offenders from one agency to another.
Objections to the use of standardized, reliable, and valid risk and needs assessments may be countered by the observation that absent such data, what we are left with are the idiosyncratic, subjective, intuitive methods that research clearly shows perform poorly, compared to risk and needs assessments available today (Andrews, Bonta, and Wormith 2006; Bonta 2007). Not to mention the potential for sentencing disparity when there is little guidance in sentencing decision making. That was after all the prime motivation for the sentencing reform of the past forty years.
There are existing models of the use of these techniques that can be implemented and adapted as necessary. Moreover, the National Center for State Courts (Casey, Warren, and Elek 2011) assembled a national working group to develop guidance for judges for using risk and needs assessment information at sentencing.
Technology and statistical probability are playing an increasing role in sentencing. For example, Multnomah County, Portland, Oregon has developed statistical tools that provide everyone involved in sentencing data about how well particular sanctions work with which offenders (Marcus 2004). Missouri has developed a computer algorithm designed to provide the court with sentencing alternatives on a case-by-case basis, as well as information on the costs of various sentencing alternatives and the recidivism experiences of similar offenders. As Michael Wolff, Dean of the St. Louis University School of Law and Chair of the Missouri Sentencing Advisory Committee (the organization responsible for developing the algorithm), described the purpose: “It’s about learning to use our prison resources for those we’re afraid of, not for those we’re mad at” (quoted in Kates, 2013).
The National Center for State Courts 2006 survey of judges, cited earlier, clearly indicates a willingness on the part of judges to pursue the goals of crime reduction and recidivism reduction through the use of evidence-based practices, offender risk and needs assessments, reduction of overreliance on incarceration, and increasing use of appropriate, effective alternatives to incarceration. Moreover, the same survey also queries the public and the results indicate that the public’s priorities for sentencing reform are quite consistent with those of judges. If there are concerns about the political ramifications of implementing the ideas I have discussed here, it appears that those concerns are likely inflated, and may be mitigated by focusing on the effectiveness and particularly the cost-effectiveness of these strategies.
The Role of the Prosecutor
Sentencing reform brought many significant changes to U.S. sentencing. Among those is the assertion that as the discretion of judges has been limited (one of the primary goals of sentencing reform), discretion simply moved upstream in the process to the prosecutor’s office. Some argue that the impact that prosecutorial decision making has on sentencing has increased substantially over time as a result of changes to sentencing laws (Cohen and Tonry 1983; Phelan and Schrunk 2008; Tonry 1996; Ulmer 2005) and that enhanced discretion is extraordinarily consequential in determining case outcomes. The discretion displacement argument reasons that the day-to-day decisions that prosecutors make more directly influence sentencing outcomes because judges have less discretion to set sentences.
One of the top two roles identified by prosecutors is as sanction setter (Phelan and Schrunk 2008). This requires prosecutors’ consideration of sanctions at the earliest stages of case processing. Decisions such as what to charge, what evidence to use, what to indict, what to plea negotiate, what to recommend at sentencing, and referral to preindictment, pretrial, and postadjudication diversion are decisions that prosecutors make that either directly and substantially or indirectly and subtly impact sentencing outcomes.
What does the research indicate about the shift in discretion as a result of sentencing reform? First of all, most experts lament that there is very limited research on the topic (Engen, 2008; Miethe 1987; Reitz 2011; Shermer and Johnson 2009; Wooldredge and Griffin 2005). The research that has been conducted has produced inconclusive results. Some (for example, Forst and Bushway 2010; Piehl and Bushway 2007; Ulmer, Kurlychek, and Kramer 2007) indicate at least partial empirical support for enhanced prosecutorial discretion, often in the form of circumvention around mandatory sentences, mandatory minimums, and guideline sentences. On the other hand, some research indicates little support for the discretion displacement hypothesis, or lack of support for it regarding limited aspects of sentencing.
While discretion displacement may be reasonable to expect, the evidence is inconclusive at the moment. From a policy perspective, we proceed with the observation that prosecutors do in fact exercise substantial discretion, and much of that discretion influences sentencing outcomes. While prosecutors cannot per se impose criminal sentences, their decisions and recommendations clearly influence the sentence. In addition, there is likely substantial variation across jurisdictions and even within jurisdictions in the extent to which prosecutorial discretion impacts sentencing. Nevertheless, it is important that we investigate the roles and responsibilities of prosecutors and in turn develop strategies for moving forward in the appropriate direction.
Given that prosecutors exercise a substantial amount of influence on sentence outcomes, it makes sense to ask how prosecutors view their roles and responsibilities, especially with regard to their direct and indirect impacts on sentencing and sentencing outcomes.
I have spent a fair amount of time consulting with prosecutors in various capacities. I have also served as an expert witness in criminal sentencing hearings. My takeaway from these experiences is that first and foremost, the prosecutors I have observed take a hard line regarding punishment as the primary tool of the justice system.
A recent case for which I served as a defense expert in the sentencing phase was an intoxication assault case. The defendant had a prior drug conviction, had an acknowledged problem with alcohol, hit two pedestrians while intoxicated, and then fled in his car. I was asked to testify to the jury about the likely outcome of incarcerating the defendant (he had pled to the charges). I proceeded to testify that the defendant likely needs substance abuse treatment, which he would probably not receive while in prison, that the parole system is not currently designed to provide rehabilitative services to enhance successful reentry, and that his chances of finding legitimate employment when released are limited. The prosecutor’s cross-examination was designed to discredit that testimony and maximize the sentence that the court would impose. While this example is just that, one example, it is likely that the tough on crime persona is well embedded in the prosecutor role and clearly entrenched in the culture of the prosecutors’ office.
