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Corrections should take the lead in changing sentencing practices.

Editor's note: The following is the keynote address ACA President Perry M. Johnson delivered at the conference Jan. 11. Members are encouraged to submit letters to the editor to Corrections Today in response.

ACA's members come from many backgrounds. But we have one thing in common: We all deal in one way or another with people serving criminal sentences or juvenile commitments. And most of us have spent too much of our time lately dealing with one issue--the avalanche of people serving these sentences.

It is no longer news that in the past 20 years the prison population has quadrupled. It is so much "not news," that I am afraid we are beginning to take it for granted. We seem to accept it as inevitable. Hundreds more prisons are planned or being built, and we are resigned to it, like an act of God, that must be endured and lived with.

Well, we can live with it, but should we? The case I want to make is that we should not, and must not.

Now it is not that we, as an association, have been blind to what is going on. We have examined prison crowding from every direction, and sought out responses to it everywhere--from alternatives to prison to building prisons faster than has ever been done before. But what I am afraid we have not done is questioned or challenged, in any fundamental way, the policies that caused that crowding.

Put another way, we have long accepted the responsibility for dealing with offenders sentenced under criminal law. But we have focused on the individuals and said little about the law or the sentences.

Some explain this by saying these are matters for courts and legislators to decide. Ultimately that is true. But we, better than anyone else, directly see and understand the real effects of criminal sanctions. We know what these sanctions cost in human and economic terms, and we see firsthand when they fail and when they succeed. If we do not apply our collective wisdom to the shaping of public policy, no one will do it for us.

For these reasons, at a strategic planning retreat last September, your Executive Committee, ACA staff and key committee chairpersons concluded that corrections is a voice long overdue in the sentencing debate. They concluded that the public good demands we take part. It is our duty.

The planning committee also concluded that criticism alone would serve little purpose; we must be prepared to suggest positive and constructive solutions. Such solutions must be more than the conclusions of an individual or committee or task force--they must represent the will of the membership.

For that reason, sentencing issues for juveniles and adults will be a major focus of the Association for the next two years. Sentencing will be the theme of the Summer Congress. My intent here is only to suggest a way of proceeding on this matter--to lay a foundation for the work ahead. In the final analysis, it is you who must decide what will be said by corrections about this issue, which so vitally affects everything we do.

Now in an association as diverse as ours, getting consensus on what needs fixing and what the solutions should be will not be an easy task. It may seem, at first, impossible.

But I don't think it is. I believe almost everyone here would agree on at least four criteria for criminal sanctions, and most would also agree that current systems of sentencing do not meet these aims.

Four Essential Criteria

First, a sound sentencing policy must be fair and just--it must be impartial and carry sanctions proportionate to the harm done. Second, it must be based on a rational strategy to reduce crime. Third, it must not diminish respect for the law. And last, it should do what it can to make crime victims whole again.

Let's consider each of these criteria briefly to see if we might also agree that most criminal codes and sentencing practices fall far short of these aims:

First, the issue of making sure sentences are fair and just. Most of us working in the field have seen unfair and unjust sentences. Studies have consistently found that people receive very different punishments for similar crimes as judges apply their subjective opinions. And there is another increasingly prevalent inequity--when the same punishment is meted out for very different crimes. This is an inevitable outcome of mandatory sentences for groups of offenses.

An incident many years ago impressed on me just how unfair sentencing can be. I was duty deputy at Jackson Prison in Michigan when we accepted the after-hour delivery of four young black men---each with a life sentence for robbery. I authorized the after-hour procedure because the sheriff wanted them out of his jail. He was fearful of civil unrest from the black community in response to the sentencing. And that community had a legitimate grievance. The crimes were routine robberies of three gas stations--no shooting or physical abuse was involved. Serious crimes, to be sure, but ones for which five-year prison terms would have been typical. These young men were given life for one reason: They drew the wrong judge. A judge who, I might add, always justified his harsh sentences with the claim, "that's what the people want."

