Criminal Sentencing Commission Minutes
	November 18-19, 1998 Third Meeting of Six

MEMBERS PRESENT

MEETING IN BRIEF

Minutes prepared by Joe McEniry, Legal Counsel
Organizational staffing provided by Eric Sponheim, Legal Counsel

1. Procedural Business.
2. Report of Misdemeanor Subcommittee.
3. Presentation on Fundamental Sentencing Issues.
4. Question Period.
5. Commission Discussion.
6. Preliminary Discussion of Goals.
7. Written Materials Filed With the Legislative Service Bureau.

COMMISSION BUSINESS

1. Procedural Business.

a. Call to Order. Senator Andy McKean, Co-chairperson, called the meeting to order at 9:40 a.m., January 6, 1999, in Room 116 of the State Capitol.

b. Approval of Minutes. After a correction made by Commission member Dorothy Faust, the Commission approved the minutes of the previous meeting, held on November 18-19, 1998. Ms. Faust clarified that day reporting does exist in some judicial districts in Iowa, and that split sentences and intensive supervision programs could potentially be effective under certain circumstances.

c. Recess - Adjournment. The meeting recessed for a morning break at 11:25 a.m., and reconvened at 11:45 a.m. It recessed for lunch at 12:50 p.m. and reconvened at 1:35 p.m. The afternoon recess was at 3:25 p.m. The meeting reconvened at 3:45 p.m., and adjourned at 4:35 p.m.

d. Next Meeting Date. No specific date was set for the next meeting. The commission did, however, agree that it would be in approximately four weeks, and that guests from Minnesota, North Carolina, and Kansas would be invited to give the Commission an overview of the operation of sentencing guidelines in those states.

e. New Subcommittee. The Commission established a Subcommittee on Data Collection, consisting of Senator McKean, W.L. Kautzky, Dorothy Faust, Priscilla Forsyth, Senator Robert Dvorsky, and Representative Dolores Mertz. No meeting date was scheduled for this subcommittee.

2. Report of Misdemeanor Subcommittee.

Commission member the Honorable J.G. Johnson, District Judge, presented the report of the Subcommittee on Misdemeanor Reclassification, which had met the day before. The subcommittee reviewed and proposed reclassification of the following misdemeanors: interference with official acts; driving while under license suspension; driving while barred; fireworks in a state park; theft in the fourth and fifth degree; fraudulent practice in the fourth and fifth degree; criminal mischief in the fourth and fifth degree; polygraph examination by employers; and interference with signs or signals. The plenary Commission discussed the subcommittee's recommendations, and some members expressed concern about an enhanced penalty for driving while under license suspension. The Commission decided to drop that particular recommendation, encourage legislators to prepare study bills on the others, and continue the work of the subcommittee.

3. Presentation on Fundamental Sentencing Issues.

Overview. Ms. Kay Knapp, a nationally known expert on state sentencing systems, made a presentation to the Commission. Ms. Knapp's visit was made possible by the National Institute of Corrections, which funded her technical assistance visit at the request of Co-chairpersons Senator McKean and Representative Jeff Lamberti. In addition to her participation in the plenary meeting of the Commission, Ms. Knapp also attended a briefing on January 5 on Iowa's sentencing informational systems, involving representatives of the State Court Administrator's Office, Community-based Corrections, Department of Corrections, Board of Parole, Legislative Fiscal Bureau, and Division of Criminal and Juvenile Justice Planning.

Distribution of Discretion in Justice System. Ms. Knapp's presentation focused on three fundamental issues in sentencing: what information sentencing decisions should be based upon; how discretion is to be distributed among the various parts of the criminal justice system; and how a given jurisdiction seeks to balance sentencing practices and correctional resources. She said that sentencing is the most complex public issue there is, because it involves every branch of government. But she emphasized that the legislative branch is the ultimate authority in setting sentencing policy.

