A new way of sentencing

Oregon Public Empowerment News

In Oregon, where are we now spend more on prisons run by the Department of Corrections than on public four-year universities, what is right in front of our noses is that the way we decide how long criminals should spend in prison is not only bankrupting us in the present moment, it is sowing the seeds of economic inequality and social weakness for generations to come, because excessive spending on incarceration deprives us of public goods that promote prosperity. We are trapped in an arms race against crime where bad policies cause more of the ills we are trying to cure and result in the public providing the funding for both sides of the arms race.....

The criminal justice system in Oregon, as in the rest of United States, runs on pretty much the exact same model as it did at the time of statehood, which is the frontier model – the judge ran the trials and selected the sentences. There was no one else to do it.

But the practices appropriate for a time when government was sparse and crimes were few are not those that are appropriate today.

Today, we have a vast criminal justice system, where the Department of Corrections alone – just a part of the system – plans to spend $1.6 billion in the next two years. And yet the critical decisions that drive all that spending are still made, one by one, in isolation and with no consideration of the overall context. Before sentencing guidelines and mandatory minimums, those decisions were at least made by judges. Now they are made by district attorneys (prosecutors).

Both these two key offices are filled by local elections. Thus, the two key actors, the people who have the most power to who determine what the state will spend on incarceration for decades to comes, not only have no special skill, training, or background in criminal sentencing, they also have zero accountability for the results of their decisions, except in the sense of being subject to popular hostility for a sentence that is seen as excessively lenient.

Thus, the rules for the game – game rather than system because the major key players (prosecutors) and the minor players (judges) have neither the opportunity or incentive to consider anything but the case before them, leads predictably to our present budgetary disaster.

There is nothing wrong with our judges or prosecutors. This is not about them as human beings or as honest public servants. We should not seek nor expect to find a better class of prosecutors or judges. Nor should we expect that there is any way to exhort them or educate them or persuade them to be more thoughtful, better informed, and to have a broader perspective. The title of a famous business magazine article says it best: “On the folly of rewarding A while hoping for B.”

No, the solution isn’t to think that there is some better class of people who would not seek to maximize their own career success by racking up the convictions and doing whatever necessary to avoid the fatal “soft on crime” label. The solution is to move sentencing away from judges entirely, after scrapping entirely the ill-fated project of mandatory minimums that have put so much power in the hands of prosecutors who have no accountability for the costs that they impose on the rest of us.

That is, what Oregon needs to do is make the system into a true system by unifying all the pieces of the process that we loosely call the “criminal justice system” into one budget, and putting felony sentencing into the hands of a state sentencing panel, which would be the body responsible for assessing all the felony inmates as a whole and setting sentences so that the goals of imprisonment are pursued in view of all the sentences to be determined, rather than one-by-one by self-interested actors who have no visibility to anything except the case before them.

The unified global state budget would include all the current prison and prison alternatives, from drug treatment and alcoholism programs, community corrections, reentry programs for those emerging from prison.

The existing system of prosecutors and judges would remain, but they would not decide felony sentences. Rather, when an offender is convicted of a felony, the case would be sent to the state sentencing panel, which would be responsible for setting the terms and conditions of the sentence, in light of not just that individual’s crimes but also in light of all the other offenders to be sentenced that year, as well as the day-by-day forecasts for prison beds for the entire length of the contemplated sentences.

By definition, a felony sentence is for at least a year. Each person would begin serving their felony sentence and, within 12 months, the sentencing panel would set the final sentence. The offender could seek a hearing to argue for sentencing reductions or alternative sentencing, and the crime victims could appear and give testimony about the crimes and their effect on the victims. But the sentencing panel would itself be a third actor, and the staff would be charged with presenting a sentencing proposal that is based on both the severity of the crime in the rankings of all the sentences and an effort to specify a sentence that maximizes the chance for successful re-entry to society after the sentence is served.
 
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