Of course, that is but one incident. But it is not rare. An elaborate sentencing study conducted by the Michigan Supreme Court, which covered more than 7,000 sentencing decisions, found little correlation between the factors judges claimed to use and their actual sentences. What factors were significantly related? Age, race and gender.

The injustice of using race or gender to determine the amount of punishment is self-evident. Much of what appears to be differential punishment can be explained by differential involvement in crime, but by no means all of it. And we are not just talking about race of offenders here. Studies have shown that the race of the victim may be an even greater factor, with crimes against whites receiving greater punishment than crimes against others. Clearly this denies equal justice to minority crime victims.

Because of the importance and complexity of this issue, ACA has appointed a Justice in Sentencing Task Force to study it more fully. The task force's findings may well suggest safeguards that need to be included in our final sentencing proposal.

Aside from unjust sentencing, many criminal codes have irrational punishments built in. In Michigan, for example, you can get more time for writing a bad check than you can for torturing your child. The banks obviously have better lobbies than children do. Because of the crazy-quilt pattern of sentencing in the 50 states, generalization is difficult, but these kinds of problems are almost universal.

The same thing is true when we turn to the second criteria--that sentences should be rationally related to crime reduction. States vary widely, but in almost all of them, the "get tough" policy now prevails as a means of crime control. This has been implemented on several fronts--through changes in the criminal laws and in the practices of prosecutors, judges and paroling authorities. All these changes are aimed at keeping more people in prison longer to reduce crime.

I suspect some of you believe our crowding crisis comes from these tougher policies--and others think this get-tough language is mostly talk, and that prison growth has been a natural result of a crime epidemic.

In fact, the truth is somewhere in between. Crime did increase dramatically during the 1960s and '70s, and together with the aging of the baby-boomers, that added more adult convictions. We'd have had some prison growth even if nothing else had changed, but only about one-third of the tidal wave that swamped our prisons in the '80s and '90s. Two-thirds of the increase was solely a result of tougher sentencing policies and practices--policies that have so far cost the taxpayers $16 billion for prison construction and $6 billion in operating costs every year from here, apparently, to eternity.

Is it money well-spent? If getting tough takes a "big bite out of crime," as many have claimed, then we are out of line to question it. So let's see if we have taken that big bite. We do have a lot more prisoners. Do we have a lot less crime?

Unfortunately, we don't. The demographics of the general population, not the size of the prison population, appear to explain most of the ebb and flow of serious crime, and especially of the violent crimes we are most concerned about. As we all know, young males commit most of the crime. As their numbers increased in the '70s and declined in the '80s, so did serious crime--by almost the same proportion.

Any doubt about this should be put to rest by taking a look at what happened in one case when a sudden change was made in the use of imprisonment. That example comes from my own state of Michigan. During the first half of the 1980s, Michigan was a leader in taking extreme measures to avoid prison expansion. Thousands of prisoners were released early. And then during the next five years Michigan led the nation in its rate of prison population growth.

So that succession of extreme policies should tell us what getting tough is worth. And what did we find out? There wasn't much change in criminal activity when prisoners were being let out early, but by the end of the building boom--when Michigan had locked up two-and-a-half times as many people as it had six years earlier--it had the highest violent crime rate in its history.

Yet, despite all the evidence showing that the get-tough policy hasn't worked in cutting crime, there are people in high places who still claim that we just haven't been tough enough. Well, let's take a look at that. Let's see what would happen if we were to take the lock 'em up policy to an even more ridiculous extreme than we already have.

Let's be real hard-liners for a moment. Let's make it our policy for this year that every last felon we can convict in this country will go to prison, and nobody is going to get out. For the whole year the prison gates will swing only inward--no probation, no parole, no halfway houses, nothing but hard time. That should be tough enough to satisfy everyone. Now what would the results of that policy be? The good thing is we don't have to actually do this to find out; recent parole and probation follow-up studies by the Bureau of Justice Statistics allow us to estimate just what such a policy would accomplish.

