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April 15, 2011

Missouri prosecutors pushing to abolish state's sentencing commission and guidelines

This telling and disappointing sentencing reform storyout of Missouri provides further proof that prosecutors are generally fans of sentencing guidelines only when they serve prosecutorial interests (as they do in the federal system) and not when they serve judicial or defense interests (as they apparently do in Missouri).  The story is headlined "Mo. House targets sentencing guidelines," and here are excerpts:

An obscure state agency has worked for years to devise a statistical model that helps judges decide which criminals to send to prison and which ones to place in community programs.  The Missouri Sentencing Advisory Commission trumpets those criminal sentencing guidelines as a way to reserve prison space for the most violent offenders and to use community alternatives when they would best keep an offender from committing new crimes.

But prosecutors have long criticized the guidelines as cookie-cutter justice, and on Thursday, they scored a victory when the Missouri House voted to abolish the commission.

The bill's sponsor, Rep. Stanley Cox, R-Sedalia, said the agency's methodology was flawed and had the effect of promoting an agenda to reduce the prison population.  "The end of this commission will, in fact, remove the inaccurate information that is communicated to our sentencing judges in the state of Missouri, whereby liberal judges are given cover to release from prison or reduce the sentence and give lighter sentences to the worst offenders, second offenders and violent offenders," Cox said.

The House passed the bill on a vote of 100-57.  It now moves to the Senate, which has until May 13, the Legislature's mandatory adjournment, to decide whether to pass it.

The commission's supporters said that its guidelines weren't perfect but that they should be fixed rather than scrapped. The sentencing commission "does a lot of good and makes mistakes," said Rep. Chris Kelly, D-Columbia, chairman of the subcommittee that oversees the budget of the state's prisons.  "It's bad to start throwing out tools" that can help manage the prison population, he said.

At issue is the state's development of "evidence-based" sentencing guidelines, which try to assess a criminal's risk of reoffending as an element in whether to send the person to prison.  Legislators established the commission in 1993 to study sentencing practices, then amended the law in 2003 to ask the group to establish a system for sentencing recommendations.

Since 2005, judges have received reports that suggest a sentence, taking into account information such as the offender's age, work history, education and criminal history.  The judges have discretion in whether to follow the guidelines or ignore them.

Missouri is among about 20 states that have such commissions.  Supporters say sentencing guidelines help achieve consistency and control discrimination.  Opponents say they ignore the circumstances of individual crimes and misrepresent data to arrive at "average" sentences.

The push to get rid of the commission — and the guidelines — comes from the Missouri Association of Prosecuting Attorneys.  Platte County Prosecuting Attorney Eric Zahnd told a House committee that the guidelines had "no scientific foundation" and had resulted in "outrageously lenient sentencing recommendations."...

Jasper County Prosecuting Attorney Dean Dankelson branded the guidelines as unreliable, pointing to a study by Jeff Milyo, a social sciences professor at the University of Missouri. Milyo argued that the guidelines had the potential to mislead judges about the costs and benefits of alternative sentences.  He said the formula ignored the cost to society when a convicted criminal on probation committed another crime.

However, other studies have credited the system with helping keep Missouri's prison population steady at about 30,500 inmates since 2005.  In fact, the House's action came a day after a nonprofit group released a national study that singled out Missouri for "dramatic" progress in reducing the number of repeat offenders.

The percentage of Missouri offenders who returned to prison within two years dropped to 36.4 percent for those released in 2009, down from nearly half of those released in 2004, according to the study by the Pew Center on the States.  The study gave credit to Missouri for mapping out "a meticulous plan for managing all but the most serious violators in the community" and for extensive training of probation and parole officers in how to use the new "risk assessment" tool.

"The fact is, it's being effective," said Mike Wolff, a Missouri Supreme Court judge who is also the longtime chairman of the state's sentencing commission.  "The prosecutors don't like this because they have been traditionally the major if not the only source of information at sentencing time," Wolff said.  "Having statistical information available doesn't particularly suit them."

Critically, as this article notes, the Missouri Sentencing Advisory Commission only produces information and advisory guidance; state sentencing judges have complete discretion to ignore the guidelines if and whenever a prosecutor can effectively argue in any individual case that a sentencing recommendation is too lenient.  But rather than urge prosecutors to work harder toward achieving sentencing justice in each individual case, the Missouri Association of Prosecuting Attorneys seeks to eliminate a source of sentencing information for judges which is produced without a prosecutorial bias.

April 15, 2011 at 09:24 AM | Permalink


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I have been seeing criticism of "liberal" judges all over the place lately. Are "liberal" judges the new "activist" judges? Last month, a man killed a U.S. Marshal in St. Louis when they went to arrest him on a warrant. In every newspaper article comment-section I saw, someone bemoaned the judge who let the shooter, who had a long record of violent crime, out on probation. I suspect this incident, which received lots of media attention (and rightly so), is partly behind the push to reform the state sentencing guidelines. That, and maybe this: http://iowaindependent.com/46519/anti-retention-leaders-iowa-just-the-start-of-gay-marriage-battle

Posted by: Mo def atty | Apr 15, 2011 11:16:30 AM

I've practiced criminal defense law for years in Michigan. First, there were no guidelines, then came advisory guidelines created by a commission and imposed by court order. They were first used in Detroit, then throughout the state. They only applied to some offenses, did not apply to habitual offenders, and departures (read "upward" departures) were "encouraged." Downward departures, of course, would "vioalte the guidelines." These guidelines were developed based largely on typical sentences imposed before the guidelines went into effect. The experience of Detroit, with its large caseloads, skewed the guidelines accordingly. For example, the guidelines for armed robbery were, and remain, far too lenient, in my opinion.
The first advisory guidelines were replaced with a second set, also advisory, covering all offenses, and habitual offenders. Now we have a set of mandatory guidelines, enacted by the legislature, which require the judge in almost all cases to both consider the guidelines, and to impose a sentence within them.
If I had my choice, I'd willingly go back to the no-guidelines era. The guidelines take discretion away from the judge, and give it to the prosecutors. I'll live with the occasional aberrational and irrationally-harsh sentence, in exchange for a chance to persuade a judge to craft a more individualized sentence.

Posted by: Greg Jones | Apr 15, 2011 11:47:10 AM

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