Sentencing Information. The Legislature, Ms. Knapp said, specifies what information is relevant for sentencing decisions. Information can include factors related to the crime, to the offender, to case processing, and to postconviction behavior. Mandatory minimum sentences and "3-Strikes" laws are examples of screening out other information about offender characteristics as irrelevant to sentencing decisions. It is up to the Legislature, Ms. Knapp said, to prioritize among these informational factors in establishing sentencing goals. This is because priorities among the factors determine the purposes to be served by the sentence (punishment, incapacitation, rehabilitation, or deterrence) and the data needed to monitor sentences. By establishing these priorities clearly, the Legislature can reduce sentencing disparity and implement its policy choices in ways other than through mandatory minimum sentences.

Distribution of Discretion. The key issues relating to sentencing discretion, according to Ms. Knapp, are how focused or dispersed it is to be; how easy it is to monitor it and hold parts of the system accountable; and what primary sentencing purposes are to be achieved. American jurisdictions vary considerably, Ms. Knapp said, in how discretion is distributed among the prosecutor, the judge, the probation officer, the parole board, and corrections officials. Much of the recent movement toward greater "truth-in-sentencing" has involved moving discretion from the "back end" of the system (corrections officials and the parole board) to the "front end" (the prosecutor and the judge). Every time a mandatory sentence is passed, more discretion moves to the prosecutor and the other parts of the system are left with less. In general, Ms. Knapp said, if the primary purpose to be achieved in sentencing is punishment, discretion tends to be at the front end of the system. If the primary purpose is rehabilitation, discretion tends to be at the back end.

Crime Definitions. Ms. Knapp also explained the effect that crime definitions have on the distribution of discretion. Under the Model Penal Code, there were relatively few crimes but their elements were broadly worded. The recent trend, however, has been for crime definitions to become narrower and more specific. This trend gives more discretion to the prosecutor on what to charge.

Balancing Sentences With Correctional Resources. The final fundamental issue in sentencing, according to Ms. Knapp, involves a jurisdiction's method or methods of balancing sentences with available correctional resources. Methods of obtaining balance regarding prison beds include federal court orders against overcrowding; back-door releasing mechanisms; front-door sentencing options; and a systematic balance achieved through policy. For community corrections, methods include increased caseloads and a systematic balance through policy.

Interests. Before discussing the interrelationships between the three fundamental sentencing issues, Ms. Knapp outlined the main interests of parts of the system. Prosecutors tend to want certainty and bargaining tools; judges want good information, sentencing options, and predictability; corrections officials want a balance of practices with resources; and legislators want good aggregated information, accountability for policy implementation, predictable and controllable correctional costs, and a sentencing system that is credible to the public.

Interrelationships. Ms. Knapp pointed out that the more dispersed the sentencing discretion, the harder and more expensive it is to monitor sentencing and to develop aggregate data systems. In addition, some points of discretion are easier to monitor and collect information from than others. Judicial discretion is easier to monitor than prosecutorial discretion, for example, because judges operate in the open, whereas prosecutors are constrained by evidentiary concerns.

4. Question Period.

Commission member Senator O. Gene Maddox began the question period by asking Ms. Knapp for her opinion regarding the adequacy of Iowa's sentencing information systems, based upon what she had learned at the briefing on January 5. She replied that Iowa's systems are as good as those used in most states. Because the systems are operational systems, and not designed for research or policy analysis, however, it is difficult to get research answers from them. This problem is typical of states that have not built a data system specifically for policy purposes. That is why every state that has had comprehensive sentencing reform has done extensive data collection. Senator Maddox asked whether it is a problem that the Department of Corrections and Community-Based Corrections have different data systems. Ms. Knapp responded that having separate systems is not a problem as long as there are common identifiers providing a link.

Data Collection Procedure. Co-chairperson Lamberti, asked Ms. Knapp how other state sentencing commissions have collected data. Ms. Knapp replied that most of the early sentencing commissions hired staff, including some temporary workers, to do this work, which involves developing a sampling design. Other states have used probation officers as information collectors; Arkansas is an example of this. She emphasized that it is important for the database to be reliable, and that shortcuts should not be taken in developing it because the data is so valuable to policymakers.

Distribution of Discretion in Iowa. Commission member the Honorable Tom Miller, Attorney General, asked Ms. Knapp for her assessment of how discretion is distributed in Iowa. In her view, there is a lot of discretion for the prosecutor, increasingly less discretion for the judge, and more and more discretion being exercised by the Board of Parole. In a number of other states, she said, such as Minnesota, North Carolina, Pennsylvania, and Kansas, the trend has been to move discretion to the front end. The distribution of discretion also depends on how a state has defined its penal code; in Minnesota, judges had more discretion when crime definitions were based on the Model Penal Code. They have become narrower in recent years, however, because of legislative action.

Discretion in Iowa Compared to Guidelines States. In response to a question from Co-chairperson McKean, Ms. Knapp touched upon some of the ways discretion can be distributed under sentencing guidelines, and how those systems compare to Iowa's system. She said judges have more discretion under a guidelines system such as Minnesota's or North Carolina's than they currently do under Iowa's indeterminate system, because under a guidelines system, the judge makes both the dispositional and durational decisions. Minnesota's and North Carolina's systems differ from each other in the precise distribution of discretion, in that there is less discretion for a judge to depart from the guidelines in North Carolina than in Minnesota. In North Carolina, judges can depart from the guidelines only in extraordinary cases, and offenders who receive prison sentences must serve 85 percent of the sentence. In Minnesota, there is more discussion of whether the case is typical, and if the judge considers it atypical, the judge can vary both the disposition and the duration. In Iowa, by contrast, for most offenses, the Board of Parole determines how much time the offender serves.

Back-End Release Strategies and Approaches Other Than Guidelines. Commission member Mr. Kautzky asked about back-end release strategies other states have used. Ms. Knapp said states have been pretty consistent in using either parole or some type of supervised release that can be revoked. Co-chairperson McKean asked about approaches other than guidelines that other states have used. Ms. Knapp replied that in the 1970s, there were a few states that adopted legislatively determinate sentencing. California, Illinois, and Colorado are in this category, she said, as was North Carolina before it went to guidelines. Commission member Judge Johnson asked about split sentencing between prison and jail. Ms. Knapp responded that most systems would view this type of sentence as a probationary sentence with jail as a condition of probation, and Commission member Ms. Faust said that a pure split sentence is jail before probation. Commission member Charles Van Toorn observed that county jail time is considered tougher than prison by most offenders.

5. Commission Discussion.

Overview. Ms. Knapp facilitated a period of commission discussion by asking Commission members what factors they consider in their role in the sentencing process. Commission member the Honorable William Dowell, District Judge, said he begins with the applicable sections of Iowa Code setting forth the relevant criteria that balance rehabilitation and public safety. Ms. Knapp asked Judge Dowell whether it is possible to specify what a typical case of burglary looks like. Judge Dowell said that every case is individual. Commission member Pamela Dettman described the factors that go into a county attorney's charging decisions, which include the facts of the case and the county attorney's ethical responsibilities. Judge Johnson pointed out that in larger counties, the county attorney must set standards because he or she cannot handle every case. Commission member Valorie Wilson agreed that this is the case in Polk County.

Commission Members' Concerns. Mr. Van Toorn said that, in his experience, sentences vary greatly from judge to judge. The Honorable Mary Jane Sokolovske, District Judge, spoke of the high volume she must deal with in her courtroom, with 30-40 pleas often scheduled in a single morning. With that type of volume, she said, she simply has to rely on the plea agreement and sentence according to the offense, despite regrets that there is not more time to devote to each case. Commission member Representative Steve Richardson expressed concern about the effect of mandatory sentences on recidivism rates, and asked how the criminal justice system could be made to work better for society. Mr. Van Toorn said that law enforcement officials hear comments daily from people about criminals not being punished, while Ms. Faust reported that a survey of victims questioned the "get tough" attitude toward offenders. Mr. Kautzky said that none of the judicial districts has fully implemented intermediate sanctions, and that both additional resources and clearer policy direction would be needed to use them more extensively. Commission member Senator Johnie Hammond expressed concern that the amount of funding is insufficient, not only in intermediate sanctions, but throughout the criminal justice system.