Prosecutors are advocates for the government in an adversarial, litigious setting. Because punishment has been and largely continues to be the primary focus of sanctioning, one concern expressed by observers of sentencing reform is that in this role, prosecutors’ interests and values are in the direction of maximizing punishment (Irwin and Austin 1994; Zimring and Hawkins 1994), focusing on incarceration as the appropriate punishment in most felony cases. Unfortunately, there has been little additional survey research conducted on prosecutors’ beliefs and attitudes regarding crime, crime control, and punishment. We know more about how Canadian, British, and Hungarian prosecutors view crime control than we do about U.S. prosecutors. What we do know from surveys conducted by the American Prosecutors’ Research Institute (APRI) is that prosecutors’ self-described priority is prosecuting crime and punishing criminals (Nugent, Fanflik, and Brominksi 2004). The National District Attorneys Association’s National Prosecution Standards (third edition) indicate that the primary responsibility of the prosecutor is largely to assure that the guilty are held accountable. Very little is known about how prosecutors make decisions regarding preferred sentencing outcomes. What we do know indicates that prosecutors’ sentencing preferences are primarily driven by the availability of sentencing alternatives in a jurisdiction (Rainville 2001). Prosecutors in areas with a greater amount and variety of sentencing alternatives tend to prefer less restrictive sentences. A secondary effect was the personal belief of the prosecutor in the effectiveness of punishment versus the effectiveness of rehabilitation. Those who believe in punishment favor more punishment-focused sentences and those who believe rehabilitation is or can be effective favor less restrictive sanctions.
THE BIG PICTURE FOR PROSECUTORS
The success of any reforms to adjudication and sentencing involves the adoption of the big picture goals of crime and recidivism reduction. This is just as relevant to prosecutors as judges. For example, many negotiated pleas have sentences already determined by the prosecutor, thus enhancing the discretion and influence of prosecutorial decisions compared to judges. Moreover, recent evidence indicates that prosecutors have achieved even more discretion and influence over sentencing as a consequence of the implementation of harsher penalties, including mandatory sentences, and mandatory minimum sentences that have enhanced prosecutors’ plea negotiation leverage, increasing the plea percentage a bit north of 96 percent. A September 25, 2011, New York Times article quotes a former federal prosecutor and now a law school professor: “We now have an incredible concentration of power in the hands of prosecutors.” Or a former federal judge who is now a professor of law: “Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome. … With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”
The goals of sentencing and the scientifically based effectiveness of various sentencing options need to be clearly communicated. If a prosecutor believes that a particular case deserves or requires harsh punishment, that is entirely legitimate. Let’s just be honest about what we are trying to achieve. Retribution without any particular utilitarian goal can be an appropriate consequence for a crime, as can accountability or incapacitation. But these outcomes have costs and limited benefits. It is that balance between cost and effectiveness that should drive decision making. Does a particular sentence outcome promote the big picture goals of crime and recidivism reduction? Is there anything in the sentence that can reasonably (that is, scientifically) be expected to change behavior? This is perhaps the new version of truth in sentencing.
Where does this investigation of prosecutors and the prosecutorial role leave us? Once again, we return to evidence-based practices with a focus on assessment, problem solving, collaboration, and community/problem-solving prosecution as a reasonable way to move prosecutorial decision making in the appropriate direction. What that means is that the District Attorney (typically, an elected official) and the line prosecutors need to understand what is effective for reducing recidivism and what is not. That should not be based on opinion, but scientific evidence. While there will be competing pressures on decision making, originating from a variety of sources—the public, the media, the victim, political issues—prosecutors need to identify on a case-by-case basis what the intended goal is (presumably, the typical goal will be reducing the likelihood of recidivism) and how best to accomplish it. So while some cases will involve retributive outcomes, many others (presumably) will be identified for diversion and rehabilitation, and others still for incapacitation. What is missing from these goals is deterrence, if by “deterrence” we mean “punishment severity.” There is still the option of swift and certain sanctioning, but that would typically be in the context of a diversion sentence to probation or other types of diversion/community release programs such a problem-solving courts.
What follows is a series of scientifically supported recommendations that appear to be appropriate strategies for adoption by prosecutors. The United States Department of Justice, National Institute of Corrections and the Crime and Justice Institute (Fahey 2008) have developed a set of evidence-based practices for prosecutors. These appear to be thoughtful and informative, therefore they are incorporated into the following recommendations.
SHIFT FROM CASE PROCESSING TO PROBLEM SOLVING
The primary, traditional role of the U.S. prosecutor is that of case processor, a role that characterizes the vast majority of prosecutors’ offices and prosecutors themselves. The focus is on the efficiency and effectiveness of processing large numbers of felony and misdemeanor arrests brought to the prosecutors by law enforcement. Extraordinarily large caseloads are typical in large urban District Attorneys’ offices.
The case processor role is largely a passive one, involving reacting to cases provided by local police. Once a case arrives in the prosecutor’s office, screening occurs to determine the merits of the evidence. Weaker cases are screened out or set aside for further investigation. Cases carried forward to indictment are then on track for efficient conviction. The vast majority of felony and misdemeanor indictments (95 percent and greater) are plea negotiated to conviction and approximately 75 percent of cases that go to a bench or jury trial end up in conviction. From the case-processing perspective, in which the primary metric for success is conviction, prosecution is accomplishing its goal. Conviction rates are quite high, but that should not be surprising because prosecutors screen the cases for prosecution.
Some forms of criminal prosecution are undergoing a bit of transition toward what is referred to as community prosecution or problem-solving prosecution. Community prosecution is characterized by three primary elements, compared to traditional criminal prosecution (Nugent-Borakove 2007; Nugent, Fanflik, and Brominski 2004; Nugent 2004). Community prosecution focuses on partnerships with a variety of government agencies and NGO community-based groups, the use of varied methods including problem solving to address crime and public safety, and community involvement in the problem-solving process.
