« "Head of Pardons Office Withheld Facts From White House in Key Case" | Main | Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider »

December 18, 2012

Just Sentencing # 5: My sentencing model's structural features and procedures

Richard Frase, guest-blogging on Just Sentencing: Principles and Procedures for a Workable System (Oxford 2012):

In my last guest-blog post I examined existing American sentencing structures and the need for a new model that builds on the best of them.  In this post I’ll summarize the structure and most important procedural features of the model proposed in my book.  That model was inspired by the sentencing guidelines systems in Minnesota, Washington, Oregon, Kansas, and North Carolina.  Most of the features of my model have been implemented and proven workable in those five states (and are also often found in other guidelines states).  My model also proposes modest improvements in these systems to better achieve the limiting-retributive and other principles identified in my earlier post (#3). 

State sentencing guidelines as the structural model. Existing limiting retributive theory needs further specification, in particular: how wide are the sentencing ranges? My model resolves this critical ambiguity by adopting a structure based on the presumptive guidelines found in the five states listed above. In these systems recommended sentencing ranges substantially constrain case-level discretion and its corresponding potential for disparity, while still leaving considerable room (within the range, or by regulated departure) for individualization of the sentence.

A permanent, independent, and adequately-funded sentencing commission. As explained in my previous post (#4), presumptive guidelines implemented and monitored by an independent sentencing commission improve the consistency and rationality of sentencing policy, ensure that such policy is informed by data on sentencing practices, and help to insulate policy from short-term political and media pressures.  Such commissions are especially valuable as a tool of resource management; they help the legislature prioritize the use of expensive correctional resources, prevent prison overcrowding, and avoid piecemeal legislation in response to the latest appeal to raise this penalty or that one.

Required resource- and demographic-impact assessments. Under my model (as in the five states) the resource management tasks noted above are greatly facilitated by assessments of the expected impact of existing and proposed policies on correctional resources.  Such projections are more accurate under presumptive, parole-abolition guidelines because sentencing in such a system is more predictable and the sentencing commission can collect the needed data and develop expertise in making projections.  Demographic-impact assessments likewise work better in such a system; they can be used to reduce, or at least not make worse, racially disparate impacts of sentencing policies.

Legally binding guidelines enforced by active but not overly intrusive appellate review.  Most of the recommended sentences under my model are presumed to be correct in the absence of unusual circumstances, and departures are subject to appellate review to correct errors and develop sentencing law. But the standard of review leaves trial courts with sufficient discretion to take into account particular case facts and tailor the sentence accordingly. In certain cases my model permits judges to vary from guidelines recommendations by stating reasons but without that variance being deemed a departure that would attract closer appellate scrutiny and require compliance with Blakely procedures.

Required statements of reasons for departures, and for some non-departures. A statement of reasons for departure or variance from guidelines recommendations is a feature of almost all guidelines systems, and serves to clarify the trial court’s analysis and facilitate appellate review.

Limited sentence enhancements for prior convictions and multiple current offenses. Repeat offending is deemed an aggravating factor in almost all sentencing systems, but the justification for such enhancements needs clarification and limitation. My model bases prior-record enhancements solely on assumed greater risk, not increased desert, and specifies that such enhancements must operate within substantially non-overlapping offense-severity levels (guidelines grid “rows”), thus increasing current-offense proportionality.  For multiple current offenses there is a presumption against consecutive sentencing and, in case of departure, a further presumption that the total should not exceed twice the maximum presumptive sentence for the most serious offense.  These limitations promote parsimony, reduce disparate impacts on non-white offenders, and lessen the impact of charging discretion.

Frequent use of suspended-execution sentences.  Suspended sentences to prison, jail, or a fine are frequently used in most sentencing systems.  My model encourages such suspensions because they are less costly and harmful to offenders and their families than an executed sentence; at the same time, they have useful expressive value (conveying the degree of seriousness of the offender’s crimes), give offenders a strong incentive to comply with required conditions, and leave substantial room for later tightening of sanctions in case of noncooperation or new evidence of offender risk.

Encouraged intermediate sanctions with maximum but no minimum severity limits.  Most offenders do not need to be sent to state prison, and many will be made more crime-prone if they are, yet risk management or expressive goals (re: offense seriousness) may require sanctions more restrictive than unsupervised probation.  Frequent, offense-proportionate use of community-based punishments is encouraged by: state-paid subsidies to local corrections programs for each offender in specified categories who is kept out of state prison; sanction equivalency scales to validate the punishment value of noncustodial sanctions; and presumptive limits on the aggregate severity of those sanctions.  But, consistent with parsimony, there should be no presumptive minimum-required severity of intermediate sanctions.  Such minimums are rarely found in state guidelines, would further complicate sentencing decisions, and are not likely to be regularly or consistently enforced.

Limits on sentence modifications via revocation or changed conditions of release. In many states revocations of probation and post-prison release account for a high proportion of prison admissions. Sentencing commissions should discourage revocations by developing rules that: 1) place upper limits on the severity of release conditions (making technical violations less likely); 2) encourage a graduated response to violations of conditions, not immediate revocation; 3) specify types of violations that do and don’t ordinarily merit custodial sanctions; and 4) set presumptive upper limits on the severity of such sanctions.

Abolition of parole-release discretion, with supervised release unrelated to good time. In the five presumptive-guidelines states listed earlier, defendants serve the entire prison sentence imposed by the judge, subject only to reductions for good conduct. Parole-release discretion should be rejected for several reasons: time-of-release decisions are often inconsistent and unreliable; parole discretion is not needed to control prison crowding (guidelines permit that to be done on the front end, see above); such discretion lacks transparency, violates victim needs for “truth in sentencing,” and permits administrators to exercise sentencing power instead of judges; and parole discretion makes it harder for legislatures and commissions to accurately predict future prison populations (to set priorities in prison use and avoid overcrowding).  Most offenders released from prison do need a period of parole-like supervised release, but its duration should be based on the severity of the conviction offense, not on the offender’s remaining prison term or earned good-time credits.

Inmate good-conduct credits that are moderate in amount, but reflect program participation. Parole-abolition states generally grant good-conduct credits to maintain prison order and give inmates an incentive to participate in prison programming. The 33 percent credit in my model falls about in the middle of the range of state credit formulas.  But offenders must in any case be granted initial release when they have served 85 percent, with the remaining sentence reserved to sanction release violations.

My last two posts will examine two of the most difficult and important problems of punishment theory and practice: sentencing of offenders with prior and/or multiple current convictions; and racial disproportionality in prison and jail inmate populations.

Prior posts in series so far:

December 18, 2012 at 10:44 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Just Sentencing # 5: My sentencing model's structural features and procedures:


structure and most important procedural features of the model proposed in your book would be great!

Posted by: Kiefer | Dec 19, 2012 1:58:40 AM

There look to be many solidly argued suggestions to improve the future direction of sentencing in your book. I wish it success and influence. Thanks for taking the time here to set out the key features of it.

Posted by: peter | Dec 19, 2012 10:12:01 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB