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August 5, 2007

Off to the NASC conference with fitting reading

Today has been spent getting myself together to head to Oklahoma for the 2007 Conference of the National Association of Sentencing Commissions. Details about this great conference can be found at this link.  On my way out my office door, I saw and was able to print out a new article on SSRN that will make for interesting and perhaps fitting reading while in transit.  The piece is entitled "An Informational Approach to the Mass Imprisonment Problem," by Adam Gershowitz and here is the abstract:

The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500 percent in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America's jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board.  For instance, a prosecutor who typically offers a first-time drug offender a twenty-month sentence might instead agree to an eighteen-month plea bargain if she were aware that prisons were overcrowded and incarceration rates were on the rise.  A rich body of social psychology literature supports the view that informing prosecutors about mass imprisonment might cause them to offer lower sentences. Legislatures have an incentive to enact such a proposal because a reduction in incarceration would reduce the already huge and escalating costs of criminal corrections. At the same time, because legislatures would simply be instructing that prosecutors be advised of the scale of imprisonment, and not specifically advocating lower sentences, there would be no danger of legislators appearing "soft on crime."

August 5, 2007 at 07:11 PM | Permalink


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Tracked on Aug 6, 2007 11:21:18 AM


I suppose it is possible there are prosecutors and judges who are not aware that the prisons are crowded but I have never met one. What bothers me is that people will pick out one aspect of prison crowding (such as the average length of sentence) and claim that altering that will solve the problem of prison crowding.

If fact your have to look at both admission and release processes. Admission processes are
1) New court commitments.
2) Work release and shock probation returns.
3) Probation and parole revocations.

Release processes are
1) Expiration of sentence.
2) Transfers to work release.
3) Transfers from prison to probation (shock probation).
4) Release on parole.

In my state (Iowa) admissions are half new court commitments and half returns. Felony charges
over the past nine years range from 27,000 to 31,000 with an average of 29,000 with perhaps a slight downward trend so new court commitments are essentially constant and the returns are primarily responsible for prison growth. I think the Board of Parole and the Dept. of Corrections are using the best available risk assessment instruments so I think it would be difficult to improve the selection of persons placed on parole, shock probation and work release. We don't have the funds for reentry, treatment and supervision we need to keep these people from returning in such large numbers (four to five a day).

In theory the legislature could change the rules and reduce the restrictions on parole eligibility which would increase the release rate. If the pressure gets high enough (Where are we going to find the funds to increase the size of our prisons?) it could happen. They could also increase the good time credit which would probably accomplish more than informing prosecutors about prison crowding.

I agree with the ABA policy about the overuse of incarceration (should be reserved for persons who are threats to public safety or habitual offenders) but I wish we had general agreement on what is meant by "threat to public safety", "habitual offender" and "nonviolent offender".

Posted by: JSN | Aug 5, 2007 8:58:11 PM

JSN, I am in Iowa also and I see a lot (as well as know) people that go back for probation violations. They try to send them to handover houses and they escape from them. I know some that go back for drug charges over and over again. They do need to define habitual offenders, violent and non-violent offender, and a threat to public safety. But until the legislation is sure what is ment by these terms themselves, how are they going to inform us?

Posted by: jubria | Aug 6, 2007 12:19:05 AM

I too find it unlikely that prosecutors are unaware of prison crowding conditions. They are probably more aware of it than almost anybody.

In any case, the proposed solution is pretty silly. If we believe that we are locking up too many people, the problem should be fixed in broad daylight, by Congress and the state legislatures. We don't need a back-door solution that depends on politically-appointed bureaucrats making different case-by-case judgments than they make today.

Posted by: Marc Shepherd | Aug 6, 2007 11:24:06 AM

Just how a politically-appointed bureaucrat different than a politically elected legislator, or a politically-appointed (or elected) judge?

Strangely, the sentences examples for 1st-time drug offender seem way too high in my experience (at least for simple possession).

Posted by: S.cotus | Aug 6, 2007 12:12:26 PM

Just how [is] a politically-appointed bureaucrat different than a politically elected legislator, or a politically-appointed (or elected) judge?

There are lots of differences. Legislators have to put their votes on the public record, but most charging and plea decisions happen behind closed doors, and are never disclosed.

Federal judges, of course, are appointed for life, and are insulated from direct pressure to act politically. Even elected judges are supposed to be impartial arbiters (at least in theory), whereas prosecutors are advocates, and like any lawyer, not usually inclined to help the other side.

Strangely, the sentences examples for 1st-time drug offender seem way too high in my experience (at least for simple possession).

Prosecutors often say that where there is a stiff sentence for simple possession, there is usually a plea bargain where more serious charges were dropped. Because of the high trial penalty, defendants usually feel that they have to accept such a deal if it is offered.

Posted by: Marc Shepherd | Aug 6, 2007 12:50:57 PM

Well... If thet equalized crack cocaine and made it retroactive, think of all that space would free up. Just a thought.

Posted by: Mythea Lacy | Aug 6, 2007 5:13:27 PM

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