The first thing it would accomplish would be to double our nation's prison population in just one year. I'm not sure how many billions of dollars that would cost, but I know we don't have them. Yet it might be worth finding them if it would really solve the crime problem. But the sad fact is that the reduction in serious crimes for the year can be soundly estimated to be less than 15 percent. Clearly this is a little bang for a lot of bucks. Locking up ever more people is just not the answer.

Please note that I'm not claiming prisons have no value for crime control. Anyone who has worked in a secure prison knows better. We have all known dangerous or incorrigible inmates who would do unlimited harm if set free. And prison or jail is often the only effective "hammer" to enforce compliance with non-prison sanctions.

But folks, we've always locked up serious or persistent offenders. I remember seeing them 40 years ago, and a few of you go back even further. All these recent policies have done is expand the net to less serious offenders, and as a result we have added little to crime control but a lot to the tax burden. Any business operating that way would be bankrupt in a hurry.

In other words, a lot of what we do to reduce crime is far off the mark. And not always because sentences are too severe. We also see sentences that are far too lenient to do any good. But that brings me to our third criteria--that sentences should not diminish respect for the law.

For years this Association and many of us here today have advocated community corrections as an alternative to excessive reliance on imprisonment. We have touted everything from traditional probation and parole to assorted programs under the rubric of "intermediate sanctions."

Unfortunately, what we call a community sanction is often no more than benign neglect. Offenders are given freedom without responsibility, sanctions without accountability. It's not that we don't know how to insist on responsible behavior and hold people accountable--we have pilot projects galore to prove that we can do it--but the fact is that we just don't do it. Sometimes for lack of will, but most often for lack of resources.

The community corrections problem is not as visible as prison crowding, but it is even more immense. As you know, two of every three felons under sentence in the United States is on probation or parole. Most get little supervision because of caseloads that average more than 100 and sometimes exceed 200. Less than 5 percent are under intensive supervision or electronic monitoring.

The Bureau of Justice Statistics, studying this matter, found that many probationers completed their sentences without complying with special conditions or paying their financial penalties. Clearly the criteria that sentences not diminish respect for the law is not being met. How can we possibly expect the average citizen to believe that such community programs are a reasonable alternative to confinement?

As to the final criteria--that sentences attempt to make victims whole--well, the opportunity to recover restitution is frequently cited as a benefit of probation. Yet restitution is ordered in less than a third of the cases and then only half is collected. Victims get nothing at all when the offender goes to prison; the victim today truly is the neglected party in the sentencing process.

I think most of you would agree that the problems I've listed are serious. It is less easy to see how they can be solved. That will be the difficult task. I would like to suggest one way to get a leg up on the problem and offer suggestions about general features I think any rational sentencing model should have.

Where We Start

I suggest we start by asking the public what criminal sanctions ought to be. We need carefully designed surveys to gather informed public opinion. These would be individual state surveys patterned after the BJS's highly regarded Crime Victimization Surveys. Specially trained interviewers would interview representative population samples.

Respondents would first be asked to rank the nine or 10 major crime categories in order of seriousness. We would then have them set what might be called "anchor points" for sentencing by recommending the appropriate punishments for the average offense committed by the average offender in each of these major crime categories. This would be done, however, only after giving them objective factual information about these crimes and offenders, as well as about sentencing options available and the respective costs of each.

Why do this, you may ask, and can we live with the results? The why may be apparent: Once we have the survey results, we would have an answer to those who say harsh punishment is what the public wants. I am convinced that given good information about both the costs and effects of sanctions, a multicultural cross-section of the American people will opt for penalties far more reasonable than many now in place around the country.

How would such results be used? You can't define a criminal code with a survey, and our legislatures aren't up to doing it. They have too many competing demands and are pressured too much by the "crime of the week" syndrome--when some particularly heinous act leads to harsh penalties for all crimes in the same legal category.