The Bureau of Justice Statistics (BJS) and the American Prosecutors Research Institute have been researching and tracking how prosecutors view their roles in terms of traditional prosecution and punishment on the one hand, and community or problem-solving prosecution on the other. While there are many similarities between community prosecutors and traditional prosecutors, there are also key differences in the methods and strategies employed to achieve the desired goals. The key differences are that community prosecutors are more proactive, and rely on a broader array of problem-solving strategies. However, much of the focus of community prosecution is on quality of life crimes, low-level misdemeanors on a segment of the offender population characterized by chronic homelessness, mental illness, drug/alcohol addiction, unemployment, and poverty. One objective is to more systematically adapt the principles of community prosecution for more serious misdemeanor and felony cases.
The BJS survey series of Prosecutors in State Courts began inquiring about community prosecution practices in local prosecutors’ offices in 2001. There are only two waves of the survey that report data on problem-solving prosecution practices, 2001 and 2005. The results indicate an increase over that period in self-reported use of community prosecution principles. However, the surveys provide no real indication of how much community prosecution effort is expended or how extensively the principles are practiced. One conclusion is that community or problem-solving prosecution is gaining traction. However, not much is known about how it is understood, developed, implemented, and utilized within or across jurisdictions, or about how it has or will impact prosecutors’ perceptions of their roles and responsibilities, especially with regard to crime control policies and the severity of punishment.
Community prosecution is a step in a good direction. But like diversion courts and other justice initiatives, it has a relatively small presence in a very large system. What evidence-based practices call for is a substantial expansion of problem-solving principles into prosecution in general. As Fahey (2008) notes:
There is a growing national movement to reform our current correctional practice, to reduce recidivism and protect public safety through the use of evidence-based practices. Many of the EBP principles are inherently relevant to the work of a prosecutor. Diversion determinations, charging decisions, plea negotiations, sentencing arguments, and revocation requests are critical junctures in the processing of a criminal case, require discretionary decision-making.
If we begin with the premise that decisions made by prosecutors have, as the primary goal, the reduction of recidivism, then the scientific evidence (see Fahey 2008) clearly indicates the following. First, that the primary utilitarian function of custodial sentences (prison and jail) is incapacitation. We should limit the use of custodial sentences to serious violent offenders, habitual offenders, and others for whom it is determined that diversion/rehabilitation will be ineffective, and the use of such custodial sentences for offenders whose offending, culpability, and moral blameworthiness are of such a nature that a retributive custodial sentence is warranted. We should also obtain as much accurate risk and criminogenic needs data as possible through the proper use of actuarial risk and dynamic needs assessment instruments, and evaluate criminal cases in a collaborative manner with a variety of perspectives. Prosecutors are lawyers, not clinicians.
The end game in reengineering criminal prosecution is a structural and cultural shift away from the traditional approach of case processing, conviction, and maximizing the punishment. A focus on cases puts us in the position of simply devising ways to quickly move them through the pipeline. The alternative proposed here is to think in terms of problems and situations rather than cases, understanding the criminogenic circumstances of individual offenders, and facilitating outcomes that best promote (according to the evidence) recidivism reduction. Thinking in these terms potentially causes prosecutors to think differently about roles and responsibilities, and eventually heads us in the direction of a shift in culture.
A CULTURAL SHIFT IN THE PROSECUTOR’S OFFICE
The traditional role of the prosecutor is to represent the state’s interests in the adjudication and sentencing of criminal offenders. Much of the focus of prosecutorial success is on conviction and punishment. Today, we know the limitations of punishment in terms of producing positive public safety outcomes. In order to move the criminal justice system in the direction indicated by the scientific evidence, various agencies and actors must think differently going forward about roles and responsibilities and, in turn, the culture of the organization. One of the primary changes for prosecutors is a clear acceptance of responsibility for reducing recidivism: not just “doing my part” in a process involving several different agencies and individuals, but globally taking responsibility for recidivism reduction.
The goal here is balance. The scientific evidence clearly indicates moving in the direction of a more balanced approach to recidivism reduction and enhancement of public safety. That balance considers traditional just deserts, incapacitation, retribution, and control and punishment on the one hand, and correctional rehabilitation and diversion on the other. Clearly, some offenders need to be removed from the community. That decision should be based on considerations of the potential to rehabilitate serious, chronic offending, moral or emotional justification for retribution, and the seriousness of the crime. However, for many others, there is a clear opportunity to actually change behavior. We can have alternatives in place, we can have the mechanisms for making better decisions, but if we do not have a culture that promotes balance and better decision making, it is all for naught.
RISK AND NEEDS-BASED DECISION MAKING
Earlier in this chapter, I referred to criminal sentencing as sorting individuals into appropriate categories. Proper or accurate sorting is challenging for a number of reasons, including lack of universal agreement about the goals of sorting and lack of information relevant to making optimal sorting decisions. Prosecution also involves sorting both in terms of adjudication of criminal cases as well as the impact that prosecutorial decisions have on sentencing outcomes. Prosecutorial sorting is, or should be, equally as challenging.
Because charging, fact/evidence, plea negotiation, and diversion referral decisions all have substantial impacts on sentencing outcomes and, in turn, on the big picture goals of crime and recidivism reduction, it seems reasonable to begin the process of learning key decision-relevant information about an offender as early on as possible. One of the universal evidence-based practices is accurate, actuarial-based risk and needs assessment. We seem to have fairly clear conceptions of an offender’s harm or dangerousness, based on the evidence presented and criminal history, but we have paid much less attention at this point in criminal processing to what it would take to change an individual offender’s criminal behavior.
The use of current-generation actuarial risk and dynamic needs assessments is critical to an accurate determination of risk, as well as the development of a strategy for recidivism reduction on a case-by-case basis. Unfortunately, this is a relatively foreign concept at the prosecution stage of processing. If one does not know, with a significant degree of accuracy, the totality of the primary criminogenic problems or needs that contributed to an offender being arrested, then a prosecutor is not in a position to make informed decisions other than case-processing decisions. If what the prosecutor knows is the evidence that the police have gathered in the instant offense, which in turn leads to the charging decision, then that prosecutor is probably unable to make informed decisions about diversion, referral, or other rehabilitative alternatives.
