Criminal Sentencing Commission Minutes
	February 19, 1999 Fourth Meeting

MEMBERS PRESENT

MEETING IN BRIEF

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

1. Procedural Business.
2. Presentation on Sentencing Guidelines in North Carolina.
3. Presentation on Sentencing Guidelines in Minnesota.
4. Presentation on Sentencing Guidelines in Kansas.
5. Discussion of Next Steps.
6. 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 9:00 a.m., February 19, 1999, in Room 116 of the State Capitol.

b. Opening Remarks. Co-chairperson McKean noted that for all the attention given to improving education in Iowa, the largest increase proposed for the upcoming state budget is for corrections. He said the Sentencing Commission provides an opportunity to consider whether Iowa wishes to address a continuing spiral of increasing spending for corrections. As an example of how the Commission could make a difference, he pointed to the misdemeanor reclassification proposals developed by the Commission's Misdemeanor Subcommittee. According to fiscal notes concerning these proposals, their enactment would produce substantial savings for the state.

c. Changes in Commission Membership. By unanimous consent, Representative Teresa Garman was approved as the new House Co-chairperson of the Commission. Representative Galen Davis was appointed as a new House member of the Commission. Ms. Penny Westfall, the new Commissioner of Public Safety, joined the Commission, replacing outgoing Commissioner Paul Wieck.

d. Recess - Adjournment. The meeting recessed for a morning break at 11 a.m. and reconvened at 11:20 a.m. It recessed for lunch at 12:35 p.m. and reconvened at 1:40 p.m. The meeting adjourned at 3:30 p.m.

e. Next Meeting Date. No specific date was set for the next meeting, but Co-chairperson McKean indicated that it would be in late March.

2. Presentation on Sentencing Guidelines in North Carolina.

Overview. The Honorable Thomas Ross made a presentation to the Commission on the operation of sentencing guidelines in North Carolina. Judge Ross is a Superior Court Judge and has been Chairperson of the North Carolina Sentencing and Policy Advisory Commission since its inception in 1990. He emphasized that North Carolina does not have the answers for Iowa, but can speak to its own successful experience with sentencing reform, which took effect in 1994. With its economy strong, Iowa has an opportunity now to plan for change in its criminal justice system in a thoughtful way and make it a better, more rational system.

Need for Bipartisan Approach. In order to make good policy, Judge Ross stressed, it is important to proceed on a bipartisan basis. Doing so enables a sentencing commission to move beyond the clash of philosophies that so often occurs in criminal justice between those whose main concerns are law enforcement and those whose main concern is rehabilitation. Judge Ross said that he believed neither of these occasionally conflicting approaches is correct; there is a need, rather, for balance and discretion. He said a system can be designed to have as much or as little discretion as a jurisdiction wants, and that a guidelines system is inherently neither tougher nor more lenient than an indeterminate sentencing system.

North Carolina Background. In the late 1980s, North Carolina's criminal justice system was in a state of crisis. Its prisons were very overcrowded, prompting federal lawsuits. To avoid federal intervention, the North Carolina Legislature passed a legislative cap on the number of people who could be in prison. As a result, parole went up dramatically, and by 1993, time served dropped from 40 percent to 18 of the sentence. By 1998, according to projections, it would have been down to 12 percent for felons. Misdemeanors were effectively decriminalized, because offenders were serving only seven to 12 days on a two-year sentence. It became widely known among offenders that prison was preferable to both probation and parole. Judges responded by giving longer sentences, which only exacerbated the problem. As a result, the public was losing confidence in the criminal justice system.

Formation of North Carolina Commission. To respond to these problems, the North Carolina Legislature set up a Sentencing and Policy Advisory Commission. The Commission was charged with some specific tasks, including:

• Ranking severity of crimes.
• Devising an approach, either through sentencing guidelines or some other way, that would allow the state to manage the corrections budget and match sentencing policy with correctional resources.
• Improving community corrections.

