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O J C S Office of Justice Programs F A V M F O I N A C I J S R E BJ G O OJJ DP O F PR National Institute of Justice JUSTICE SENTENCING & CORRECTIONS Issues for the 21st Century September 1999 Papers From the Executive Sessions on Sentencing and Corrections No. 4 Reforming Sentencing and Corrections for Just Punishment and Public Safety Directors’ Message It is by now a commonplace that the number by Michael E. Smith and Walter J. Dickey of people under criminal justice supervision in this country has reached a record high. As entencing courts and corrections agen- safety is and how correctional agencies can a result, the sentencing policies driving that cies are not communicating about what contribute to it. It also requires disciplined number, and the field of corrections, where matters. When imposing sentence, a fact finding and reasoning by sentencing the consequences are felt, have acquired an S unprecedented salience. It is a salience defined judge rarely states clearly the purpose of the courts—an application of the rule of law sentence or the process by which corrections familiar in every area of the law but this one.2 more by issues of magnitude, complexity, and is expected to achieve it. When correctional expense than by any consensus about future directions. agencies are left guessing, they revert to rou- ■ ■ ■ tine administration of the generic penal meas- The nature of public safety Are sentencing policies, as implemented through ures (prison, probation, and parole) and let correctional programs and practices, achieving offenders under supervision in the community revisited their intended purposes? As expressed in the movement to eliminate indeterminate senten- decide who will earn revocation. n the press and in political discourse, cing and limit judicial discretion, on the one “public safety” usually means more arrests, I hand, and to radically restructure our retribu- If courts and correction are to work in har- more illicit drugs seized, more sentences to mony (which our collective interest in justice tive system of justice, on the other, the purpos- incarceration, and fewer reported crimes. es seem contradictory, rooted in conflicting and public safety requires they do), more These definitions have achieved currency values. The lack of consensus on where sen- than incremental investments in generic penal because publicly accountable officials do tencing and corrections should be headed is measures are needed. Major restructuring is know how to arrest and imprison offenders, thus no surprise. called for—restructuring of penal and cor- have built a substantial capacity to do so, and Because sentencing and corrections policies rections law, and restructuring of correctional do know how to count crime complaints. strategies and penal measures.1 have such major consequences—for the allocation of government resources and, more But experience has taught us that rising num- Imaginative sentencing judges and innovative fundamentally and profoundly, for the quality bers of arrests and prisoners are often indica- of justice in this country and the safety of its community corrections professionals have the tors of the absence of public safety. Similarly, citizens—the National Institute of Justice and the practical knowledge necessary to begin that a falling crime rate can be cause for alarm Corrections Program Office (CPO) of the Office restructuring. The transformation will not be when it means only that citizens despair of of Justice Programs felt it opportune to explore easy, as it requires a fresh look at what public them in depth. Through a series of Executive Sessions on Sentencing and Corrections, begun

Research in Brief CONTINUED ... 2 Sentencing & Corrections

Directors’ Message reporting crimes or when fear of crime so public safety change and move in different restricts their activities that they are afraid to directions all the time. CONTINUED ... leave home. It makes no sense to find public safety where the crime rate in an area has But if public safety were defined, as it should in 1998 and continuing through the year 2000, be, by the degree to which people and prop- practitioners and scholars foremost in their fallen to zero, but where teenagers roam erty are free from the threat of harm in par- field, representing a broad cross-section of the parks in a vain search for robbery victims points of view, are being brought together to who are home behind double-locked doors. ticular places and at particular times, publicly find out if there is a better way to think about In other words, threats to public safety cannot accountable officials would face the daunting the purposes, functions, and interdependence be measured by numbers of arrests and pris- prospect of creating the conditions of safety in of sentencing and corrections policies. oners or by aggregate crime data. They are the many places and at the many times in which they do not exist. We suggest that pub- We are fortunate in having secured the assis- local in nature, arising in specific places— lic safety is defined as it is today because tance of Michael Tonry, Sonosky Professor in that park, on this street corner, in this of Law and Public Policy at the University of house—and they often exist at certain times those officials as well as the body politic lack Minnesota Law School, as project director. and not others. confidence in government’s capacity to pro- duce the real thing. One product of the sessions is this series of These features make aggregate crime and papers, commissioned by NIJ and the CPO as justice statistics virtually useless as measures What public safety is the basis for the discussions. Drawing on the of public safety and introduce a level of It turns out to be too easy to say what public research and experience of the session partici- safety is not. What is needed is a rudimentary pants, the papers are intended to distill their complexity to which publicly accountable understanding of what it is: a condition, spe- judgments about the strengths and weaknesses government officials have an understandable of current practices and about the most prom- aversion. They can with some confidence cific to places, in which people and property ising ideas for future developments. promise more arrests, prison cells, and are not at risk of attack or theft and are not prison time for convicted offenders. They perceived to be at risk. Such places would The sessions were modeled on the executive cannot with the same confidence claim to likely share the following characteristics: sessions on policing held in the 1980s and 1990s under the sponsorship of NIJ and understand what makes a certain street cor- ■ A set of generally agreed-upon rules of Harvard’s Kennedy School of Government. ner dangerous or, more to the point, what behavior. Those sessions played a role in conceptualizing might be done to make it safe. The agencies community policing and spreading it. Whether of government know relatively little about how ■ A shared appreciation that rule-breaking the current sessions and the papers based on to make neighborhoods, parks, bus shelters, will be punished. them will be instrumental in developing a new street corners, and bedrooms safe. Nor is ■ A further appreciation that playing by the paradigm for sentencing and corrections, or there a budgetary or bureaucratic reward for rules will be rewarded. even whether they will generate broad-based doing so, in part because such things are not support for a particular model or strategy for measured. For those who administer conven- Viewed this way, creating and maintaining change, remains to be seen. It is our hope that tional correctional agencies and for almost public safety requires teaching the lessons of in the current environment of openness to new everyone else concerned (except those at