Implementing risk and needs assessments as early as possible in case processing simply provides the prosecutor with the totality of the circumstances at a point before key decisions are made. For example, referral to diversion courts should happen early in case processing, before a defendant goes too far down the hallway toward traditional criminal adjudication. Having accurate, valid information that is systematically collected for all defendants puts prosecutors in the position of better decision making, assuming relevant alternatives are in place, a topic I take up in chapter 5.
It is also important to take the screening and assessment process to the next level. This incorporates clinical assessment regarding factors such as trauma effects, neurocognitive and neurological impairment, and deficits that should have a significant role in prosecutorial decision making and, in turn, the impact those decisions have on case outcomes including sentencing.
COLLABORATION
The problem-solving model is based in part on collaborative expertise. Many offenders come into the justice system with a complex set of circumstances or criminogenic needs. Specialized expertise (for example, psychiatrists and psychologists, substance abuse treatment and addiction specialists, employment training specialists, and educators) is generally required to measure and understand the severity of the problem and to develop the appropriate intervention to effectively address it.
Prosecutors are lawyers, not psychologists, psychiatrists, clinicians, social workers, educators, or recidivism experts. Part of the rethinking of prosecution is the introduction of a collaborative decision-making process that includes expertise in a variety of areas of criminogenic need, such as mental health, substance abuse, trauma, intellectual deficits, education and employment, and others. The problem-solving approach envisions a collaborative staffing of cases to determine what is the most appropriate, cost-effective approach for each case. If the goal going forward is to more effectively reduce recidivism based on obtaining more extensive diagnostic information on a variety of domains or dimensions, it makes sense that the appropriate experts are involved in the decision-making process. Because the decisions that prosecutors make can and do influence sentencing outcomes, often in quite substantial ways, it makes absolute sense for prosecutorial decision making to become more deliberate, more informed, and collaborative, and based on a broad array of dispositions and sanctions.
On the other hand, this is a fairly radical change to how cases are typically prosecuted. For that reason, these changes cannot be implemented overnight and cannot simply be decreed. These changes are in part structural, but they are also changes in thinking about crime and punishment, thinking about roles and responsibilities, and thinking about the end game. In effect, it involves a new culture of prosecution.
Crime is not just a criminal justice concern with traditional criminal justice “solutions.” In many instances, crime is a public health issue (for example, mentally ill offenders, substance abusing offenders, offenders with neurocognitive deficits), an employment or workforce issue, a public education issue, or an affordable housing issue. In order to effectively change behavior, and in turn reduce the likelihood of recidivism, a variety of criminogenic problems need to be identified and community resources need to be brought to the table to address them.
We might benefit from borrowing a concept from the civil side of the court docket. Civil litigation, like criminal prosecution, relies nearly exclusively on strategies that avoid litigating cases at trial. On the criminal side, that is a negotiated plea. On the civil side, it is case mediation and settlement. Perhaps one way to think about the collaborative, problem-solving strategy for the prosecution of criminal cases is the mediation model. There are clearly legal issues and those interests are represented by the state’s attorney and the defendant’s attorney. However, as we have been suggesting, there are potentially many more considerations than just the prosecution of a criminal matter.
The concept of mediation as we are considering it here is a significant rethinking of and revision to the plea negotiation process. Rather than the typical negotiation between the prosecutor and defense counsel, involving a plea offer in exchange for lesser punishment, a revised approach would include all relevant interests, such as diagnostic and clinical expertise, the judge, jail and probation, community treatment, intervention and rehabilitation resources, victim input, and whatever other parties are relevant and/or necessary for case resolution.
The process would involve a triage stage at the beginning in which cases are sorted perhaps into two categories: (1) criminal adjudication, for those cases that do not merit any kind of diversion from criminal prosecution or rehabilitation efforts, either because of the offense elements (such as a violent crime or sex offense, among others deemed appropriate) or characteristics of the offender (habitual offender, low likelihood of successful intervention); and (2) cases for which there is an identified reasonable opportunity for rehabilitative intervention, based on risk and needs assessment and other screening data. The cases identified for traditional criminal prosecution then proceed as they currently do and are plead out and sentenced in a more traditional fashion (essentially probation or prison/jail). Offenders in the second category then undergo a more extensive case assessment, identification of appropriate interventions, securing available resources, and determination of the appropriate disposition (drug court, deferred adjudication, probation, jail plus programming, and so on).
This collaborative decision making should begin early in case processing. Comprehensive risk and needs screening and assessment should have been completed prior to this point so that those assessments may serve as a basis for more informed decisions early on.
There are several challenges this approach will encounter. One is developing and implementing the necessary structural and cultural changes required. It is often easier to implement structural changes than changes in thinking, beliefs, and attitudes. For some, it will involve something like resocialization in the job of prosecutor, a reorientation from the concept of the case to the concept of the problem, and all of the changes that are necessary to effectively address these problems.
Funding will be an issue. What is proposed here will require additional resources as prosecution caseloads will change. Resources will also be required to conduct the necessary screening and assessments and hire the relevant experts for collaborative decision making.
It is also reasonable to expect resistance from defendants. Many will not want to engage in diversion, intervention, and rehabilitation. Many will want the more punitive approach (a prison sentence) so they do not have to go through treatment/rehabilitation. They can just get it done quicker if they follow a traditional path. There are validated ways to assess treatment readiness/willingness on the part of defendants, and such assessments should become routine in order to assure that rehabilitation resources are effectively used (these assessments are referred to as treatment readiness assessments). There are also methods for coaxing or encouraging individuals (for example, motivational interviewing) that can be important in engaging participation in alternatives to traditional sentences.