The North Carolina Commission established such goals as enhancing consistency and certainty in sentencing, promoting truth in sentencing, and balancing sentencing policy with correctional resources. The Commission eventually recommended that the Legislature enact "structured sentencing" for felonies. It was called "structured sentencing" rather than "guidelines" because of negative connotations created by the federal sentencing guidelines.

Components of Structured Sentencing. In order to rank the severity of crimes, the Commission wrestled with the question of why some crimes are punished more severely than others. A subcommittee looked at offense classifications, and set priorities in which crimes against the person are considered more serious. A subcommittee also looked at offender characteristics, and decided that the state simply could not afford to collect voluminous information on each defendant. Instead, North Carolina chose to focus on the number and severity of previous crimes, using a two-dimensional grid system in which offense class lies along the vertical axis and prior record lies long the horizontal access. The two axes combine to create boxes with presumed sentence ranges, based on the severity of the crime and the offender's prior record. North Carolina found, when it analyzed its data by offense class, that its system prior to structured sentencing was being driven by relatively low-level property and drug offenses, and that two-thirds of offenders had little or no criminal history.

Effect on Discretion. Use of this grid system does not necessarily mean taking away discretion, Judge Ross said. It means setting priorities in which prison space is rationed to be used primarily for violent and career offenders. The grid's cells are divided into three presumptive sentence classes: active punishment, intermediate punishment, and community punishment. For certain offense classes, judges have discretion to give either an active punishment (prison), an intermediate punishment (intensive supervision probation, day reporting, boot camp, etc.), or a community punishment (fines, community service). And for all offense classes, judges have discretion to vary from the presumptive range in order to choose from the aggravated or mitigated range. The result of these changes in North Carolina is that fewer offenders are going to prison, but the offenders who do go to prison are serving longer (about twice as long for violent offenders). Responding to the concern that too much discretion has been taken away from judges, Judge Ross stressed that nearly 60 percent of the cases in North Carolina fall into the section of the grid where judges can choose between an active and an intermediate punishment, and thus have the dispositional decision. Judges can also give consecutive sentences. Overall, Judge Ross believes that judges in North Carolina actually have more discretion under guidelines than they did before, because they, not the parole board, decide how long the offender will serve.

Ability to Project Prison and Community Corrections Populations. As a result of using sentencing guidelines, Judge Ross said, North Carolina is now able to project how many prison beds it needs, and how many community corrections slots. North Carolina has shifted substantial numbers of offenders (approximately 10,000) from prison to community-based corrections, and has also built prisons. It now considers its correctional populations and its capacity to be in balance. Without reform, Judge Ross said, its prison population would be 20,000 higher than it is now-at untold cost.

Questions to Judge Ross. Commission member, the Honorable Tom Miller, Attorney General, asked how drug offenders are treated under North Carolina's guidelines. Judge Ross answered that the goal is to force low-level offenders into a treatment program in the community, breaking the cycle of drug use. If they fail too often in treatment, then the focus shifts to punishment. Judge Ross said this approach has worked well; many low-level offenders are better dealt with in the community, where the recidivism rate is much less than for prison. Commission member Senator Hammond asked about the process for moving people into community corrections. Judge Ross replied that this happened gradually as offenders were sentenced under the new law, and was accompanied by a significant expansion of community corrections programs. Commission member Valorie Wilson asked how long a sentencing hearing takes in North Carolina under guidelines. Judge Ross said these hearings now take 15-20 minutes, less time than they used to. Commission member, the Honorable Mary Jane Sokolovske, Associate District Judge, asked how guidelines have affected plea bargaining. Judge Ross said that the number of jury trials has actually gone down in North Carolina, and that much of plea bargaining occurs now through consideration of consecutive sentences. Attorney General Miller asked why the federal guidelines have such a bad reputation. Judge Ross said that, as a "real offense" system, they are extremely complex. There have also been a lot of mandatory drug sentences superimposed on them, which take precedence over the guidelines.

Summary of North Carolina Results. Judge Ross concluded his presentation by summarizing the results of sentencing reform in North Carolina. Due to its guidelines, North Carolina, he said, has achieved the following:

• End to prison crowding.
• Abolition of parole.
• Return of prisoners held out-of-state.
• Longer sentences for violent offenders.
• Tougher community punishments.
• More consistency and certainty; less disparity.
• Policy and resources in balance.
• Cost savings.