risk ideas, the session papers will provoke com- responsibility and accountability and reinforc- of crime victimization), defining the public ment, promote further discussion and, taken ing them in raising children, supervising ado- safety problem as “too many offenders, not together, will constitute a basic resource docu- lescents, and producing law-abiding young enough cells” works better. ment on sentencing and corrections policy adults. These are tasks for parents, neighbors, issues that will prove useful to State and local What public safety is not schools, churches, athletic teams, community policymakers. service groups, the labor market, and—on Public safety must be more than an increase what needs to be relatively rare occasions— Jeremy Travis in the number of imprisoned offenders. It Director a local police, probation, or parole officer. cannot be the same as a lower crime rate— National Institute of Justice This is not work that can safely be left to an expression of aggregate data reflecting the U.S. Department of Justice sentencing judges and correctional agencies. volume of complaints about a host of different Larry Meachum It will require imposing penal measures on crimes committed in divergent communities Director convicted offenders but it cannot be achieved where the facts and circumstances affecting Corrections Program Office by that means. U.S. Department of Justice Sentencing & Corrections 3

The community policing safety, the particular places where that offend- imposition of sentences randomly or example er is likely to be found, and the relative plau- deliberately outside a range agreed, This conception of public safety has animated sibility of penal measures available to reduce expressly or implicitly, to be justly community policing. Instead of riding around those risks. In subsequent sections we show deserved and socially necessary pun- in a patrol car waiting for the chance to arrest how, if courts are to impose sentences in ishments. . . . [As] desert is a limiting a bad guy, a police officer does more to cre- accord with rule-of-law principles, the man- principle of punishment, and not a ate safety by finding ways to bring other adults agement of correctional agencies—and defining principle, desert will allow for into a neighborhood’s public spaces, particu- especially community corrections—must the differential treatment of morally larly at times when no officer is there. If a also change. like cases.3 conventionally deployed police officer is the only active representative of adult authority ■ ■ ■ Adding to the complexity are tensions among on the street, there is no adult authority most Sentencing under the rule plausibility of penal purpose, equality of penal of the time. Police officers help to displace burden, and accountability in complying with citizens’ fear of crime with actions that pre- of law obligations imposed by the sentence. These vent it, helping them organize to restore and he plausibility of any penal measure (cur- tensions are most evident when a court maintain a sense of mutual obligation in their Tfew, jail, or drug treatment, for example) imposes a noncustodial sentence or when neighborhoods and seeking their help in as a means to advance a penal strategy (inca- the conditions of parole or other postconfine- devising the most effective patrol deployment pacitation, deterrence, or rehabilitation, for ment supervision are set. They arise because: plans. example) varies with an individual offender’s ■ Different noncustodial penal measures characteristics and circumstances. It at first serve different purposes. From this concept of government’s role in appears difficult to accommodate this fact, generating public safety flow powerful analo- and the individualized sentences it seems to ■ Noncustodial penal measures serving gies for the roles of probation and parole require, within the current normative envi- the public safety purpose do so by varied agents. They could be active in neighbor- ronment, which values equality, proportionali- strategies. hoods where public safety is threatened— ty, and accountability. Each of these values ■ Every sentencing condition increases the locating, invoking, and supporting informal ought to inform, but inevitably complicates, risk of nonperformance by the offender. mechanisms of social control—to contain a court’s case-by-case assessment of the plau- the risks posed by people who are under cor- sibility of particular penal measures. ■ Nonperformance of a sentence condition rectional supervision (and by those who are damages either the offenders (if they are not). This seems ambitious only because we If the value of equality requires that “like punished for violating the condition) or have grown accustomed to passive supervi- cases be treated alike,” and if, as is common- accountability (if they are not punished), sion—waiting to see which offenders will ly assumed, gravity of offense and prior and in either case poses a risk to public safety violate probation or parole—which is nicely record are the only facts relevant to the (if the condition was reasonably required for analogous to random motor patrol by the “likeness” of cases, then a proposal to tailor public safety). police. sentences to any other characteristics of offenders and the circumstances of the offens- To help guide the courts in selecting penal For correctional agencies to advance public es would be an affront to equality. But prior purpose, penal strategies, and penal meas- safety in carrying out sentences, and for record and gravity of offense, although rele- ures that fit the facts as they vary from case judges to take proper account of public vant at sentencing, are hardly sufficient to to case, three principles can be advanced: safety when imposing them, restructuring define a category of offenders who are “alike” specificity, clarity, and parsimony.4 the sentencing process is required, along in culpability or in the threat they pose to with revising the deployment of corrections public safety. Similarly, “like treatment” ought Specificity. Is the purpose public safety or resources. In the first section below, we pro- not mean “the same sentence.” Norval Morris just deserts? Specifying the purpose of each pose a restructuring of sentencing based on put it best: sentence element is essential to its effective rule-of-law principles. We demonstrate that implementation. For example, a 7 p.m. these principles require a judge to base a The task [is] to reduce disparity in sen- curfew may be a condition of probation or sentence on findings of fact about the specific tencing, not to achieve equality—and parole. The enforcement of this condition risks an individual offender poses to public by disparity in sentencing I mean the and the consequences of violating it ought 4 Sentencing & Corrections