6. Preliminary Discussion of Goals.

At the request of Co-chairpersons McKean and Lamberti, Ms. Knapp facilitated a preliminary discussion of commission goals. Ms. Knapp asked each Commission member to list two or three concerns they have about the system, and think about how the credibility of the system with the public could be increased. These concerns, as presented in a round-robin format, were as follows:

• Co-chairperson McKean: rapid increase in prison population and correctional spending; intermediate sanctions usage.
• Co-chairperson Lamberti: consistency, predictability, disparity (broad category of "truth-in-sentencing"); intermediate sanctions usage.
• Karla Miller: use of community-based corrections; civil commitment of sex offenders.
• Judge Johnson: review of 85 percent rule.
• Senator Hammond: prison crowding and increase in amount of correctional spending; need for evaluation of cost-effective programs; methamphetamine challenge.
• Senator Dvorsky: better communication among the various parts of criminal justice system; need for better information.
• Kay Kopatich: rehabilitation of offenders; promotion of reconciliation.
• Representative Teresa Garman: good data on what works; sentencing disparity; review of Iowa's distribution of discretion.
• Ms. Dettman: availability of community-based programs.
• Representative Richardson: mandatory minimum sentences; juvenile issues; greater use of community-based corrections; more consistency.
• Mr. Van Toorn: disparity in sentencing; jail crowding; balancing sentencing policy with correctional resources; increase community-based corrections, so long as research supports effectiveness; problem with lack of "truth-in-sentencing" under current "good time" policy.
• Judge Dowell: effect of 85 percent sentences on judicial and parole board discretion; insufficient staff to properly supervise probation; lack of resources for treatment/counseling; need to examine "good time" policy.
• Senator Kitty Rehberg: delays in getting offenders through system; increase in prison population; crime prevention among youth.
• Ms. Faust: need for better information system; lack of resources to make programs work; prevention efforts; involving citizens at local level; rural/urban disparity.
• Ms. Forsyth: insufficient usage of intermediate sanctions; mandatory sentences; lack of communication within system; delays in getting parole because of lack of treatment.
• Ms. Wilson: 85 percent sentences; mandatory sentences taking away discretion from judge.
• Judge Sokolovske: too many cases in limited time causing public perception of delays; insufficient resources for alternatives to incarceration; reducing recidivism.

Common Concern About Intermediate Sanctions. Reviewing these concerns, Ms. Knapp found considerable consistency in several areas, especially increasing the use of intermediate sanctions. Commission members discussed some of the considerations involved in potentially increasing their use. Ms. Forsyth suggested that a list of what programs are available in each district might be useful. Judge Johnson posed the question of how statewide coordination of intermediate sanctions programs would even be possible, given that, as Representative Garman pointed out, the Legislature has resisted putting Community-Based Corrections (CBCs) under the control of the Department of Corrections. Co-chairperson McKean called attention to the need for a mechanism to facilitate use of intermediate sanctions where effective, and the need to determine how much of a commitment of resources would be needed to make them more fully available. Ms. Miller added that earlier interventions with younger children could pay great dividends in preventing future crime.

Target Groups for Intermediate Sanctions. Ms. Knapp focused the discussion by raising issues about how target groups could be defined to increase the use of intermediate sanctions. She emphasized that in order to increase intermediate sanctions usage, the Commission will need to come to some decisions about which groups to target, who decides, and what constitutes success. Co-chairperson McKean asked how other states have done at building intermediate sanctions into sentencing guidelines. Ms. Knapp said that a growing number of states are attempting to do this, with North Carolina and Pennsylvania as leading examples. Those states have targeted broad categories of offenders, but according to Ms. Knapp there is also a need for detailed information. Representative Richardson asked whether Iowa's targeting of offenders would be held back by the Department of Corrections' lack of its own data system. Ms. Knapp replied that the information could be collected in other ways. It could, for example, be tied to case processing. The presentence investigator could collect data on the requested additional factors. In Minnesota, the Sentencing Commission set up a sentencing worksheet to accompany the presentence investigation (PSI). The primary consideration, she said, is to obtain information that fits the needs of the Legislature. Once legislative policy specifies what is important, the data collection can be done relatively inexpensively. As to the targeting criteria for intermediate sanctions, Ms. Knapp suggested that the Commission might want to link its consideration of this to the work already underway on risk assessment by Commission members Charles Larson, Sr., and Ms. Faust.