North Carolina had a $20 million cut in its corrections costs this year, Judge Ross said. It was able to close several small prisons, enabling a shift of money that would have been spent on prisons to go to early childhood education and other worthy programs instead.

Other Questions to Judge Ross. Mr. Pat White, representing the County Attorneys Association, asked whether there were figures available on the recidivism rate, and the impact on public safety, before and after parole was abolished. Judge Ross said that there had been no adverse public safety impact. He said crime is going down in North Carolina and nationally. Recidivism studies are being conducted, and Judge Ross said he believes public safety has been improved. One reason for this in North Carolina has been the more effective use of community corrections programs. The state has increased the number of probation officers from 1,500 to 2,500, and there are more facilities like day reporting centers available.

Role of Sentencing Commission. Mr. White asked about the ongoing role a sentencing commission might play. Judge Ross said that a sentencing commission can play an important monitoring role, advise on impact analysis of proposed legislation, and recommend policy changes. North Carolina originally had an 18-month commission. It has proven to be so useful, however, that two years ago it was made permanent. Commission member Senator Robert Dvorsky asked how applicable the North Carolina experience was to Iowa, which already has strong community corrections programs. Judge Ross said that even if a state's system is not in crisis, there is a need to have good data, to focus on who is being sent to prison and for how long, and to do simulation modeling. Even if the data are available elsewhere in the state, a sentencing commission is a forum for assessing the policy considerations. Senator Dvorsky asked why the prison population had been increasing in North Carolina. Judge Ross replied that over 50 percent of the increase was from probation revocations.

Advantages of Clear Consequences. Commission member Representative Steve Richardson observed that as with school kids, criminal offenders need clear and consistent consequences for their behavior. Judge Ross agreed that this is important, and added that for nonviolent crime, victims would often rather see restitution or community service than a prison sentence. The reason for this is that just as you are not really being tough on kids by kicking them out of school, a sentence to restitution or community service may be a way of holding an offender more accountable than a prison sentence would. The certainty of punishment, on this view, is more important than the severity. Judge Ross also noted that North Carolina feared that with more supervised probation, the rates of revocation would go up. That has turned out not to be the case, apparently because the structure of the supervision helps many of the probationers to stay on track.

3. Presentation on Sentencing Guidelines in Minnesota.

Overview. Mr. Robert Johnson, Anoka County Attorney, made a presentation on sentencing guidelines in Minnesota. Anoka County is a suburban Twin Cities county of 300,000 people. Mr. Johnson has been with the county attorney's office there since 1968, except for a few years in private practice. He believes that Minnesota's sentencing guidelines provide a good system for felony sentencing, but doubts that community corrections can be integrated into a guidelines system without compromising local control of community corrections programs.

Guidelines Matrix. Mr. Johnson began by discussing the procedure used to calculate criminal history and offense severity under the Minnesota guidelines. Criminal history calculations involve a "decay factor," which governs how past offenses are to be considered. The basic starting point for crime severity is straightforward: person crimes are treated more seriously than property crimes. Minnesota has also developed a substantial body of case law, however, governing aggravating and mitigating factors and criteria for departing from a presumptive sentence. A departure from the guidelines requires a sentencing hearing. Once offenders have been sent to prison for a given number of months, they must serve at least two-thirds of that sentence, with the final one-third of the sentence spent on supervised release. Mr. Johnson said Minnesota finds the level of control over released offenders permitted by supervised release to be useful.

Distribution of Discretion. Mr. Johnson noted that in a guidelines system like Minnesota's, the prosecutor has considerably more control than in an indeterminate system. This is because, in a guidelines system, what is charged can more clearly be translated into a likely sentence. Guidelines have worked well for Minnesota, in Mr. Johnson's view, and prosecutors have behaved responsibly, though guidelines have altered the types of work involved in plea bargaining. In a guidelines system, prosecutors need more information up front to charge than in an indeterminate system, because there is more significance to decisions made at the front end of the system when there is no parole board at the back end. This leaves a great deal of discretion in the hands of prosecutors, who are the only stakeholders in the system to interface with all parties directly, without the insulation of counsel that judges have. Judges nonetheless continue to have a lot of discretion in Minnesota, because without a parole board their decisions carry more weight on how much time will actually be served.