It is also reasonable to expect pushback from the defense bar. Defense lawyers often think in terms of minimal sanction or punishment as the goal for the defendant, and sometimes that may translate into rejecting a diversionary, rehabilitative option in favor of a straight punishment option. Moreover, defense attorneys, like prosecutors, are trained to think in adversarial terms, thus often by definition what the government wants may not be in the defendant’s interest. Just as a cultural shift will be necessary in the prosecutor’s office, a similar shift will need to occur among defense lawyers. Defense lawyers will need to be educated regarding what works and what does not and about the global goal of reducing recidivism. And defense lawyers will need to think differently about their role in this process. They, like prosecutors, will need to think in terms of a problem, rather than a case, and engage their roles and responsibilities in more of a problem-solving manner than perhaps they have in the past. And just like prosecutors, defense lawyers are lawyers, not clinicians, behavioral experts, or social workers. Thus, the decisions about what treatment or intervention a defendant may need, or how long the defendant should be in that treatment, is not something the defense lawyer is trained to address and should not address without expert assistance. Clearly, preservation of constitutional protections and assuring due process in the proceedings will be a primary responsibility of the defense lawyer. But so will collaboration and mutual problem solving.
Because 80 percent of defendants are indigent and require appointed counsel or public defenders, it may be necessary to develop public defender offices in those jurisdictions that have appointed counsel systems. Appointed counsel rotate into cases and the composition of lawyers is often changing. It will be particularly challenging (though not impossible) to reeducate and resocialize appointed counsel to get on board with these proposed changes. Logistically, it seems that it would be more effective with a public defender system.
LEADERSHIP
One of the primary reasons that sentencing reform of the 1970s, 1980s, and 1990s was embraced on the scale witnessed, including the widespread adoption of truth in sentencing, was due to the leadership, assistance, and incentives provided by the federal government. The same is the case, for example, with community policing and problem-solving courts. There are a variety of organizations that support community prosecution, including the National District Attorney’s Association (NDAA), the National Center For Community Prosecution (NCCP), and the American Prosecutor’s Research Institute (APRI). While there are local jurisdictions that engage in some of the practices that are recommended here, what is likely required for this concept to gain traction is the declaration of a focused agenda at the national level.
But such procedural and cultural transformations also require local leadership on the part of District Attorneys. DAs set the agenda in their offices, so the District Attorney must be a prime mover for such initiatives to be successful. Clearly, what I am recommending here will require substantial changes in resourcing, in procedure, perhaps in statutes, and clearly in thinking. It will also require political courage. DAs are typically elected officials and historically many have been elected with the crime control message. Perhaps changing the rhetoric from tough and punitive to balanced, smart, effective, cost-effective, and victim and victimization centered (for example, making the reduction of victimization the priority) can gain some political leverage. Again, the point is not to jeopardize public safety. In all circumstances, risk of reoffending is the driver of initial decision making. The question is not whether supervision and control should be a consideration. Instead, how much supervision and control is necessary is the first question, followed by the extent to which we can at the same time engage behavioral change strategies.
I now turn to a discussion of sentencing structure and statutes as I reconsider the big picture of criminal sentencing.
RECONSIDERING SENTENCING STRUCTURES AND STATUTES
The 2006 National Center for State Courts’ survey of state chief justices found that the primary concerns or complaints of state felony trial judges are high recidivism, lack of appropriate and effective sentencing alternatives, and lack of sentencing discretion by judges to more effectively and fairly sentence individual offenders. One of the overarching themes from these comments is, among other things, dissatisfaction with fairly unidimensional, one-size-fits-all sentencing. This is consistent with characterizations of U.S. sentencing and corrections policy (for example, Beckett 1997; Beckett and Sasson 2004; Western 2006). As I discussed earlier, crime control is based primarily on punishment and control, to the relative exclusion of alternatives. I have also documented that sentencing reform over the past forty years has limited judicial sentencing discretion. Moreover, the concerns expressed by judges about recidivism are supported by current scientific evidence about the failure of current policies to reduce recidivism. In effect, the view from the trenches is quite consistent with research-based profiles of U.S. criminal justice policy, as well as scientific evaluations of the impact of punishment and recidivism.
The term that best applies to a reconsidered sentencing policy is, once again, “balance.” Balance between sanctions of punishment, control, and accountability on the one hand, and strategies targeting behavioral change on the other. Warren (2008: 324) states it quite well:
Sanctions alone will not result in positive behavioral change or reduce recidivism. On the other hand, treatment alone may not provide the punishment or behavioral controls that are appropriate or necessary. Policies that expect to control crime solely by punishing the offender’s past conduct, without any meaningful effort to positively influence the offender’s future behaviors, are short-sighted, ignore overwhelming research evidence, fail to capitalize on opportunities for substantial cost savings and needlessly endanger future victims and public safety.
So where does this lead us? A number of considerations appear relevant to the discussion of where we go from here regarding sentencing statutes and structures. One involves enhancing the ability of judges to utilize effective, evidence-based alternatives to traditional punishment-oriented sentences. Research indicates a number of quite viable recidivism-reducing alternatives to incarceration. Thus, judges need the statutory flexibility to determine who is appropriate for alternatives and then the ability to impose those sanctions. Clearly, this also requires sufficient resourcing of these alternatives to provide adequate capacity and appropriate implementation levels and efforts. The latter point is that it is not sufficient to just have a drug court, for example. To be effective, the drug court should be large enough to accommodate demand and it needs to be designed and operated according to what the scientific evidence has discovered to be the effective components and characteristics of a successful drug court. Too often we have seen alternative sentencing options as symbolic gestures, insufficiently funded, operated by overburdened and uncommitted employees who go through the motions at best (see Marcus’s point above about the responsible pursuit of crime and recidivism reduction).