Increase in Size of Prison Population. Ms. Knapp noted that numerous Commission members had expressed concern about the increase in size of the prison population and 85 percent sentences. She noted the increase in length of stay in prison for other sentences besides 85 percent sentences, and Co-chairperson McKean asked whether the offenders serving the longer sentences are the right ones. Judge Johnson asked whether the longer sentences were the result of legislation or of Board of Parole policy. Representative Richardson said that one reason why the Legislature passed the 85 percent rule was concern about the automatic "good time" reduction of one-half of indeterminate sentences.

Question of Sentencing Guidelines. Co-chairperson McKean asked whether the Commission should consider guidelines. Representative Garman said yes, and Ms. Dettmann agreed that there is a need to be educated about them. Mr. Van Toorn asked whether other states have adjusted sentences when they adopted guidelines. Ms. Knapp replied that in most guidelines states, they did not change the sentences in the Code. Co-chairperson Lamberti added that under sentencing guidelines, actual time served may go up in the short term, but that it is possible to draft guidelines to reflect a political compromise: longer sentences for serious crimes, balanced by greater use of intermediate sanctions for other offenders. Ms. Wilson asked Ms. Knapp which state's guidelines work best. Ms. Knapp responded that Minnesota is a good model for the prison piece, but that no state has fully integrated intermediate sanctions into a guidelines structure. The Minnesota Legislature has been attempting to encourage greater use of intermediate sanctions by judicial districts, and North Carolina has also made significant efforts in this area.

Concerns about Guidelines. Judge Dowell asked whether sentencing hearings would become unduly long under a guidelines structure. Ms. Knapp replied that though this was indeed a concern under the federal guidelines, it was not a problem in such guidelines states as Minnesota, Kansas, and North Carolina. She said that plea bargaining works pretty much the same in those states under guidelines as it does under indeterminate sentencing. Judge Dowell also asked whether guidelines create more appeals, and Ms. Knapp answered that this, too, was primarily only a problem at the federal level. At the state level, she said, appellate review has not been a big problem.

Discretion in a Guidelines System. Representative Richardson asked whether judges have more discretion under guidelines than under indeterminate sentencing. Ms. Knapp said that they do, though the discretion under guidelines is a structured discretion, exercised according to standards set by the Legislature. Co-chairperson Lamberti said that perception of guidelines has been tainted by the federal guidelines, and that state guidelines systems are different. Ms. Forsyth said she did not share the concern about a sentencing hearing becoming overly lengthy under guidelines. Judge Dowell asked what role was left for the parole board in Minnesota, when guidelines gave more discretion to the judge. Ms. Knapp responded that in Minnesota, the parole board function is now an abbreviated one. When it adopted sentencing guidelines, Minnesota offered inmates already in the system the option to be resentenced under the guidelines; Washington state did this as well. Senator Hammond called attention to two different types of sentencing disparity: 1) differing sentences for the same conduct, and 2) lack of proportionality. Judge Dowell said that it would be more stressful for judges to sentence under a system where there is no parole board there to back them up. Ms. Knapp replied that it is possible to retain the parole board in a guidelines system, reserving some level of discretion. It would be a matter of deciding what factors the parole board should consider.

Further Consideration of Guidelines and Intermediate Sanctions. Following this preliminary discussion of sentencing guidelines, the Commission decided to invite to its next meeting representatives from Minnesota, North Carolina, and Kansas to become more informed about the operation of sentencing guidelines in those states. Co-chairperson McKean voiced the possibility that Iowa could conceivably be the first state to fully integrate intermediate sanctions into a guidelines system. Ms. Knapp suggested to Commission members that the Commission include, in the early stages of its data collection effort, information about what intermediate sanctions are available in Iowa and how they are being used. Ms. Faust offered to assist in gathering this information, in collaboration with the Division of Criminal and Juvenile Justice Planning and the Staff Counsel, Eric Sponheim. Ms. Knapp also encouraged Mr. Sponheim to continue gathering research material on "what works" among intermediate sanctions programs.