Effect of Mandatory Sentences. Mr. Johnson cautioned against the complicating effect which mandatory sentences can have on the administration of guidelines. He said that mandatory sentences often fail to take account of the particular circumstances of human situations, sometimes leading to unjust results. He also described the social costs of collateral consequences and other policies which make it difficult for an offender to reintegrate into society. Since most offenders who are sent to prison eventually are released, money spent keeping them in prison for long periods might be better spent on efforts to enable them to overcome the risk of recidivism.

Balancing Policy with Resources. Under the American Bar Association Standards for Criminal Justice Sentencing, which Mr. Johnson helped to develop in 1993, sentencing commissions are to help ensure a link between sentencing policy and correctional resources. In the 1980s, the Minnesota Sentencing Commission was widely credited with keeping the size of the prison population from exceeding capacity. Though the Commission's top priority has more recently been changed to the protection of public safety, its bed impact projections remain influential with legislators. Overall, Mr. Johnson said, the guidelines have definitely helped to manage correctional resources.

4. Presentation on Sentencing Guidelines in Kansas.

Overview. The Honorable Richard Walker, District Judge and Chair of the Kansas Sentencing Commission, made a presentation on sentencing guidelines in Kansas. Before becoming a judge, Judge Walker had served in the Kansas House of Representatives for six years and on the Parole Board for four years. He began by illustrating the notion of sentencing disparity with a cartoon from the New Yorker showing two judges commiserating over how difficult it was to sentence equitably in every case. It was concerns about sentencing disparity, combined with prison overcrowding, that led to sentencing reform in Kansas in the early 1990s.

Dynamics of Sentencing Reform. In the mid-1980s, Kansas adopted a "get-tough" approach to crime, and the prison population tripled. The Legislature had to spend more and more money on the Department of Corrections. When parole became politically problematic after some parolees committed violent crimes, parole virtually shut down. It eventually was used only for very minor offenders. With political leadership from the Attorney General and others, an independent commission was set up in 1989 to recommend a more rational set of correctional policies. Kansas did not have accurate statewide sentencing data prior to setting up its Commission, so the Commission worked extensively on data collection. The goal was to make correctional policy decisions on the basis of evidence, not anecdote. This data collection effort eventually documented the existence of systemic geographic and racial sentencing disparity in Kansas. The press gave prominent coverage to these results, which showed that in metro areas and rural areas (but not in small cities), minorities were being sent to prison more often than Caucasians and were serving longer. The main impetus to act on sentencing reform, however, was prison crowding, Judge Walker said. The legislation which set up the Sentencing Commission in 1989 required the Commission to:

• Establish appropriate sentencing dispositions for all felony crimes.
• Minimize sentencing disparity, especially in the areas of race and geography.
• Make recommendations concerning the future of the Parole Board and good time credits.
• Consider current practices and resources.

Commission Goal-Setting. Very early in its work, the Kansas Sentencing Commission agreed upon the assumption that incarceration should be reserved for serious offenders, and that the primary purposes of a prison sentence are incapacitation and public safety. The Commission also agreed upon the following goals:

• To develop guidelines that promote public safety by incarcerating violent offenders.
• To reduce sentencing disparity in order to ensure the elimination of any racial, geographical, or other bias that may exist.
• To establish sentences that are proportional to the seriousness of the offense and the degree of injury to the victim.
• To establish a range of easy-to-understand presumptive sentences that promote "truth in sentencing".
• To provide state and local correctional authorities with information to assist with population management options and program coordination.
• To provide policy makers information that will enhance decisions regarding resource allocations.

