The right ideas for smart sentencing

Missouri Supreme Court Judge Michael Wolff and Oregon Supreme Court Chief Justice Paul De Muniz’s scathing judgment published last week indicted neither a criminal defendant nor a witless attorney. Rather, the duo directed their rebuke to current criminal sentencing practices. In a letter
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to President-elect Barack Obama and his transition team, the two judges asserted that federal and state sentencing guidelines “have nothing whatever to do with public safety” and gravely misallocate prison resources.

Guilty as charged. Our prison system’s overcrowded facilities, soaring costs, high racial disparity and two-thirds recidivism rate certainly warrant the concern that Judges Wolff and De Muniz express. And their proposed reforms target the heart of the crisis we face: harsh sentencing guidelines that rely too much on incarceration as a tool for crime reduction and mandatory minimum laws that eliminate all reasonable discretion from the sentencing process. In the interest of justice and public welfare, Obama & Co. must heed their calls for change.

Our current sentencing practices have made us the world’s leading incarcerator. Between 1970 and 2000, our prison population grew by 500 percent. The Pew Center on the States informs us that now 1 out of every 100 Americans lives behind bars. For black men in their 20s, this figure is one in nine. Our system’s fiscal cost is billions. And the social cost of ripping apart families and communities through incarceration is immeasurable. According to scholars, this gluttony for incarceration has had only a limited and inconsistent impact on reduced crime. Our prisons are failing to deliver the safety promised.

Rejecting sentencing guidelines outright is not the answer – we must have fairness and a measure of predictability in criminal sentencing. But, say Wolff and De Muniz, we should ensure that our sentencing practices actually accomplish the objectives of protecting public safety and promoting respect for public values.

The principles for reform that Wolff and De Muniz outline in their letter are simple yet powerful. Their first principle states, “Punishment should be no harsher than warranted.” Sentences must be based on the culpability of the offender and the harm inflicted. Sentencing guidelines and mandatory minimums laws that rather base sentences solely on a dollar amount or drug weight are hardly just and fill our prisons with people who pose minimal threat to society. Warehousing these people, at the cost of roughly $20,000 per year per prisoner, makes about as much sense as building a bridge to nowhere.

The letter additionally encourages basing criminal sentences on sound evidence. Evidence demonstrates that alternatives to incarceration often prevent recidivism far more effectively than imprisonment for most low and moderate risk offenders. A whole host of these programs, such as drug courts and mental health courts, have well-documented ability to help transform offenders into law-abiding citizens by addressing the underlying factors that contribute to their criminal behaviors. Giving offenders alternatives to incarceration empowers them with alternatives to crime. This means safer communities, fewer victims and far less financial strain on corrections budgets. The U.S. Sentencing Commission recently reported it is considering including alternatives to incarceration in its guidelines during the current amendment period. This is precisely the smart approach we need.

But for alternative sentencing to work, we must understand offenders’ risk level and their specific needs. That’s why Wolff and De Muniz principles also call for incorporating risk and needs assessment into sentencing practices. Doing so will preserve prison space for the offenders who truly endanger us rather than clogging the system with those who would be best managed through shorter sentences, treatment programs or intensive community supervision.

Virginia provides an excellent example of infusing risk assessment into sentencing systems, as Wolff and De Muniz mention. Offenders in Virginia with lower risk scores are recommended for alternative sentences rather than incarceration. Risk assessment has been part of Virginia’s sentencing guidelines since 2002 after the National Center for State Courts studied a pilot project and found the assessment tool correctly identified low-risk offenders, produced considerable savings by diverting them from prison, and did so without endangering the public. Such a model should be implemented nationwide.

Wolff and De Muniz’s evaluation of our sentencing practices and recommended reforms are exactly what we need to hear in an age when being “tough on crime” rather than smart on crime is still in vogue. Our families, communities and taxpayers suffer under our failed system. Allowing solid evidence rather than sensationalism and paranoia to determine our responses to crime produces a sentencing system that delivers justice and safety.

Karen Williams is a writer and researcher in the criminal justice policy department of Prison Fellowship. She has been published on Prison Fellowship’s website, blog and online magazine and on Common Conservative.