to be shaped by the answer to the question, Thus, it would be wise to specify deserved ■ Electronically monitored house arrest can “Was the curfew imposed because the restric- punishment as the purpose of sentencing be used for deterrence and retribution but is tion on the offender’s liberty is deserved pun- petty thieves who possess these characteris- most plausibly connected to the public safety ishment or because his unsupervised liberty tics, as that purpose can be achieved within purpose by its partially incapacitating effects. after 7 p.m. puts citizens or their property the constraint of just deserts. at risk?” Absent clarity by the sentencing court about Current law does not require resolving con- the penal purpose of a sentence and its strate- Even more important is specificity about flicts between just desert and public safety as gic relationship to public safety, correctional penal strategy. An example is the sentencing the proper or plausible purpose of a sentence agents who carry out the sentence must sim- of persistent petty thieves. In a court where a for persistent petty theft or, for that matter, for ply guess what to do. This makes it less likely prison sentence of a year, for example, is rou- any other crime. Nor does it require that a that cases seen as “alike” by the court will tine for such cases, the year will be imposed court assess the relative in one case by a judge who believes it will plausibility of the quite absent clarity by the court about the dissuade other thieves, in a second case by a different penal strategies by penal purpose of a sentence and its rela- judge who hopes it will dissuade this particu- which theft sentences, for tionship to public safety, correctional lar thief, in a third case by a judge who is example, might advance agents who carry out the sentence must concerned only with punishing theft because the public’s interest in simply guess what to do. theft is bad, and in a fourth case by a judge reducing thievery. But who is content to put a dent in thievery by resolving the conflicts of incapacitating for a year someone known to purpose and selecting plausible strategies are receive like treatment—indeed, less likely have committed theft on a regular basis. It is not possible unless sentencing courts apply that the penal strategy the court had in mind unlikely that the choices of these judges are the principle of specificity. will be pursued, and less likely that either equally plausible in each petty theft case in purpose (public safety, deserved punishment) which the 1-year sentences are imposed. Clarity. Clarity about penal purpose and strat- will be achieved. egy might seem to matter little when confine- This 1-year custodial sentence probably can- ment to prison is the only penal measure Parsimony. There is a major pitfall for those not serve both penal purposes and all penal about which we are concerned. But clarity who construct, advocate, or carry out noncus- strategies in every case. But we believe no about purpose permits reasoned resolution todial sentences. By promising to accomplish noncustodial sentence could do so. That is of conflicts between just desert and public more than would be required if the court’s because of the many combinations of charac- safety, and lack of clarity about penal strategy purposes were clear and if the court specified teristics and circumstances thieves bring to aborts inquiry into the relative plausibility of the penal strategy by which it expects to sentencing. For example, a generic noncusto- each penal measure available to the court. advance public safety in a particular case, dial sentence that aims to end a thief’s thiev- This is because courts must select from an they risk accomplishing nothing. The danger ery by incapacitation, by deterrence, and by array or continuum of penal sanctions, each of this happening is most evident when a rehabilitation too would become unjustly of which serves some but not all purposes. defense attorney or sentence planner, attempt- burdensome and excessively costly in every For example: ing to improve the odds that a judge will case in which it was imposed. Ensuring the impose a noncustodial sentence, recom- rehabilitation of homeless, addicted, persist- ■ Community service, a form of involuntary mends adding multiple conditions, justifying ent petty thieves would strain the purse and servitude, can serve retributive and deterrent them by reference to every permissible sen- patience of anyone attempting it, as would purposes but is not well designed to incapaci- tencing purpose and strategy without regard ensuring their incapacitation in the communi- tate or rehabilitate. to the plausibility of each element of the sen- ty until the risk they will commit more thefts ■ Compulsory drug treatment can have puni- tence or to the offender’s ability to comply. has passed. If deserved punishment is a tive weight and rehabilitative value, depending If the court placed on record its purpose constraint—if it is immoral to impose more on the offender and the regimen but, depend- and strategies, the reasons a purpose urged punishment than an offender deserves—the ing on the regimen, might or might not have by an advocate is not desirable or achievable, accumulating penal burdens of this sentence, incapacitative value. though noncustodial, would have to end long and the reasons a proposed strategy or penal before its strategic objective were achieved. measure is implausible or excessive in the Sentencing & Corrections 5

particular case, there would be benefits Such application of the rule of law would able alternatives.” This requirement calls in beyond the case. Such documentation is specify how, at the trial court, the purpose turn for factfinding and reasonable inferences necessary because excess in selecting penal of the sentence in a particular case is to be about how well the penal strategy and penal strategies and in imposing sentence condi- determined, and how the facts relevant to measures employed suit the facts of the par- tions sets offenders up for failure, whether choosing the type and amount of sanction ticular case and offender. or not public safety is advanced thereby. are to be distinguished from facts that are Conversely, parsimony in selecting penal irrelevant. Such application would specify the Perhaps the core deficiency of presumptive strategies and penal measures helps preserve process by which the relevant facts are to be guidelines is that they encourage judges to accountability while making it more likely that found and how strong the inferences drawn avoid this underlying complexity. In examin- the court’s penal purposes will be achieved. from them must be for a sentence based on ing this complexity, we use noncustodial them to be lawful. The rule of law would set penal measures for illustration, because in What does the rule of law the standard of review applicable when this most jurisdictions a sentence to prison is require at sentencing? factfinding or reasoning is alleged not to satis- imposed in only about half of all felony cases It has been more than a quarter of a century fy these requirements. While promulgation (and is, even in those cases, almost always since Judge Marvin Frankel’s indictment of and enforcement of rules—even the rules followed by a period of noncustodial supervi- unfettered sentencing discretion precipitated embedded in guideline grids—is “law” of a sion) and because any effort to bring consis- the continuing search for ways to bring sen- kind, the “rule of law” is something more. tency and reason to the use of noncustodial tencing decisions within the rule of law.5 measures immediately brings the complexity Almost as strong as Judge Frankel’s passion What has been lost by using presumptive to the surface. for the rule of law was his doubt that judges guidelines? Presumptive guideline grids or legislators would resolve either the have sometimes altered sentencing practices Noncustodial penal measures are of many “questions of justification and purpose” that and the distribution of punishments, have types, can be combined in almost infinite vari- surround imposition of penal measures or reduced the appearance of sentencing dispar- ation, and cannot be reduced to “duration” the questions about their efficacy that plague ity (as conventionally defined), have in some or another single measure of penal burden. their execution. But the movement toward jurisdictions made prison population projec- Extending the reach of guideline grid systems presumptive sentencing guidelines that his tions more reliable and (at least theoretically) to encompass such sentences has proved dif- book inspired was not inevitable. Although more sensitive to resource constraints, and ficult and may have reached a dead end. This he called for “a detailed chart or calculus to have in a few jurisdictions generated a body is because noncustodial penal measures can- be used