Judge Walker emphasized that identifying incapacitation and public safety as the primary goals of sentencing does not mean giving up on a commitment to rehabilitation. He also described the political compromise required to pass sentencing guidelines in Kansas and elsewhere. This trade-off involves incarcerating violent and repeat offenders for longer periods of time and allowing nonviolent offenders with little or no criminal record to be handled through community corrections.

Results of Kansas Guidelines. Judge Walker said Kansas is very pleased with the results of its guidelines, which took effect in 1993. Kansas went from a system where no one knew how the system operated to one where the Legislature can make informed policy choices. The state contracted with the National Council on Crime and Delinquency (NCCD) to create a prison population projection model that has been remarkably accurate. The information made available by such models is very useful to legislators in setting policy, though Judge Walker cautioned that legislators must be able to resist the impulse to tinker with sentencing policy.

Other Considerations. Enactment of guidelines in Kansas coincided with a major overhaul of the Kansas criminal code, which made crime categories much more specific. Kansas has also designed its system to include procedures intended to prevent the sentencing guidelines grid from becoming overly rigid. There are separate grids for drug and nondrug offenses, "border boxes" for tough call cases (such as a first-time offender who commits a fairly serious crime), and "off-grid" offenses (murder, aircraft piracy, and treason). In addition, judges have the ability to depart from the presumptive guidelines sentence for substantial and compelling reasons in individual cases. Departures may be either durational (length of sentence) or dispositional (probation or incarceration), and are subject to appeal by either the state or the defendant. In Judge Walker's experience, two-thirds of the departures are arrived at through plea negotiation.

Retroactivity. Kansas's biggest concern about the guidelines has come from its decision to make the guidelines retroactive. The Kansas Legislature made this decision as part of the political compromise in getting the guidelines enacted. In practice, it has been an administrative nightmare, with fully one-third of the appellate court docket devoted to retroactivity cases.

Questions to Judge Walker. Commission member Senator O. Gene Maddox asked about the data source for the prison population projections. Judge Walker said that a record of every felony sentence is now sent to the Sentencing Commission in Topeka. Senator Maddox asked whether there is a centralized juvenile data system. Judge Walker said that it is not yet fully in place, but will be within a year. Commission member Senator Jeff Lamberti asked about the size of the Sentencing Commission staff in Kansas and whether it is funded through a direct appropriation. Judge Walker explained that the Sentencing Commission is an independent state agency in Kansas. When it was set up, there was an attempt to put it under the control of the Department of Corrections, but the Legislature strongly rejected that proposal. Commission member W. L. Kautzky asked about Kansas's experience with rural/urban dynamics in creating a statewide community corrections system. Judge Walker said that rural counties have been open to a more integrated state system, and that there is wide agreement that community corrections need to be expanded. Attorney General Miller asked whether the political dynamics of sentencing reform in Kansas were similar to those in North Carolina. Judge Walker said that they were, but that the vote to adopt guidelines was a close one. Support came from prosecutors, the law enforcement community, and victims organizations. Some judges were opposed, but others were open to a different system. Attorney General Miller also asked how drug offenses are being handled under guidelines. Judge Walker said that this is hard to measure, but that repeat drug offenders are serving more time.

Additional Questions. Ms. Wilson asked how the Kansas Sentencing Commission decided what data was needed to affect change. Judge Walker said that they focused on how much time offenders were serving, and how probation rates varied according to social factors. The intention was to create a snapshot, from six months in 1989, of who was going to prison. The Commission collected data on employment status, geographic location, race, and other factors. After reviewing the data, the Commission decided to focus on severity of the crime and offense history. Sheriff Van Toorn noted that many infractions identified by police are not pursued by prosecutors, and asked whether this was affected in Kansas by sentencing guidelines. Judge Walker said that the Kansas Sentencing Commission considered developing prosecutorial guidelines. The Commission concluded, however, that this could not be very easily done, because any system that would be developed could be circumvented. Mr. Kautzky asked how the grid boxes for the guidelines were developed. Judge Walker said that they were based on the experience of the commission members. Co-chairperson McKean asked how sensitive to correctional resources the numbers on the grid were. Judge Walker replied that initially Kansas did not do this, because it did not have the technology to do so until 1996. Mr. White asked about the relationships between the sentencing schemes for misdemeanors, drug cases, nondrug cases, and off-grid offenses. Judge Walker said that there can be problems with misdemeanor and felony penalties not being synchronized with each other, and that proportionality of punishment is now the Kansas Sentencing Commission's biggest challenge.

