Wisconsin has already had two sentencing commissions, now both defunct. Is it time to think about a third? Sentencing commissions have proven their worth over the long haul in a number of other states, including Minnesota, North Carolina, and Virginia. A successful sentencing commission promulgates guidelines that channel judicial sentencing discretion and reduce sentencing disparities, collects and analyzes sentencing data in order to support evidence-based decision making, and provides information and recommendations to the legislature than can help to blunt some of the political system’s tendencies to excessive harshness. Although it is certainly not cost-free, a good commission may ultimately save the state far more than is required to fund its operations.
With these considerations in mind, the latest edition of the Marquette University Law School Poll asked respondents their views of commissions and of judicial sentencing discretion. (For my earlier posts on the Poll, see here and here.) The results indicate that there is substantial support for a commission, but that Wisconsinites also appreciate what their locally elected judges bring to the table as sentencers.
In response to the key question on sentencing commissions (27g), 61% of respondents agreed that “[i]t would be better to have an expert sentencing commission set state sentencing policies, rather than elected politicians.” With only 23% disagreeing, views ran almost 3 to 1 in favor of a commission.
But the question was not without its ambiguities. What does it mean to “set state sentencing policies”? Would that include promulgating binding sentencing guidelines? Advisory guidelines? Also, how many of the “agree” respondents, if any, thought, “I’d really rather not have any statewide sentencing policies at all, but if someone is going to create statewide policies, I’d prefer to have an expert commission over the elected politicians.” Relatedly, if the Poll indicates greater trust in a commission than in “elected politicians,” where do judges fit in? They are elected, but we don’t normally think of them as politicians in the same sense that legislators are.
Additional questions focused on judges more specifically. For instance, respondents were asked whether they agreed that “judges in Wisconsin treat criminals too leniently.” Opinion was closely divided, but, with the “disagrees” beating the “agrees” 42% to 36%, there does not seem to be a strong, widespread view that Wisconsin judges are too soft.
On the flipside, are Wisconsin judges seen as too tough? Probably not — only 27% felt that “[m]any of the people who are locked up in prison do not deserve to be there.” (27d)
One perceived strength of sentencing judges is suggested by 27f: 52% of respondents agreed, and only 30% disagreed, that “sentencing judges do a good job of taking into account the needs and perspectives of crime victims.”
Another potential strength of sentencing judges is their ability to take into account local circumstances when fashioning a sentence. Such localization is, of course, in tension with the competing goal of statewide uniformity in sentencing. Wisconsinites seem closely divided on this question of localization versus uniformity, but 27h suggests that localization may have a bit more support: when asked whether “[i]t is important for Wisconsin to have uniform, statewide sentencing policies, even if that means that judges have less freedom to take into account local needs and values in determining sentences,” only 41% agreed, while 48% disagreed.
In sum, on sentencing matters, it seems that Wisconsinites have more confidence in an expert commission than in elected politicians. On the other hand, there does not seem to be widespread concern about the performance of the state’s sentencing judges, and there is some real appreciation for the ability of judges to tailor sentences based on victim needs and local circumstances. A new Wisconsin sentencing commission might play a valuable role as a source of information and analysis for policymakers and sentencing judges — possibly, but not necessarily, embodied in the form of advisory sentencing guidelines — but mandatory guidelines might be seen by many as undercutting some important benefits of judicial sentencing discretion.
Cross posted at Life Sentences Blog.
I am sure we could use a third. But first we should analyze why the first two were dissolved. Better yet, a rational discussion of racial disparity, the proportion of our citizens who are in prison, and what exactly constitutes a “crime” are all matters that should be discussed but are not. We have developed a dual track system of criminal justice in this country.
The rich and powerful are largely immune from prosecution, no matter what they do. At the other end, draconian sentences are handed down to the poor and unconnected for trivial crimes. Many politicians have no interest in hard, objective data because that does not suit their purposes. Until we get past that, and we most likely never will, our criminal justice system will continue to be a profit center that mocks the concept of “Equal Justice Under Law.”