Prison Sentencing As If Budgets Mattered

George Orwell said that the most difficult things to see are the ones right in front of one’s nose.

In Oregon, where are we now spend more on prisons run by the Department of Corrections than on public four-year universities, what is right in front of our noses is that the way we decide how long criminals should spend in prison is not only bankrupting us in the present moment, it is sowing the seeds of economic inequality and social weakness for generations to come, because excessive spending on incarceration deprives us of public goods that promote prosperity. We are trapped in an arms race against crime where bad policies cause more of the ills we are trying to cure and result in the public providing the funding for both sides of the arms race.

The recent notorious case of the affluent, white Stanford University student-athlete who raped a unconscious woman on campus but who, upon conviction, got a jail sentence of just six months in jail — by a judge who had himself been a student-athlete at Stanford University himself has raised the profile of judicial sentencing discretion in the worst possible way. In this, it echoes the first wave of mandatory minimum sentencing guidelines, which first gained favor as a way to address sentencing disparities that reflected race and class privilege.

Sadly, such reforms backfired. The power system did not start treating the poor or people of color as gently as it treated offending young males from affluent suburbs – instead, the mandatory minimums and Nixon’s “War on Drugs” created, in Michelle Alexander’s memorable phrase, The New Jim Crow, while the affluent whites continued to be let out of the system, now by prosecutorial discretion in charging rather than by judicial discretion in sentencing.

Now, in Oregon, as the Great Recession becomes the status quo of permanent contraction foretold by the ”The Limits to Growth” and as post-industrial capitalism causes well-meaning efforts to backfire and to produce even wider inequality, it is time to go back and rethink criminal sentencing from the ground up, not just in light of the well-documented class and race bias but also in light of what we have learned about organizational behavior, incentives, and the perverse outcomes that result when incentives cause people in key roles – the system superstars – to get rewards for behavior that is counterproductive to their organization as a whole.

Like CEOs who mortgage a company’s future for a short-term boost in share value, our judges and prosecutors have unique incentives that make sense to them and cause them to perform in predictable ways, which are detrimental to Oregon as a whole.

As we have seen with healthcare costs, which eat up an ever larger share of Oregon’s budget, when certain key actors have incentives that work counter to the overall system goal, the system goal is hopelessly unattainable. When doctors and drug companies are paid according to the process – the service provided or the drugs prescribed – they act to maximize those rewards. If health improves as a result, so much the better, but if not, well, there’s always more that can be done and more drugs that can be prescribed.

Healthcare is not the only industry where the United States is a global outlier in terms of high spending but poor results. We also rank as the undisputed world champion in imprisonment, and in the catastrophically long sentences we mete out.

The root of the issue is that the criminal justice system in Oregon, as in the rest of United States, runs on pretty much the exact same model as it did at the time of statehood, which is the frontier model – the judge ran the trials and selected the sentences. There was no one else to do it.

But the practices appropriate for a time when government was sparse and crimes were few are not those that are appropriate today.

Today, we have a vast criminal justice system, where the Department of Corrections alone – just a part of the system – plans to spend $1.6 billion in the next two years. And yet the critical decisions that drive all that spending are still made, one by one, in isolation and with no consideration of the overall context. Before sentencing guidelines and mandatory minimums, those decisions were at least made by judges. Now they are made by district attorneys (prosecutors).

Both these two key offices are filled by local elections. Thus, the two key actors, the people who have the most power to who determine what the state will spend on incarceration for decades to comes, not only have no special skill, training, or background in criminal sentencing, they also have zero accountability for the results of their decisions, except in the sense of being subject to popular hostility for a sentence that is seen as excessively lenient.

Thus, the rules for the game – game rather than system because the major key players (prosecutors) and the minor players (judges) have neither the opportunity or incentive to consider anything but the case before them, leads predictably to our present budgetary disaster.