5. Next Steps.

Commission Charge. Following Judge Walker's presentation, Co-chairperson McKean outlined considerations involved in the Commission's decisions about its next steps. He said that he had visited with Governor Vilsack about the Commission, and that the Governor had indicated he sees sentencing reform as a priority. The Governor indicated to Co-chairperson McKean that he supported attempts to avoid unnecessary prison-building. Co-chairperson McKean noted that the prison population is nearly 8,000 now, and is projected to grow to approximately 14,000 within 10 years. He asked Commission members to review the charge to the Commission, and to consider such questions as:

• The extent to which prisons should be used primarily for those who pose an unreasonable public safety risk.
• What intermediate sanctions are available and how they should be used.
• The Commission's needs for more and better data.
• The effects of mandatory sentencing, and whether a different distribution of sentencing discretion would be preferable for Iowa.

Next Meeting. In order to move forward, Co-chairperson McKean said, the Commission needs to decide on its policy direction. The next meeting of the Commission, to be held in late March, will therefore focus on goal-clarification. Mr. John Kramer, former Director of the Pennsylvania Sentencing Commission (and an Iowa native), will be invited to facilitate this discussion. Prior to the meeting, each Commission member will receive an informational packet, containing material relating to the profile of Iowa's prison population, recidivism rates, and success in collecting fines/restitution. There will also be comparative material from the Division of Criminal and Juvenile Justice Planning describing how Iowa compares to Minnesota, North Carolina, and Kansas on selected measures.

Data Collection/Commission Structure. Co-chairperson McKean also described the two processes that have been initiated to assess the Commission's requirements for research support and whether the current structure of the Commission is suited to its policy goals. The first process, begun through the Data Collection Subcommittee, involves a collaboration between representatives of the Division of Criminal and Juvenile Justice Planning, the Iowa Research Council, and the University of Northern Iowa, aimed at developing a plan that will address the Commission's ongoing research requirements. The second process involves technical assistance offered by Judge Ross and the North Carolina Sentencing and Policy Advisory Commission, made possible by their Innovations in American Government grant from the Ford Foundation. Personnel from the North Carolina Sentencing and Policy Advisory Commission will be coming to Iowa within a few weeks to assess the Iowa Sentencing Commission's needs for data, whether additional staff is needed, and what the cost would be. This needs to be done quickly, Co-chairperson McKean said, because if additional resources are needed a proposal must be developed soon to seek a state appropriation to supplement federal funds. It is also necessary to determine whether a different Commission structure is needed, and, if an executive director is determined to be needed, to get someone in place in that role. Senator Lamberti asked whether the Ford Foundation involvement would lead to recommendations on how the Commission should be structured. Co-chairperson McKean replied that it would. Senator Lamberti proposed that this process be pursued, and Attorney General Miller concurred.

6. Materials on File With the Legislative Service Bureau.

» North Carolina Sentencing and Policy Advisory Commission, "1996 Progress Report on Structured Sentencing."

» Presentation Outline on Sentencing Guidelines in Minnesota, Mr. Robert Johnson.

» Minnesota Sentencing Guidelines Commission, "An Overview of Minnesota's Sentencing Guidelines."

» Cartoon on Sentencing Disparity, Distributed by the Honorable Richard Walker, Kansas Sentencing Commission.

» Kansas Sentencing Commission, "Overview of Sentencing Guidelines" [Kansas, 1999].

» Kansas Sentencing Commission, "Summary of the Proposed Sentencing Guidelines."

» Kansas Sentencing Commission, "1997 Annual Report."

» Bureau of Justice Statistics, "Truth in Sentencing in State Prisons" (January 1999).

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