by the sentencing judge in weighing of useful appellate case law. Nevertheless, we not serve the purposes for which they are the many elements that go into the sentence,” think the decisional rules embedded in most imposed unless they are tailored to the varied he also wrote of the need to apply to sentenc- of them fall short of rule-of-law requirements. nonlinear characteristics and circumstances ing decisions the factfinding and reasoning of individual offenders. The challenge is to processes on which the rule of law ordinarily Using presumptive guideline grids to structure determine how “tailoring” sanctions can be relies when complexity and competing inter- sentencing exaggerates the importance of governed by the rule of law and not left to the ests require the exercise of discretion. current offense and prior record—facts unfettered (and perhaps biased) discretion of made relevant, to the near exclusion of oth- judges. If that challenge could be met, there Judges and others tend to view the numbers ers, by their placement along the two axes would be no reason not to rely on those prin- arrayed in guideline grids as end points of a of the grids. Rule-of-law sentencing would ciples and procedures in imposing custodial decisionmaking process rather than as start- structure the factfinding by which a sentenc- sentences as well. ing points. Is the rule of law observed when ing court determines which circumstances two facts suffice to locate an offender in a of the case are relevant, and the reasoning by What is gained by reasoning from penal grid of prescribed sentences? We think not. which it selects the penal strategy (e.g., deter- purpose to sentence by inference from The rule of law requires that a court first rence, incapacitation, rehabilitation) and the facts and circumstances in each case? determine what facts are relevant in light of particular penal measures that most plausibly At the most general level, the rule of law by the purpose for which a penal sanction is advance public safety in light of those facts. which sentences should be imposed may be being imposed and then, by inference from The rule of law requires that, for any sen- stated as follows: those facts, reason to the type and amount tence, the strategy linking penal purpose to of penal measure. the penal measures imposed be at least plau- Decisions about the types and amount sible—maybe “more plausible than the avail- of penal measures to impose should be 6 Sentencing & Corrections

reached, at a specified degree of confi- invoke only penal measures that are actually (d) just desert is the only permissible pur- dence, through a publicly explained available. This type of factual inquiry would pose when the court finds no strategy and reviewable application of a legal assign prosecution and defense a function for plausible for advancing public safety standard, to facts found to a specified which they are (or should be) well prepared. through imposition of any penal meas- degree of subjective certainty by fair In addition, factfinding of this kind is espe- ures authorized for the offense. inference from reliable evidence— cially suitable to appellate or other review. with the specifications, the legal stan- On review, the sufficiency of evidence on 2. The court shall impose the sentence it finds dard, and the burden of persuasion which a sentencing court makes its findings more likely to advance the specified penal established by lawful authority other of fact, and the strength of the inferences purpose(s) than the alternatives. than the decisionmaker. drawn from them that lead it to the sentence This procedure may appear burdensome if imposed, can be tested against a prescribed weighed against the requirements of sentenc- This statement is admittedly abstract, but it is legal standard. ing hearings in indeterminate sentencing not unknown in criminal court, where a guilty systems today, or even in the most exacting verdict is lawful only if the factfinder is confi- How would rule-of-law presumptive guideline systems. However, the dent beyond a reasonable doubt, in light of sentencing work? law in this country requires this sort of rigor- all relevant evidence, that the facts required To ease the task of illustrating how the rule ous factfinding as a matter of course in other by statutory definition of the crime have been of law could be applied to sentencing, and fields, where often much less is at stake. proved. why it would be worth applying, we assume Moreover, although some facts will vary great- a jurisdiction in which public safety and just ly from offender to offender, many will not, It would be paralyzing to require a court to punishment are by statute the only permissi- thus limiting the factfinding burden. find beyond a reasonable doubt that the sen- ble purposes of sentences. On the basis of tence imposed in a given case will advance its these assumptions, rule-of-law sentencing The procedure should be guided by a new specified penal purpose, but the rule of law might be structured this way: style of sentencing commission, one that requires this level of confidence only for deci- reviews evidence bearing on commonly aris- sions about guilt. A burden of persuasion bet- 1. When imposing sentence— ing questions of fact, further narrowing the ter suited to the sentencing decision might be (a) the court shall specify the following: the original factfinding required in individual that the sentence imposed is “more likely to primary purpose (just desert or public cases. Such a commission could, for example, advance the penal purpose than alternatives safety), the facts relevant to its finding make findings about the circumstances in available to the court.” But rule-of-law princi- of desert, the penal strategy or strategies which one penal strategy might generally be ples are slighted if there is no burden of per- by which it finds public safety would be preferred over another for particular types of suasion on this question; that is, if it were advanced by its sentence, the penal cases or for a particular purpose (for exam- lawful for a court to impose a sentence it measures by which it expects the sen- ple, deterrence over incapacitation or rehabil- believes, on the basis of known evidence, is tence to serve that strategy, the facts itation over incapacitation for public safety; not likely to advance the penal purpose. This upon which it finds the sentence more prison over fine or community service over is far too often the case today, most obviously likely to advance the purposes of desert prison for just punishment). when an addicted offender is sentenced to and public safety than alternatives known prison for drug treatment even though the to it, and the facts justifying any exchange Similarly, a new style of sentencing commis- court has good reason to doubt that a treat- of desert for public safety; sion could guide sentencing courts in making ment slot will be available. findings about the punishment a particular (b) the court shall consider public safety the offender deserves. Just desert is notoriously It would indeed be possible to ground primary penal purpose, although just difficult to “find.” It cannot properly be speci- sentencing decisions in the kind of factual desert should be an element of and a fied by a legislature or commission that is inquiry that criminal courts are designed to constraint upon every sentence; unfamiliar with the case-specific facts and cir- conduct. That could happen if courts’ sen- (c) public safety trumps desert when the cumstances bearing on an offender’s culpabil- tencing power were exercised with case- court finds the magnitude of deserved ity, but we should be concerned that, without by-case attention to the plausibility of the sen- punishment would interfere with the guidance, sentencing judges will “find” just tence as a means to achieve just punishment most plausible penal strategy for advanc- desert by personal and essentially unreview- and public safety, and if care were taken to ing public safety; but able hunch. A court’s findings about the range Sentencing & Corrections 7

of just punishment in a particular case should is imposed in cases in which the purpose inant purpose, it is hard to imagine findings be tied to norms and values widely shared in and the strategy are congruent with the penal more important for the sentencing court to the body politic, not to those of judges, legis- measures. For example, when community make—or findings more useful to correc- lators, or the media. The sentencing commis- service sentences are imposed on individuals tional agencies charged with carrying out sion envisioned here would undertake sys- whose liberty poses immediate unacceptable the sentences. tematic inquiry of the general population, to threats to public safety, those sentences may find the range of punishments widely thought indeed punish but will before long come into ■ ■ ■ to be deserved in archetypal offense/offender disrepute for their failure to incapacitate. What would be required of scenarios and to discover how the public’s When home confinement, curfews, and other view is affected by knowing that particular surveillance techniques are imposed too corrections under rule-of-law penal measures tied to the public safety pur- widely on offenders whose unsupervised sentencing? pose are available to the sentencing court. behavior is not viewed as particularly risky or sentencing to be governed by the rule On the basis of such inquiries, ranges of “not but whose offenses deserve to be punished, F of law in the way proposed here, judges undeserved” punishments could be provided the conditions are not likely to be rigorously must be offered a richer array of penal meas- to the courts as starting points from which enforced. Again, the noncustodial penal ures—noncustodial ones in particular—that to reason to sentences. measure is likely to fall into disrepute for its are plausible for advancing public safety, and apparent inability to accomplish the penal judges must be confident that corrections will What would rule-of-law purpose that would justify its imposition. sentencing orders look like? execute them properly. For this to happen will require a shift in the mission of correctional The rule of law would require that sentencing A rule-of-law sentencing order would reflect agencies and new approaches to deploying orders link a limited set of conditions im- the principle of parsimony—parsimony in and managing their resources. posed on an offender to the lawful purpose the number of penal strategies and measures. or purposes specified. Multiple-conditioned, It would also reflect consideration of public Enlarging the corrections all-purpose sentences undermine the devel- safety risks that require management while mission opment of operational capacity in community the sentence is carried out. When a noncusto- Corrections has long focused on individuals— correctional agencies. Correctional agents dial penal measure is imposed or a prison using authority and force in the routine busi- flounder when they try to deliver everything to sentence reaches its postconfinement phase, ness of punishing and treating them. Thus, we a court that did not make clear what it wanted the offender’s conditioned liberty may or may are unaccustomed to thinking about other or how it expected the penal measures not put victim, family, or community at risk ways public safety might be served by the imposed to produce the intended effect. Such of harm. An essential task for sentencing considerable and increasing resources of sentences also undermine accountability courts (and for correctional staff responsible corrections departments. But once public because violations of nonessential conditions for implementing noncustodial sentences and safety is understood as a condition of particu- often either go unpunished or are punished the noncustodial phases of prison sentences) lar places at particular times, rather than as without good reason. They undermine cost is to specify the risks the sentence is intended an exercise of correctional authority over effectiveness because staff who supervise an to contain. They should ask how serious the some number of individuals, it is difficult to offender burdened with such a sentence potential harm is, how likely the offender is imagine an agency of the executive branch either must waste resources on interventions to cause harm in the absence of penal inter- achieving it by confinement or “correction” and enforcement not tied to a penal purpose vention, and how perfectly the correctional of sentenced offenders or by “sending mes- or not based on a plausible strategy, or they intervention must contain the harm. sages” to the not-yet convicted. must guess which, if any, conditions of the sentence should be treated seriously. The answers can be found only by inference Collaboration with naturally occurring properly drawn from the individual character- guardians. What might be more plausible Sentences to community service, drug or istics and circumstances of an offender the ways to use the authority and resources of alcohol treatment, home detention, and other circumstances surrounding his or her condi- correctional agencies? Routine activity analy- noncustodial penal measures serve sentenc- tioned liberty, the purposes of the sentencing sis and crime pattern theory explain crime ing purposes of desert or public safety (or, court, the penal strategy the court adopted, as the result of a confluence of factors: a in some cases, both) through plausible penal and the correctional resources available to motivated offender, a vulnerable target, and strategies. But this is true only if the sentence manage the risk. When public safety is a dom- a place and time when guardians are absent 8 Sentencing & Corrections

or ineffective. “Guardians” in this usage are The Need To Restructure Corrections—Evidence From a people who have a protective relationship to Milwaukee Neighborhood a potential victim, people who are responsible for or are willing to assume responsibility A new framework for managing correctional apparently ignorant of their respective clients’ for a targeted place, and people who have resources emerged from the Wisconsin connections to the same location. an intimate or supervising relationship with Governor’s Task Force on Sentencing and the potential offender. Such guardians are Corrections, following hearings convened in Deployment for public safety abundant in safe places. But they can also be 1996 in a Milwaukee neighborhood where pub- To the task force, a correctional agency aiming found in dangerous places. The most effective lic safety was in serious disrepair.