The second consideration involves the ability or opportunity to sentence both the offense and the offender. That is, permit evidence regarding not just the offense (and thus the harm of the instant offense and the harm of prior criminal involvement), but to consider and evaluate characteristics of the offender that are relevant to recidivism reduction. Such a consideration would involve assessing criminogenic circumstances and conditions that should be addressed in order to effectively change behavior and, in turn, reduce the likelihood of recidivism and victimization.
I argued earlier that the sentencing decision is a pivotal point in the processing of criminal defendants. This has been historically true, at least for the past thirty-five to forty years, because the sentencing decision has dictated the longer-term aggregate consequences—successes and failures—of U.S. criminal justice policy.
It is also a pivotal point going forward because if the appropriate sentencing options are in place (meaning balanced sentencing options that address enhancement of public safety and recidivism reduction), then the sentencing decision is critical in determining that the right offenders get the right sentence, or more accurately, the right outcome. If that is generally the case, then research indicates that we can expect recidivism reductions, crime reductions, cost reductions, and the enhancement of public safety.
Obviously, evidence-based practices cannot drive all sentencing policy. Sentencing and punishment have emotional, moral, and ethical elements. Therefore, we need to keep the door open for retributive sentences. But choices should be based on the optimal balance of utilitarian and moral sentencing motives. Some cases are simply beyond the pale in terms of failed attempts at rehabilitation, habitual offending, the level of violence perpetrated, and/or willful disregard for civility and humanity. Retribution may be simply what the community wants and the case calls for, and there clearly is a place for that type of sentence, although presumably at a much lower frequency than today and what we have seen in the recent past.
But once again, it seems reasonable to suggest that these decisions should be on a case-by-case basis, considering not only the elements of the offense and prior criminal involvement, but the criminogenic circumstances that are related to why this person is engaged in crime and, in some instances, related to their culpability. What makes us think that all third strike offenders should receive the same punishment? What we have lost with the sentencing changes of the past several decades is much of the consideration of the characteristics of the offender in the sentencing process.
So what should sentencing look like going forward and what statutory changes are required to facilitate this? First, sentencing should be a collaborative process in which the crime is the problem and the goal is, on a case-by-case basis, to bring all of the relevant information and resources to the table to develop a strategy to solve that problem. This process should be presided over by the judge, but must involve the prosecutor, the defense counsel, clinical experts, and community-based treatment/intervention providers, as well as others. I now turn to what appear to be relevant statutory and structural changes to sentencing to accomplish what I have outlined here.
The statutory framework that can facilitate the sentencing model outlined above is probably a hybrid consisting of generally indeterminate sentencing combined with something resembling presumptive or suggestive guidelines. The guidelines could indicate (not precisely require, but presume) incapacitation for violent offenders, serious habitual offenders, and serious offenders for whom there is little chance of significant behavioral change, and risk management and behavior change for the rest.
It is fairly easy to use statutes to identify violent offenders (for example, murder, aggravated assault, sexual assault). However, when it comes to habitual offenders, prior statutory attempts (for example, three strikes) have fallen short for a number of reasons (Schiraldi, Colburn, and Lotke 2004; Zimring, Hawkins, and Kamin 2001). A common problem with a wholesale policy or statutes like habitual offender laws is the high presence of false positives. Whether the magic number is three, ten, or forty priors, such gross classification of offenders fails to consider individual variation that drives the likelihood of future offending, individual factors that often play a more important role in recidivism than prior criminal involvement (for example, age). Decisions about habitual offenders and those for whom behavioral change is unlikely require significant evaluation from a variety of perspectives. Simply legislating some set of criteria like number of prior convictions to qualify as a habitual offender and number of prior probations or other diversions to identify rehabilitation failures keeps us precisely where we are today, with state legislatures and Congress creating gross categories of offenders and tossing those who have one or two characteristics in common into the same category. That is what determinate sentencing essentially does. Under such sentencing statutes, there is little or no regard for individual circumstance or for variation among individuals. Such approaches seriously miss the point of getting smarter and more deliberate about who should be in prison (incapacitated) and who should be diverted and how.
A reasonable approach is one that combines diagnostic assessment of risk, criminogenic circumstance, and recidivism potential that can be used to inform the collaborative decision making within an indeterminate sentencing framework. Keeping sentencing generally indeterminate allows for more deliberate decision making on a case-by-case basis, and gets us away from the unnecessary incarceration of offenders. Indeterminate sentencing can facilitate the collaboration of multiple interests in the sentencing process, which generally reduces the likelihood of an overly significant impact of discretion by any one individual. Indeterminate sentencing places discretion back in the court, but under what I am proposing, with a very different collaborative approach in which sentencing is more of a collective decision.
Under this approach, there is less room for incarceration sentences. Sentences of incarceration should be reserved for a subset of offenders and offenses for which the only instrumental goal is separation from society. It should be clear that incarceration sentences function to incapacitate rather than deter. Incarceration sentences should reflect the moral disruption caused by particular types of crime, through their nature (for example, murder, predatory sexual crimes, abuse of the young or elderly, among others) or their severity (the amount of harm inflicted in the course of committing the crime). Clearly, these decisions about sentences of incarceration (or even the death penalty) should reflect community concerns, attitudes, and sentiments, absent the political rhetoric and factual error that has so typically characterized sentencing legislation over the past forty years. These decisions should be guided by moral questions about what behaviors are sufficiently offensive to civil society, culpability of offenders (including the mental health and intellectual capacity of offenders), community impact of the crimes, cost considerations, and the likelihood that when released, such offenders will not have many protective assets designed to reduce the likelihood of reoffending.
Crafting presumptive guidelines that provide the overall structure to the sentencing decision-making process should help clarify the general goals of sentencing and can serve to build awareness and eventually consensus with regard to priorities about public safety, incarceration, diversion and rehabilitation, and the most effective ways to reduce recidivism and victimization. Presumptive guidelines can also be an effective tool for clarifying the nature of the sentencing process. The guidelines provide structure, direction, and guidance to a generally indeterminate sentencing scheme.
Now the challenges. First, there are fifty-two different sovereign jurisdictions. It will be a massive enterprise to get these jurisdictions even close in terms of the revised sentencing processes discussed here. However, one important strategy (a strategy that was fundamental in the earlier round of sentencing reform) is federal leadership, assistance, and incentives. The existence of a clear example, whether federal or state, that other states can investigate, evaluate, and mimic or modify can facilitate adoption in other jurisdictions. Moreover, the federal government can provide incentives to the states to get smarter about criminal justice policies and practices, including sentencing, the use of incarceration (including admissions, sentence length, and time served), diversion programs, behavioral change strategies, and a host of other evidence-based initiatives.
There has already been some movement away from mandatory sentences, primarily because of the fiscal impact they have on state incarceration budgets. For example, New York State has made significant modifications to the Rockefeller drug laws. Oregon’s House Bill 3194 proposes substantial retreats from the state’s mandatory sentences. Georgia House Bill 349 proposes some modest changes to Georgia’s mandatory sentences. At the federal level, the Justice Safety Valve Act gives federal judges more discretion in certain circumstances involving mandatory sentencing situations. This is movement in the right direction, but in many cases it is more symbolic than substantive. The path forward outlined here will require overhaul of sentencing statutes, not fine-tuning. An example of what appears to be substantive change is Attorney General Holder’s efforts to reform federal mandatory sentences under the Smart on Crime initiative. How far it goes is yet to be seen, but the momentum is starting to build.
Another challenge is funding. If and when states move away from massive incarceration toward more diversion and interventions aimed at risk management and behavior change, there will be a shift in location of corrections as well as a shift in the responsibility for funding. Incarceration in prison is typically managed and funded by state government. Jail, probation, diversion courts, and other diversion alternatives are largely locally funded. The model proposed here is one that envisions many fewer offenders in prison and many more on diversion sentences and short-term jail incarceration (these are discussed in much greater detail in the chapters ahead). The challenge is that this model places a much greater burden on local jurisdictions (primarily counties), assuming current funding protocol remains in place. The burden is financial, as well as scale (increased numbers of offenders), management, and availability of local treatment and rehabilitation resources, among others. A significant portion of the funding challenge can be addressed if states redirect the cost savings from reduced prison populations to local jurisdictions in support of their increased caseloads. There are funding models in place that do precisely that (for example, California’s performance incentive funding).
However, the extent to which state legislatures actually do shift funding is a very large question. It certainly makes sense. When the state burden declines as prison populations decline, some of the funds that were devoted to incarceration should be redirected to local jurisdictions to help support community-based treatment and rehabilitation. As we move toward reduced incarceration, the offenders that are diverted in its various forms will increase, thus increasing the financial burden on local jurisdictions. There is likely to be substantial pressure on legislators to allocate those funds across a variety of competing interests (education, health care, debt service, and so on). Thus, the success of criminal justice policy going forward depends on sufficient funding for sufficient capacity at the local level, and not to shift an undue burden for funding on counties and cities. Among the problem-solving issues on the list here is how to assure that more funding is redirected to local jurisdictions for administration of criminal justice.
Another challenge is that the states and then the local jurisdictions within the states will embrace these initiatives with varying levels of enthusiasm, fidelity, resourcing, comprehensiveness, constraints, and pushback. Some will be more effortful and successful than others. To assume differently is naïve. It is likely that the best we can expect is a general consistency in goals (reduce recidivism and victimization, reduce reliance on incarceration, increase alternatives designed for behavioral change), and general consistency in the policy and program direction it all takes.
CONTEMPORARY PUBLIC OPINION ABOUT CRIME AND PUNISHMENT
Americans are typically viewed as punitive regarding crime. As Warr (2000: 22) concludes: “Americans overwhelmingly regard imprisonment as the appropriate form of punishment for most crimes.” However, a closer look at the public opinion data suggests a broader sophistication of opinion, one that the political process and the media may have muted. There is a duality to public beliefs and attitudes about crime and punishment. On the one hand, there is the element of proportionality in punishment, reflecting a deep-seated belief that wrongdoing should be punished and that the severity of the punishment should be proportional to the harm inflicted. On the other hand, there is the utilitarian element that reflects the goal of recidivism and crime reduction, with a primary focus on correctional rehabilitation. While these two views—enhanced severity of punishment and correctional rehabilitation—have historically been adversarial positions in electoral politics and policy debates in the United States, the duality of public opinion about sentencing and punishment may simply reflect a more balanced approach to the administration of criminal justice.
The public’s attitudes about sentencing, punishment, and rehabilitation are long-held views. While most of the scientific survey research on public attitudes about sentencing and punishment has been conducted relatively recently, there is good evidence (Doble 2002; Doble and Klein 2009) that public opinion on punishment has been, for decades, much more multidimensional than assumed by listening to electoral rhetoric during the 1980s, 1990s, and 2000s. It is ironic that crime control has existed for much of the past forty years as a partisan position. Politics appears to have forced the electorate to take sides, when in reality, the public’s position on punishment and rehabilitation has been conditional and multidimensional. The public sees things in terms of tradeoffs. Electoral politics and the media have kept the debate at the level of an oversimplified dichotomy.
Summaries of public opinion research (for example, Roberts and Hough 2002) as well as opinion survey after opinion survey (Beldon, Russonello, and Stewart 2001; Doble and Klein 2009; Hart/Open Society Institute 2002; Hartney and Marchionne 2009; Kriesberg and Marchionne 2006; Pew Center on the States 2010; Princeton Survey Research Associates International 2006; Warren 2009b) demonstrate that when provided with relevant information and multiple options, the public does not prefer one size fits all, instead the public prefers multiple sizes depending on the specifics of the situation. Thus, it is essential that public opinion surveys on these issues are designed to provide respondents with more specific information about particular decisions, as well as alternatives, options, and the opportunity to consider tradeoffs when responding.
