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June 27, 2009

Sentencing the focus of inaugural Chapman Journal of Criminal Justice

Thanks to a helpful e-mail, I discovered the new Chapman Journal of Criminal Justice, and also discovered the the new journal's inaugural issue has a series of notable sentencing articles by a bunch of notable authors following up the journal's symposium on evidence-based sentencing last summer.  The full issue is available as a (very long) pdf at this link.

June 27, 2009 at 01:26 PM | Permalink


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This issue is a valuable contribution, and we hope that it is taken seriously. There is a major omission, however, as there is in virtually all compilations of sentencing policy, whether journals, conferences, or other combinations of parties relevant to the field. Where are the corrections people? You're talking about risk assessment and impact and not talking to the people who do this right now and have done so for years? The people who have the data even in the states that don't have commissions (the majority) or have commissions but without the data, expertise, and staffs of PA or VA? Judge Marcus does mention probation and parole staff to his credit, not surprisingly given the substantial thought he has put into it. But where is the full article on what corrections people have already found, can bring to the table, can warn about regarding both outcomes and administration? The logistics of this are incredibly complex for most states that don't start Penn or Virg or Misso, and corrections staff will have to be involved at some point. Why not now? Judge Marcus' state DOC does some of the best research in the country about it, a very good place to start.

One of the major failures of sentencing policy has always been the overemphasis on the very few successful states without considering the failed commissions or the states that have resolutely ignored commissions or model penal codes. Unfortunately perhaps, if evidence-based sentencing does get done in most states, it will have to be through a partnership of courts and corrections departments. We should start there, not with a variation of the old econ joke about "let's imagine we have a sentencing commission."

Another concern. The material does hint at the gaming of this system that will likely occur if anything like this does go into effect beyond the static factors that are available in the basic records. When I mention pre-sentence risk assessment to my colleagues in corrections, their responses are either "no defense attorney would let them provide the information" and/or "every defense attorney will tell them exactly what to say." Which is why the study of evidence-based sentencing should also consider something not discussed here at all. Why haven't "Best Practice" exhortations reached sentencing? What is the evidence for which sentences are effective for particular aggregated offenders (as assessed for corrections purposes, not sentencing)? We have the data now. Why don't we know?

For example, do we have any idea what recidivism rates are for drug possession offenders assessed low-risk? Oklahoma does. Doesn't matter if they get 1 year or 8, the recidivism rates for low-risk drug possessors in that state are virtually the same for any sentence. Which means that, for public safety purposes, future crime is no more likely for a 1-year sentence than for an 8-year. You want to sentence to 8 anyway? Fine, but don't claim you're doing it for public safety purposes; specify what else. The same holds for other offenses examined such as burglary II or larceny.

IOW, don't use assessments just for individual sentences. You could base legislated sentence ranges on the demonstrated, EVIDENCE-BASED outcomes for those offenders, mixing how much you value public safety and how much other goals. This not only will help to avoid the logistical and practitioner opposition to application in individual cases, but it will help to deter attacks resulting from those individual cases that don't bear up to the assessment, that is, the offenders who end up on the front page, the offenders whose failure to live up to their assessment end up killing the whole risk assessment program in the public outrage that follows.

Again, evidence-based sentencing should be our goal. (What does it say really when we are otherwise admitting that our sentencing is based on something else?) But you need the all players at the table, whether sentencing commission conference, sentencing policy journal, or sentencing assessment applications. It's basic implementation theory, well known to public policy/affairs scholars. But that gets us to someone else always invisible in sentencing policy discussions, too, doesn't it?

Posted by: Michael Connelly | Jun 27, 2009 6:13:13 PM

I am a little suspicious of a journal from a school outside the first tier.

Posted by: S.cotus | Jun 27, 2009 7:40:48 PM

Anyone person who has a 'forfeiture by wrongdoing' issue on the horizon should read the last article in the Chapman Journal on the Giles case. This is a very difficult area of law and one fraught with a lot of social/political baggage. The sort of baggage akin to hate-crimes and weapons of mass distruction--Americans can be called upon to go to any length to eliminate them. In other words, where the baby gets thrown out with the bath water. The Confrontation Clause was enshrined in the Constitution to protect the accused from the power of the state to crush the accused. There is a movement afoot to suspend the constitution if the defendant is a bigot, a wife abuser, a crack user, Muslim terrorist (as opposed to Timothy McVey who was a good Christian), child abuser, and the list goes on as far as the imagination of those with good causes under their belts.
This is a good article. But take your blinders off dear readers when anyone wants to make exceptions to the Confrontation Clause albeit ostensibly to protect righteous victims or to punish the unworthy.

Posted by: mpb | Jun 28, 2009 5:48:55 AM

It is those First Tier schools that have the lawyer in utter failure, using garbage, Medieval doctrines that are not only psychotically delusional, but violate the Establishment Clause, coming from a church. I advocate closing all First Tier law schools as a threat to the survival of our lawyer besieged nation.

Posted by: Supremacy Claus | Jun 28, 2009 12:14:54 PM

I would like to see this irremediable problem addressed. The evidence come from studies using parametric statistics, based on the bell shaped curve. These are accurate predictors of rates at the larger population level.

Decisions about individuals have a binomial distribution, like coin tosses from 11th grade statistics. One is not allowed to apply parametric statistics to events with a binomial distribution.

Posted by: Supremacy Claus | Jun 28, 2009 3:24:18 PM

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