* Community to advance public safety at 9th and Concordia police, probation, and parole officers know representatives were clear that crimes in their would have to know the ecology of the threats how to find them and enlist their help. community should not go unpunished, although to safety peculiar to that place and would have they were also clear that sentences were unde- to deploy personnel and services in response, This is the line of thought that has led to servedly harsh in drug possession cases, and rather than focusing on one returning offender they bemoaned the lack of attention paid, in at a time. The task force noticed that if only one the more complex and more intensely local prison and upon release, to the obvious mental drug felon were arrested each week, and if only engagements that characterize problem- health and substance abuse problems of mem- 80 percent were convicted and drew the 2-year oriented community policing. For more than bers of their community sent there for correc- prison sentence (with parole after 12 months), a decade, police have been learning to collab- tion. But most of all, they did not believe that Wisconsin would have in effect allocated 40 orate with “naturally occurring” guardians to routine operation of the criminal justice system prison beds and 8 correctional officers to the solve crime and disorder problems. Probation would affect the public safety problems they felt problem at that location. If, instead, the and parole officers—“official guardians”— most acutely. Department of Corrections had hired and need also to find and invoke the authority of deployed eight probation or parole officers The problem at 9th to 9th and Concordia, it could have had one naturally occurring guardians of the offenders and Concordia there 24 hours a day, 7 days a week and, within under their supervision, of the people made A police officer detailed the conditions, as he the same budget allocation, could have had vulnerable by proximity to them, and of knew them, on one street corner. At 9th and another pair working on projects to advance places where the resulting risks arise. Concordia, he reported, 94 drug arrests were public safety in the area. made within a 3-month period earlier in the The theoretical framework for restructuring year. These arrests, he pointed out, were easy to In other words, the task force realized that cor- corrections, set out here, emphasizes the prosecute to conviction. But despite the 2-year rections personnel could be deployed to the power of naturally occurring forces in the place where public safety is at risk—to prison terms routinely handed down by the sen- community to create and maintain public enforce sentence conditions of unpaid labor tencing judges, the drug market continued to safety and invites corrections to form relation- thrive at the intersection, posing risks to the safe- (for example, with community groups who ships with them. The framework emerged ty of all who lived nearby or had to pass through were restoring abandoned houses nearby), on their way to work or school. to ensure active rather than passive supervision from the authors’ work on the 1996 of the offenders there, to block their slide back Wisconsin Governor’s Task Force on That the removal to prison of almost 100 felons into the anonymity that fosters crime, and to Sentencing and Corrections.6 (See “The Need did not increase public safety at that street help them find and keep jobs. Meanwhile, To Restructure Corrections—Evidence From corner revealed the disconnect between public the $3,500 per inmate that Wisconsin spends a Milwaukee Neighborhood.”) safety and corrections. It surfaced the need for annually on the nutritional, health, and other further inquiry into the nature of the problem at basic needs of each offender in prison could Of course, correctional resources are for have been spent on making habitable the afflict- that location and into the deployment of correc- the most part tethered to individual offenders tions resources devoted to it. Informal inquiries ed neighborhood from which they came—and by the sentences imposed, and correctional after the hearing revealed that those arrested for to which, if imprisoned, they are sure to return. drug offenses at the corner returned, typically agencies have no license to trade their statu- after serving about 12 months of the 2-year * Wisconsin Governor’s Task Force on tory, offender-centered responsibilities for sentences, to “supervision” of the most passive Sentencing and Corrections, Final Report, place-based ones. But they can learn from kind by parole agents to whom they were Madison, WI: University of Wisconsin Law the experiences of police departments that assigned randomly, who did not coordinate School, 1996; reprinted in Overcrowded have moved beyond reactive patrol, and their supervision plans, and who were Times 7 (6) (1996): 5–17. beyond trying to arrest more bad guys each year, toward partnership with community Sentencing & Corrections 9

to produce and maintain public safety. ■ “Active supervision” requires that offenders ridden. Active supervision requires familiarity Correctional agencies can also learn from who pose a risk to public safety not be allowed with the operation of those forces in the lives scattered, low-visibility attempts to adapt anonymity—not in the community and not in of offenders and others who live and work some of the problem-solving techniques of prison. Anonymity enables them to conceal where correctional agents have public safety effective community police officers to neigh- themselves from naturally occurring agents responsibilities. borhood supervision of offenders.7 of social control as well as from correctional agents. correctional agencies committed to the Principles for managing corrections for Active supervision is the public safety purpose of sentencing need public safety. From observation of various broad engagement of cor- to be more active in supervising offenders police and corrections operations whose rectional staff with offend- and will have to seek more intensive design reflects analysis of the public safety ers in whatever setting they engagement with the communities where the offenders are found. threats arising in particular places, we draw are found, as well as with a half dozen principles to guide correctional police; other members of agencies embracing a public safety mission: offenders’ communities; and offenders’ fami- Allocating corrections resources lies, neighbors, employers, friends, and ene- More than clarity is required. The nature of ■ The nature and degree of supervision of an mies. This type of supervision necessitates public safety also demands that any correc- offender should be directly related to the risk reorganization and a new management style tional agency hoping to promote it will need of harm he or she poses if unsupervised. In for correctional agencies, enabling them to build new capacity, from the bottom up, other words, correctional measures should to replicate in large communities, where and will need to construct new systems to be tailored to the gravity of the potential harm anonymity is more the norm, the active super- manage that capacity and the flow of informa- and to the likelihood of its occurring without vision and neighborhood orientation more tion it requires. That is because information those measures. Thus, for example, correc- often found in small communities. from the local level will be required for tions should not devote the same kind or monitoring and revising deployment plans at ■ Active supervision also requires creative quantity of resources to a petty thief (even individual agent, regional, and State levels— program development in correctional agen- though the likelihood of another theft is high) and this information should be expected to cies. Here the aim should be for every offend- as devoted to the opportunistic burglar change rapidly. (whose chance of committing another offense er who poses a risk warranting supervision may be lower but whose potential for harm in the community to have a stable housing The experience of police agencies that are is greater). situation; to be in the labor market; and to grappling with the demands of problem- be bound to a supportive network of family oriented approaches makes it evident that ■ The graver the potential harm and the and neighbors, when possible, or to others victim vulnerability and public safety assets more likely it is to occur if nothing is done recruited to that role by correctional agents and deficits vary greatly from place to place. to reduce the risk, the more active must be the in the community. These requirements repre- This necessitates planning and overseeing a supervision when the offender is not in prison. sent major challenges to conventional prac- State’s responses to variations in its correc- The nature of supervision should change as tice because most correctional