Sentencing Presentations on line, on CD, and on DVD
Shots, Tech Notes & User Manual
and Recent Developments
Judicial, and Criminal Justice Commission Materials (& PSDW)
on Smart Sentencing
Coverage & Reviews
Argument Guide (requires
Model Penal Code Issue Page
Sentencing for Public Safety
and Harm Reduction
last updated Jan 22,2011
typos fixed thanks to sharp
eye of Eric Dahlin
I was an Oregon trial
judge [retired after 20 years] determined to aim the sentencing process at crime reduction through
evidence-based sentencing. Of course, during a decisional phase,
judges must rely on evidence offered by the parties and their advocates.
But at dispositional hearings deciding among sentences, prison or jail,
terms of probation, and the like, our often archaic approach produces
high recidivism rates, enormous waste
and avoidable victimizations. Most offenders sentenced for most crimes
offend again; most offenders sentenced for serious, violent crime have
been sentenced before with no responsible attempt to prevent future crimes
by that offender.
Judges have a wide range
of discretion in many sentencing and probation violation hearings, but
- until we developed sentencing support tools - no information about which
choices are most likely to prevent further criminal behavior by the offender.
A good part of academia, and much of the corrections community, continue
to research best practices, but the vast bulk of sentencing culture ignores
them while they, in turn, ignore sentencing. Yet every sentence we impose
has a public safety outcome whether or not we pay attention.
There are probably three essential flaws and related
mythology in existing sentencing culture outside the good juvenile and
treatment courts: The role of "just deserts" remains paramount, so that
participants devote their energies to what is an appropriate severity in
terms of moral equivalency, courts think of "aggravation" and "mitigation,"
and all can claim success as long as a sentence is "proportional."
we should acknowledge that proportionality sets a
limit on severity, and focus on how sentencing choices rationally further
some social purpose -- typically but not exclusively, crime reduction.
"just deserts" (including "accountability," "consequences,"
or any other name for the category of purposes other than public safety)
should support a deviation from crime reduction only when and to the extent
that deviation is actually necessary to serve one or more of these functions
(which capture all social purposes of punishment per se):
to serve a legitimate need of a victim, to prevent vigilantism or private
retribution, to maintain public trust and confidence in criminal justice,
or to enhance respect for the persons, property, or rights of others.
Just deserts is not enough - within the limits of
proportionality, we fail if we do not exercise best efforts at public safety
(modified only as necessary to serve some other legitimate public purpose).
Our sentencing culture thinks of "public safety"
as the function of prison and as in competition with "rehabilitation" and
programs; therefore prison beds and programs are largely (and dysfunctionally)
allocated on the basis of blameworthiness and symmetry (thieves go to theft
counseling, bullies to anger management, and so on) rather than best efforts
at crime reduction. Instead,
prison, programs, and all sentencing devices should
be allocated by evidence-based choices based on risk, results, and resources
(within the limits of proportionality);
we should not ask merely "what works"; we need to
focus on " what works on which offenders" -- different things work or not
for different offenders
Modern decision support
technology holds great promise for improving our attention to and accomplishment
of crime reduction. The Oregon Legislature authorized funding for
wholesale modernization of court technology after testimony
explaining how technology can serve this purpose. This
is the vision the Oregon Judicial Department has adopted for Oregon eCourt:
We allow plea bargaining to drive most sentencing
outcomes with no attention to public safety or any other social function.
courts should direct attention to public purposes
when reviewing plea agreements;
Prosecutors, as advocates for the "people," ought
to bargain for the best public safety outcome -- exclusively, in most cases
Defenders should be ready to address "what works"
for their clients when and to the extent that that role furthers a client's
"Oregon eCourt will give
courts and judges the tools they need to provide just, prompt, and safe
resolution of civil disputes; to improve public safety and the quality
of life in our communities; and to improve the lives of children and families
support tools" described here are not intended to generate the "best" sentence
based on the input related to an offender and an offense -- but merely
to inform the process and encourage attention to the issue of public safety
outcomes by all involved. This includes encouraging other sources
of information - including variables unique to the offender and the community,
as well as other support for best practices -- including legitimate research
from fields such as criminology, corrections, and the other applicable
social and medical sciences. Oregon eCourt also obviously seeks to improve
dispositions in family law, juvenile delinquency, juvenile dependency mental
commitment and other fields in which we dramatically affect a person's
future and integration with our public whether we make best efforts or
help us fulfill our responsibilities to the public.
hearings (as well as pretrial release, post conviction supervision, and
custodial curriculum decisions) should be based on readily available evidence
about which sanctions and programs seem to work on which offenders.
"What works?" should be the question routinely addressed by advocates and
judges who have ready access to operational data to help answer that question.
We have developed
sentencing support tools in Multnomah County, and have made them available
to all judges and counsel in the County. These tools allow all involved
to run queries to determine how offenders who are like the subject have
fared after being sentenced to any of the sanctions (custodial and otherwise)
available for that offender, with success measured by various standards
- but all keyed to reduced criminal behavior.
The use of these
tools is slowly growing, as is their impact in making attention to public
safety outcomes a routine part of sentencing arguments and hearings.
The state Judicial Department has adopted sentencing support technology
as a goal. They are a part of the "decision support" initiative which
is in turn part of a major overhaul of our court technology -- which is
on a five-year plan subject to legislative support.
support tools are but one strategy for pursuing evidence based sentencing
in service of public safety. We have made major progress, but we
have a very long way to go. Sentencing is not going to abandon its
ancient and brutally dysfunctional liturgy without the difficult struggle
for cultural change that we have encountered at least for the last decade.
Michael Marcus, Judge, Circuit
Court, Multnomah County, Oregon