There is nothing wrong with our judges or prosecutors. This is not about them as human beings or as honest public servants. We should not seek nor expect to find a better class of prosecutors or judges. Nor should we expect that there is any way to exhort them or educate them or persuade them to be more thoughtful, better informed, and to have a broader perspective. The title of a famous business magazine article says it best: “On the folly of rewarding A while hoping for B.”

No, the solution isn’t to think that there is some better class of people who would not seek to maximize their own career success by racking up the convictions and doing whatever necessary to avoid the fatal “soft on crime” label. The solution is to move sentencing away from judges entirely, after scrapping entirely the ill-fated project of mandatory minimums that have put so much power in the hands of prosecutors who have no accountability for the costs that they impose on the rest of us.

That is, what Oregon needs to do is make the system into a true system by unifying all the pieces of the process that we loosely call the “criminal justice system” into one budget, and putting felony sentencing into the hands of a state sentencing panel, which would be the body responsible for assessing all the felony inmates as a whole and setting sentences so that the goals of imprisonment are pursued in view of all the sentences to be determined, rather than one-by-one by self-interested actors who have no visibility to anything except the case before them.

The unified global state budget would include all the current prison and prison alternatives, from drug treatment and alcoholism programs, community corrections, reentry programs for those emerging from prison.

The existing system of prosecutors and judges would remain, but they would not decide felony sentences. Rather, when an offender is convicted of a felony, the case would be sent to the state sentencing panel, which would be responsible for setting the terms and conditions of the sentence, in light of not just that individual’s crimes but also in light of all the other offenders to be sentenced that year, as well as the day-by-day forecasts for prison beds for the entire length of the contemplated sentences.

By definition, a felony sentence is for at least a year. Each person would begin serving their felony sentence and, within 12 months, the sentencing panel would set the final sentence. The offender could seek a hearing to argue for sentencing reductions or alternative sentencing, and the crime victims could appear and give testimony about the crimes and their effect on the victims. But the sentencing panel would itself be a third actor, and the staff would be charged with presenting a sentencing proposal that is based on both the severity of the crime in the rankings of all the sentences and an effort to specify a sentence that maximizes the chance for successful re-entry to society after the sentence is served.

The key change is that, with a state sentencing panel, all of the actors in the system – the prisons and the prison alternative programs — would be drawing from the same global budget pot, and thus they would be rewarded for sentencing that works in terms of lower crime over time, rather than in career rewards for individuals.

Just as the Pentagon does not give every Second Lieutenant a credit card and tell them to go out and buy what they think are the best weapons, it’s time to stop giving prosecutors a platinum credit card that lets them, with the threat of mandatory minimums, force judges to ring up huge bills that neither of them will ever see or have to pay.

Rather than allowing prosecutors and judges to write checks the echo through the decades and must be covered by future taxpayers, we need to return judges and prosecutors to their jobs. For judges, that means conducting efficient, fair trials that protect the rights of the accused so that wrongful convictions are minimized and can be detected and reversed when they occur. For prosecutors, it means advocating for justice, not just for convictions.

The state sentencing panel would have a job of putting all the convictions into order of severity and then determining the optimal sentence based on science, that would ensure that the most serious crimes are considered against less serious crimes and that the most serious crimes are sentence first and that the critical, expensive resource – prison beds — are spent to obtain the greatest overall effect against crime, no matter where they are committed and no matter who the prosecutor or judge was.

The reason sensing guidelines of mandatory minimums fail is that they are a half-measure, a doomed attempt to apply statewide uniformity to a process that we’ve made inherently blind to anything but the one sentence to be decided. And we’ve put that decision in the hands of individual actors who, no matter how smart, fair, and capable, have no stake in minimizing the overall system cost.

We are in a prison of our own making. Each biennium, more and more of our resources go into prisons, leaving less and less available for the kinds of goods that make us better off. We need a prison system, but we don’t need a system that metastasizes and consumes us. It’s time to rethink not just how long our sentences are, but how we sentence, so that when we send someone to prison, they aren’t taking our future with them.