agencies have tions investments—variations more complex, the risk to public safety the offender presents not developed the capacity, for example, to changeable, and subtle than “caseload” or changes over time. create jobs and job placement services where “offender needs.” The process ought to be ■ Alacrity, flexibility, and parsimony should they are lacking. grounded in information, gathered systemati- characterize responses to changes in the risks ■ Finally, while correctional agencies commit- cally and periodically, about the particular to public safety posed by offenders under ted to the public safety purpose of sentencing public safety threats and the naturally occur- supervision. For corrections staff in prisons need to be more active in supervising offend- ring community capacities to contain them as well as in the community, both legal ers and will have to seek more intensive found, neighborhood by neighborhood, authority and resources need to be config- engagement with the communities where the throughout a State. ured to permit them to tailor correctional offenders are found, it is important that these measures to changes in offenders’ circum- agencies not adopt strategies and programs We know of no correctional agency that has stances. Proper management of staff in exer- that conflict with the naturally occurring such capacity today. But rule-of-law sentenc- cising such discretionary power must also be forces of social control that can be found in ing would call for judges to be provided active and not rely on procedural formalism. every neighborhood, even the most crime- information of this kind, and it is needed by 10 Sentencing & Corrections

Risks to Public Safety Identified in a Milwaukee mate, by location, how many prison cells and Neighborhood by Correctional Agents how much local confinement capacity would be needed; how many community supervision Homicide Assault Sex Offense Drug Offense agents would be needed; and what drug treat- “Crime of passion” Violence by intimates Child victim Chemical dependency ment slots, jobs, and housing would have to Incidental/accidental Violence by strangers Situational Street-level sales be made available. Premeditated Armed (gun) Adult victim Major dealers The focus groups revealed differences by Burglary Public Order Offense Fraud Theft locality in the distribution of offenders’ crimi- nal propensities and of the circumstances in Opportunistic Alcohol or other drug abuse Impulsive Theft which they posed risks to public safety. They Lifestyle/thrill Troublemaker Monetary gain Embezzlement Armed (gun) Mentally disabled Predatory Robbery also revealed differences in community assets and correctional assets locally available to contain those risks. The result was a task corrections to support locally oriented alloca- fears were specific to the places where they force plan reflecting what best practices tion of resources (for example, prison cells, lived, the places where they worked, the would require in allocating State corrections treatment slots, transitional housing, various places they visited, and the places they avoid- resources for public safety. types of community supervision officers, job ed for safety’s sake. We then developed a computer application in training, and drug treatment programs). Categories of risks and “best practices” which information of the kind provided by the Probing for specification of public safety for managing them. To find out what might focus groups was combined with data rou- problems. In pursuing this issue for the be done to manage place-specific public safe- tinely gathered on related topics. This was Wisconsin Governor’s Task Force on ty risks in Wisconsin, we first set out to cate- done so that the task force and Wisconsin’s Sentencing and Corrections, we wanted to gorize them in a way that would lend itself to Department of Corrections could see how a find out whether different communities would finding best practices for dealing with them. “bottom-up” public safety strategy might be nominate different public safety problems as However, no routinely gathered data were constructed and implemented and how varia- warranting attention. It was clear to us, and available to categorize the kinds and degrees tions on that strategy would affect the demand to the judges and other officials with whom of risk to public safety posed by the 32,000 for and deployment of correctional resources. we worked, that a corrections department felony offenders under probation and parole Legal authority for restructuring correc- ought not conduct a public opinion survey supervision in Wisconsin in 1996. Nor were tions. Flexibility in corrections’ response of how many prison cells are needed or what such data available for the 11,000 felony to change in individual offenders’ circum- sentence should be imposed on a particular offenders then in prison or the 6,000 expect- stances—necessary if public safety is the pur- offender about to come before the court. It ed to be released to parole over the following pose—is incompatible with the core idea of was just as clear, however, that without sys- 5 years. In the absence of these data, we determinate sentencing: that the specifics of tematic inquiry, the State’s policymaking appa- relied on focus group sessions conducted a sentence should be determined by the court ratus was in no position to specify the nature among experienced probation and parole at the time sentence is imposed. Of course, and patterns of public safety threats in differ- staff to define behavioral categories of risk more than half the States are still properly ent parts of the State, and that without such and to estimate the number of offenders in characterized as having indeterminate sen- inquiry policymakers would remain ignorant each category, in locations throughout the tencing systems, and the flexibility public safe- about what, in the view of those closest to the State. From this information, a typology of ty requires can be achieved in at least some threats, might be done to reduce them. public safety risks was developed (see the determinate systems. In any event, sentences exhibit). In the time available to the task force, it was with public safety purposes, whether determi- possible only to conduct a survey to test the For each of the 24 categories of risk in the nate or indeterminate as to duration, need to proposition that perceptions of public safety typology, the focus groups sketched what be indeterminate as to content. threats vary from one location to another would be required by “best practices” if It was with an eye to achieving the necessary throughout the State. Variation was indeed public safety were the correctional objective. flexibility that the Wisconsin Governor’s Task what the pollsters found. Survey respondents’ Their work permitted the task force to esti- Force asked how State law would have to be Sentencing & Corrections 11

