Time for Skepticism or Optimism?
by: Jessbarton • December 23, 2010 • no comments
The state Criminal Justice Commission recently issued its first ever newsletter. If you haven't already seen it, I strongly recommend it.
From my perspective, the best part is executive director Craig Prins's column, discussing the Public Safety Commission the Governor recently created by executive order. CJC Chairman (and retired Lane County judge) Darryl Larson will direct the new commission. His commission has assumed the task of creating "a modern system of uniform, transparent, and proportional sentencing guideline practices that optimizes use of the most expensive resource-prison."
I really like the two terms emphasized above. Judges are now and always have been inconsistent in imposing sentences for similar defendants (similar in terms of current crimes and criminal records). During the pre-guidelines era this inconsistency was tolerable. The Parole Board saw prison sentences from around the state. It had the authority, and it regularly exercised its authority, to normalize sentences by adjusting them downward (so not by increasing sentences above what the court imposed).
Under our guidelines era determinate sentencing systems, the board can't do that. As a result, the prisons are loaded with similar defendants serving wildly inconsistent sentences. That inconsistency is a form of disproportionality.
I'm skeptically optimistic that the Larson Commission will take steps toward achieving proportionality by proposing sentencing-law changes that would minimize these inconsistencies. For example, the commission could recommend enhancing Parole Board authority for the limited purpose of normalizing sentences on a statewide basis (which normalizing never could involve increasing sentences above what the court imposed).
Another possibility is for the commission to recommend the adoption of an Ohio-type sentencing system. That type of system requires access to a statewide sentencing database that attorneys and judges access, to find similar cases on which to base the sentences they recommend and impose.
By law this can be done now. But because there's no readily accessible statewide database, attorneys have to create their own. For example, several years ago Eugene attorney Hugh Duvall, with the assistance of former CJC staff, developed and used a statewide database with great success. (The prosecutor initially was recommending 20 years. But after reviewing Duvall's database, the court imposed a far more rational two-year sentence.) Presently, Portland attorney Whitney Boise, with the assistance of state Department of Corrections staff, has developed a database for one of his cases in an effort to get his client a similarly rational sentence.
In both cases the database-development effort was or is very time consuming-and expensive. Few defendants could afford it. I also doubt that this ad hoc database development is something that OPDS would want to fund-at least not on a regular basis (even though ad hoc database development would be "cost effective" in that the savings to the state on imprisonment costs would greatly exceed the database-development costs).
Ideally, in its effort to achieve a more consistent (proportionate) sentencing statewide, the Larson Commission will recommend developing a statewide sentencing database for use by attorneys and judges. It would be easy to prove the cost effectiveness of that database, so the legislature just might fund it.
I also like the commission's assumption of the task of "optimiz[ing] use of . . . prison." "Optimize" doesn't mean "maximize." It means "make the most efficient use."
The idea seems to be to look for ways to increase prison terms for violent offenders. I hope that means habitual violent offenders-as opposed to persons whose violent behavior is completely out of character and arose from some unusual situation, and who pose little or no risk of recidivating.
Increasing prison terms for habitual violent offenders would require reducing or even eliminating the prison terms of no- or low-risk-of-recidivism violent offenders. It definitely would require reducing or eliminating the prison terms of non-violent offenders, such as drug-crime offenders.
Reducing or eliminating the prison terms for drug-crime offenders would have the added benefit of reducing the shockingly high rate that young, African-American males are consigned to prison. Over time this reduction would reduce the current, appalling statistic that in Oregon an African-American is 500% more likely to be living in prison than is a Caucasian (and to answer the expected rejoinder from the prison-industrial complex, in Oregon an African-American is not 500% more likely to be a crime victim than is a Caucasian). See [Brief Amicus Curiae Pacific Sentencing Initiative] filed in State v. Royce Francis Speedis, Supreme Court No. S058310.
All in all I'd have to say that the Governor's formation of Judge Larson's new commission is a positive step. I'm skeptically optimistic that the commission will generate some significant and rational modifications in sentencing policy.