So what do we know about contemporary public opinion regarding crime, sentencing, punishment, rehabilitation, and public safety? Below is a quick summary compiled from the sources cited in the preceding paragraph.
The majority of Americans believe that a balanced approach to crime reduction is optimal, compared to a punishment-only approach, with most people in favor of alternatives to incarceration for many nonviolent offenders and drug offenders; the majority also favors mandatory treatment for drug addicted, nonviolent offenders, compared to incarceration. Most Americans believe that prison is criminogenic and/or believe that rehabilitation will significantly reduce crime and recidivism, compared to incarceration. Finally, the majority believes sentencing is in need of substantial change—much of the public opposes both mandatory sentences and mandatory minimum sentences, while believing that judges should have the discretion to set sentences, rather than be required to impose mandatory sentences.
The point is not that we should always develop policy around public opinion, but that the appropriate use for public opinion here is as a method to gauge support for particular initiatives and policy recommendations. In this case, there is clear public support for implementing a much more balanced approach to adjudication and sanctioning.
Policymakers and elected officials interested in heading in a new direction regarding criminal justice policy, a direction informed by evaluation research on effectiveness and cost-effectiveness, should take notice of what appears to be considerable public support for smart change. The evidence is here and continues to provide more detail and guidance on the appropriate policy path forward. It is time to change the public discourse on crime and justice, moving away from the rhetoric like “lock ’em up and throw away the key” and “do the crime, do the time” to smart, effective, and less expensive. The public embraces a more balanced approach to public safety. It is time for policymakers, elected officials, and practitioners in the justice system to come to the table as well.
The basics of what statutory changes need to be discussed and implemented are before us. It is neither possible nor desirable to develop a single, precise blueprint for the states and the federal system to follow. States will need to negotiate the specifics themselves, presumably in the general direction of what the evidence indicates is appropriate. In addition, local jurisdictions will also need to work out the particulars within the framework of the statutes that prevail in that state. Different states and different jurisdictions within states will embrace these evidence-based practices and policies with varying fidelity, resourcing, comprehensiveness, expertise, and motivation. This is the reality and it is as it should be, although it may compromise consistency of policy and practice.
Many of the changes proposed here cannot be legislated. Yes, states can change sentencing and release laws, and potentially change criminal justice funding formulas. However, problem solving and collaboration are not particularly amenable to statute. Neither is the idea that recidivism is the collective responsibility of a variety of agencies and individuals. Getting individuals to embrace that concept is challenging, especially when their roles and responsibilities are relatively narrow in scope.
The criminal justice system essentially operates as a series of discrete silos, as a series of handoffs, where there is effectively no one responsible for the big picture of reducing recidivism and enhancing public safety. In oversimplified terms, the police hand off the offenders to the prosecutor, the prosecutors hand offenders off to the judges, the judges hand them off to corrections, corrections often hand them back to the court for revocation, then back to corrections, then when corrections is finished, the cycle typically begins over again. And again. And again. In order for this to work, there needs to be a broad acceptance of responsibility for the big picture of recidivism reduction.
The more social, psychological, and cultural changes are as important as statutory changes, policy and procedure changes, and reallocation of funding. Certainly, laws, policies, and guidelines can stipulate how jobs are to be done, how services are to be delivered, how probation officers and prosecutors are to do their jobs. But those guidelines and policies and laws cannot easily invoke problem solving and collaboration as the concept is intended here. Absent changes in ways of thinking, engaging, collaborating, communicating, sharing information, problem solving, taking initiative, and all of the other more subtle attributes of a radical cultural shift, this endeavor will fail to accomplish what could be achieved.
The challenges are significant. Within a local jurisdiction, there are multiple agencies that are used to operating relatively independently. There is turf and in turn “turf issues.” There are elected officials (typically judges and District Attorneys) who are used to independence and autonomy, but who are also subject to significant political considerations and pressures. There is an existing culture of crime control and punishment that has been ingrained for decades. There are groups with historically competing interests (for example, prosecutors and defense counsel, tough on crime prosecutors and judges, and those advocating and delivering correctional rehabilitation). And there is a general lack of consensus regarding alternatives to accomplishing the mission of the justice system. Add on top of that the fact that there is variation across local jurisdictions (typically counties) within a state in terms of population, demographics, geography, crime rates, priorities, beliefs and attitudes, constraints, resources, caseloads, and assumptions about how to best deal with crime, among many other differences. Then there is variation in all of those factors across states, plus differences in laws and policies.
There is plenty of inertia keeping current policies going forward. Without doubt, there are considerable financial interests focusing on keeping correctional control the centerpiece of U.S. criminal justice. The economies of many smaller, local communities in the United States are heavily dependent on prisons as economic drivers. There are several publicly traded corrections companies in the United States that depend on the size of the criminal justice system. Their presence is no doubt felt in our legislative hallways.
While the challenges are considerable, so are the potential benefits. I am talking about a sea change in how we go about the business of criminal justice in the United States. I am talking about changing how we think about crime and its origins, how we think about behavior change, and how we effectively and cost-effectively spend public resources. We are moving toward removing emotion from the decision-making process and replacing it with rational, research-based practices and principles. This is in effect a culture change in U.S. criminal justice, along with structural, statutory, and funding changes. We are on a path of reducing crime and its consequences, of reducing victimization, and of saving hundreds of billions of dollars in direct criminal justice expenditures, as well as additional hundreds of billions more in the collateral costs of crime, such as economic loss, physical harm and its costs, and social costs like fear.