Data Collection Requirements. With Ms. Knapp's facilitation, the Commission used the remaining time to examine more fully its informational needs. Ms. Knapp said that the first issue is one of scope: whether to look only at felonies, or to include misdemeanors also. The broader the scope, she said, the more expensive it would be to do. She suggested that the Commission consider whether the entire continuum of sanctions needs to be reviewed, or whether certain classes of offenders, such as simple misdemeanants, juveniles, or first-time offenders, could be left off. Co-chairperson Lamberti said that it would be possible to build into the guidelines criteria for when juveniles are to be waived into adult court, and Ms. Faust pointed out that there are intermediate sanctions programs designed for young offenders. Ms. Knapp asked whether the question of how much harm a crime caused should be a relevant factor. Representative Garman expressed concern at all the additional paperwork, time, and expense that a data collection effort would require. Co-chairperson Lamberti said that the Commission will require additional resources if it believes a different structure for the Commission is needed. He said that a data collection effort would be a good investment because the present information is fragmented and not readily accessible for policy purposes.

Data Collection Options. Ms. Knapp encouraged the Commission to ask what it really needs, and to consider the vital role that data collection must play in a serious study of sentencing. Co-chairperson Lamberti asked Ms. Knapp what other state sentencing commissions have done in this regard. Ms. Knapp replied that they have asked themselves what information is important to them. Representative Richardson asked whether a college or university could be involved in the data collection effort. Ms. Knapp replied by describing some options: one would be to utilize people who are already collecting the information, another would be to hire and train people.

Importance of Data Collection Capacity. Senator Maddox agreed with Co-chairperson Lamberti that increased data collection capacity would be a good investment, and emphasized the need for coordination of resources regardless of who does the work. He asked the Co-chairpersons what possible plans they had in mind to get the necessary data collection work done. Co-chairperson McKean replied that eventually a research proposal could be developed, which could prompt a need for a different Commission structure. At present, he said, the information being collected is still preliminary. Co-chairperson Lamberti said that the short term in this process might be two years. He asked Ms. Knapp whether, in states with permanent sentencing commissions, the commissions control their own data collection. She said that they draw from existing operational systems, add to it what is needed for sentencing analysis purposes, and link these sources together to provide the information needed to evaluate sentencing policy. Permanent sentencing commissions thus play an important coordinating role, even after guidelines have been drafted. In sum, Ms. Knapp encouraged Commission members to consider data collection efforts as an investment to create a vehicle for accomplishing and monitoring sentencing policy.

Formation of Subcommittee. Ms. Knapp posed further questions about what types of information the Commission will consider to be relevant for sentencing decisions. Potentially, this data could include information about offender characteristics, the harm suffered by the victims, and other types of information, much of which is in the presentence investigation report. Senator Hammond proposed that the Commission create a Subcommittee on Data Collection. Commission members discussed this idea with Ms. Knapp, who urged them to start collecting information now, because informed policy change cannot be made without it. Co-chairperson McKean said that perhaps there is an irreducible minimum of information needed, regardless of what policy direction the Commission adopts. Mr. Van Toorn asked what types of information are collected in other states. Ms. Knapp said that other states collect data on offender characteristics, seriousness of offenses committed, and so on. Co-chairperson McKean suggested that the subcommittee would need to consider not only data, but also possible changes in the structure of the Commission. Senator Hammond added the subcommittee might need to consider other funding. The Commission decided to form the subcommittee, with the following members: Senator McKean, Senator Dvorksy, Representative Mertz, Mr. Kautzky, Ms. Faust, and Ms. Forsyth.

7. Written Materials Filed With the Legislative Service Bureau.

a. A presentation outline, "Sentencing Issues," prepared by Kay A. Knapp, National Institute of Corrections technical assistance provider.

b. Misdemeanor Subcommittee Proposals.

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