amended to support “best practice” in cor- safety would be advanced by fundamental Corrections, by Leena Kurki (NCJ 175723). All: rections management of public safety risks. amendments in the mission and methods of Research in Brief—Sentencing & Corrections: It recommended abolishing felony probation a correctional agency. We went into detail to Issues for the 21st Century, Washington, DC: U.S. Department of Justice, National Institute of and creating a new form of confinement, demonstrate that it is possible to specify the Justice/Corrections Program Office, September one merging features of prisons with varying redeployment of authority and resources 1999. degrees of liberty and obligations of the required for such a change. If we are correct 3. Morris, Norval, Madness and the Criminal offender in the community. This new penal about the public safety benefits of redeploying Law, Chicago: University of Chicago Press, 1982: measure, “Community Confinement and correctional resources this way, there is little 196. Control” (CCC), was designed to ensure sub- reason not to get on with it. Rule-of-law sen- 4. Smith, Michael E., “Let Specificity, Clarity and stantially more supervision and control of tencing would surely ease such a transforma- Parsimony of Purpose Be Our Guide,” Law and behavior, and also substantially more treat- tion but is not essential. On the other hand, Policy 20 (4) (October 1998). ment, employment, and other socialization rule-of-law sentencing would be a sham if a 5. Frankel, Marvin E., Criminal Sentences: Law programs than conventional probation and robust array of penal measures were not put Without Order, New York: Hill & Wang, 1972. even “intensive” probation ever had—but for at the disposal of the courts, or if sentencing shorter periods. And because the task force judges were not provided accurate informa- 6. Walter Dickey was the chair and Michael Smith the research director of the Wisconsin Governor’s recognized that parole supervision often tion about what penal measures are actually Task Force on Sentencing and Corrections. approaches unsupervised liberty, it felt that no available and what effects they can reasonably felony offender sentenced to prison should be be expected to have. In practice, however, 7. Smith, Michael E., and Walter J. Dickey, “What If Corrections Were Serious About Public Safety?” granted parole without successfully complet- adoption of rule-of-law sentencing by the Corrections Management Quarterly 2 (3) ing some period in CCC status. It followed that courts would create irresistible demand for (Summer 1998): 12–30. offenders sentenced to CCC would be paroled corrections to respond with place-sensitive from it, just as those sentenced to prison would redeployment of resources. In the same way, be paroled from CCC after serving at least a guideline grids would likely give way to rule- brief time in that status on their way out. of-law sentencing if correctional practice were reformed along the lines described here. Michael E. Smith is a professor of law at the There was remarkably little objection, from University of Wisconsin, Madison. Walter J. Dickey is Evjue-Bascom Professor of Law at the University any quarter, to the proposed abolition of Notes of Wisconsin, Madison. Both are members of the felony probation and to the use of CCC when 1. For a discussion of the current debate among Executive Sessions on Sentencing and Corrections. purposeful supervision in the community is community corrections practitioners about This study was supported by cooperative agreement required. The desire to do away with felony their mission and methods, see Dickey, Walter J., 97–MUMU–K006 between the National Institute of probation stemmed from a nearly universal and Michael E. Smith, Dangerous Opportunity: Justice and the University of Minnesota. lack of confidence in it and from a sense Five Futures for Community Corrections, Findings and conclusions of the research reported that offenders convicted of felonies in Washington, DC: U.S. Department of Justice, Office of Justice Programs, 1999; and here are those of the authors and do not necessarily Wisconsin either present, at the start of their Joan Petersilia, ed., Community Corrections: reflect the official position or policies of the U.S. sentence, risks too serious for conventional Probation, Parole, and Intermediate Sanctions, Department of Justice. probation or require very little supervision New York: Oxford University Press, 1998. at all (because all that is intended is that they The National Institute of Justice is a component 2. This paper is one of four in the first “round” of the Office of Justice Programs, which also fulfill a particular condition). For the latter of publications from the Executive Sessions on includes the Bureau of Justice Assistance, the class of cases, the task force recommended Sentencing and Corrections. Together the four Bureau of Justice Statistics, the Office of Juvenile a new sentence, “conditional supervision,” offer a framework for understanding the issues Justice and Delinquency Prevention, and the which would require almost no supervisory raised in the sessions. The other three papers are Office for Victims of Crime. resources unless the condition(s) were not met. Fragmentation of Sentencing and Corrections in America, by Michael Tonry (NCJ 175721); This and other NIJ publications can be found Reconsidering Indeterminate and Structured at and downloaded from the NIJ Web site Where does this all lead? Sentencing, by Michael Tonry (NCJ 175722); (http://www.ojp.usdoj.gov/nij). Using the State of Wisconsin as an example, and Incorporating Restorative and Community NCJ 175724 we have sketched, in some detail, how public Justice Into American Sentencing and 12 Sentencing & Corrections

The Executive Sessions on Sentencing and Corrections Convened the following distinguished panel of leaders in the fields:

Ronald Angelone John Gorczyk Dennis Maloney Thomas W. Ross Director Commissioner Director Superior Court Judge, Department of Corrections Department of Corrections Deschutes County (Oregon) 18th Judicial District Commonwealth of Virginia State of Vermont Department of Community Justice Chair, North Carolina Sentencing and Policy Advisory Commission Neal Bryant Kathleen Hawk Sawyer Larry Meachum Senator Director Director Dora Schriro Oregon State Senate Federal Bureau of Prisons Corrections Program Office Director U.S. Department of Justice Office of Justice Programs Department of Corrections Harold Clarke U.S. Department of Justice State of Missouri Director Sally T. Hillsman Department of Correctional Services Deputy Director Mark H. Moore Michael Smith State of Nevada National Institute of Justice Guggenheim Professor of Criminal Professor of Law U.S. Department of Justice Justice Policy and Management University of Wisconsin Cheryl Crawford John F. Kennedy School of Government Deputy Director, Program Martin Horn Harvard University Michael Sullivan Development Division Secretary Secretary National Institute of Justice Department of Corrections Norval Morris Department of Corrections U.S. Department of Justice Commonwealth of Pennsylvania Emeritus Professor of Law and State of Wisconsin Criminology Barbara Damchik-Dykes Susan M. Hunter University of Chicago Morris Thigpen Project Coordinator Chief, Prisons Division Director Executive Sessions on Sentencing National Institute of Corrections Joan Petersilia National Institute of Corrections and Corrections U.S. Department of Justice Professor of Criminology, U.S. Department of Justice Law and Society Walter Dickey Michael Jacobson School of Social Ecology Michael Tonry Evjue-Bascom Professor of Law Professor of Law and Police Science University of California, Irvine Sonosky Professor of University of Wisconsin John Jay College of Criminal Justice Law and Public Policy City University of New York Kay Pranis University of Minnesota Ronald Earle Restorative Justice Planner Project Director District Attorney Leena Kurki Department of Corrections Executive Sessions on Sentencing Austin, Texas Research Associate State of Minnesota and Corrections Law School Tony Fabelo University of Minnesota Michael Quinlan Jeremy Travis Director Project Associate Former Director Director Texas Criminal Justice Policy Council Executive Sessions on Sentencing and Federal Bureau of Prisons National Institute of Justice Corrections U.S. Department of Justice U.S. Department of Justice Richard S. Gebelein Superior Court Judge John Larivee Chase Riveland Reginald A. Wilkinson Wilmington, Delaware Chief Executive Officer Principal Director Crime and Justice Foundation Riveland Associates Department of Rehabilitation and Correction Joe Lehman State of Ohio Secretary Department of Corrections State of Washington

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