It seems to me that the kind of sentencing guidelines commission pioneered in Minnesota and adopted elsewhere in one form or another is the best answer. Such commissions can devote the time and study necessary to develop the whole array of sanctions needed in a criminal code, and they can do it to meet the criteria we have talked about here. Certainly this is a better way to go than using the broadbrush legislative approach or leaving matters to the idiosyncrasies of a multitude of judges.

I am suggesting that the guidelines commission take the survey anchor points and then develop penalties that would range higher and lower according to aggravating and mitigating circumstances. Representing public opinion in this way should insulate criminal penalties from the capricious changes now justified by misconceptions of what the public wants.

That is all I have to say about sentencing problems and how we might get at them by starting with public opinion. But there is one issue left hanging here--the nature of the non-prison sanctions that would be applied.

The Nature Of Sanctions

If everything I have just called for was in place and we had our public-opinion based guidelines, we still wouldn't have a basis for community sanctions. As I commented earlier, most community sanctions have amounted to an evasion of real punishment, at least when compared with incarceration, and the public and everyone in law enforcement knows it.

Now I don't have to belabor this point as I might have had to a few years ago. The concept of intermediate sanctions has become familiar through the works of Norval Morris, Michael Tonry and others. Some good programs are now in place.

But let me first make it clear what I am not talking about here: Programs for self-help, such as school and trade training, or drug treatment and counseling, are essential parts of what we do, and they need to remain so. But we should not call them sanctions because they are not. They won't satisfy the courts or the public as penalties that can really take the place of jail or prison.

What would? We need to make scores for sentencing guidelines fit community programs as well as incarceration. I don't mean just guidelines to say who gets to go into community programs, but guidelines that make sure criminal penalties in those programs are about as stringent as incarceration would have been. Only then can we expect the courts to use community programs in every case where prison isn't really needed.

In other words, we need what Norval Morris and others have called an "exchange rate" for punishment, which applies to sanctions in and out of prison. Now, the only medium I can think of for doing that is time. Think about this: One reason prison is punitive is that it takes time out of people's lives. But that can be done in the community too. If guidelines call for a year of punishment, then a year of unpaid work, a fine equal to one year of income, or a year of house arrest, may do the job. Such fines or unpaid work may be spread out over more than a year so a family can still be supported. Because community sanctions now rarely approach these levels, judges are forced to send some to prison solely to avoid justified criticisms of leniency.

For this concept to work, real public work must be completed, fines fully paid and curfews honored. To do that, more resources for community corrections are required and probation and parole caseloads must be reduced to workable levels. But when policy makers see that non-prison sanctions involve real penalties, they may be willing to support community programs as strongly as they have the building of prisons.

Further, such a system of community alternatives should not only reduce the numbers going to prison--it will allow correctional facilities to concentrate on those people who will continue to need incarceration under any system. I think these offenders clearly fall into three groups: First, those who are too dangerous to be kept under any form of community supervision. Second, those whose crimes are so serious that sanctions cannot be carried out in a reasonable term of community supervision. And, finally, those who refuse to comply with non-prison sanctions.

Obviously there is much work to be done here. And I know there are those who still will say that sentencing is none of corrections' business--that it is "Ours not to reason why, ours but to do or die." But my friends, sentencing defines the very nature of our work.

To the extent that sentences are unjust, we who must carry them out become agents of injustice. To the extent that sentences are irrational, we will lack purpose and reason in what we do. Developing a system that says to every convicted criminal, "you will be punished in a just and reasonable manner without bias," and then proves it, is hardly soft on crime. And if we combine that with real opportunity for positive change--for self improvement--the public will be well served.
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Title Annotation:Miami; American Correctional Association President Perry M. Johnson's speech
Author:Johnson, Perry M.
Publication:Corrections Today
Article Type:Transcript
Date:Apr 1, 1993
Previous Article:Corrections Professionals focus on today's hot topics.
Next Article:Moving toward 'politics of the community.' (speech by Florida Lt. Gov. Buddy MacKay) (Miami)

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