Evidence-based judicial discretion: Promoting public safety through state sentencing reform

New York University Law Review

Volumn 83, Issue 5, 2008, Pages 1389-1419

  Wolff, Michael A ^a  

^a Supreme Court of Missouri ^*

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EID: 56849124021     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (161)

1. The 120-day sentence is referred to as "shock probation." The statute, MO. REV. STAT. § 559.115 (2000), authorizes the judge to put the offender on probation after 120 days in prison, usually upon receiving a report from the prison authorities as to the offender's behavior. See MO. SENTENCING ADVISORY COMM'N, RECOMMENDED SENTENCING USER GUIDE 4, 8,12 (2007), available at http://www.mosac.mo.gov/file/ User%20Guide%202007-2008-1.pdf (describing shock probation statute).
2. See infra Appendix A (recidivism rates by offender type and sentence);
3. infra Appendix B (recidivism rates by crime and sentence).
4. See infra Appendix A (showing difference of only about three percent in recidivism rates between shock treatment and imprisonment). See generally Michael Marcus, Archaic Sentencing Liturgy Sacrifices Public Safety: What's Wrong and How We Can Fix It, 16 FED. SENT'G REP. 76, 76 (2003) (arguing shock incarceration programs do not work).
5. In 2008, a Pew report found that more than one of every one hundred adults in the United States is now incarcerated. PEW CENTER ON THE STATES, One in 100: Behind Bars in America 5 (2008), available at http://www.pewcenteronthestates.org/report-detail.aspx? id=35904;
6. see also Adam Liptak, More Than 1 in 100 Adults Are Now in Prison in U.S., N.Y. TIMES, Feb. 29, 2008, at A14 (reporting that new report estimates 2.3 million of 230 million adults in United States are incarcerated in prison or jails).
7. Justice Anthony M. Kennedy, Speech at the ABA Annual Meeting (Aug. 9, 2003), in 16 FED. SENT'G. REP. 126, 127 (comparing United States to "countries such as England, Italy, France, and Germany").
8. Id.
9. Compare PAIGE M. HARRISON & JENNIFER C. KARBERG, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISON AND JAIL INMATES AT MIDYEAR 2003, at 1 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim03.pdf ("At midyear 2003 the Nation's prisons and jails incarcerated 2,078,570 persons.")
10. with WILLIAM J. SABOL, TODD D. MINTON & PAIGE M. HARRISON, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISON AND JAIL INMATES AT MIDYEAR 2006, at 1 (2007), available at http://www.ojp.usdoj. gov/bjs/pub/pdf/pjim06.pdf ("During the 12 months ending June 30, 2006, the number of inmates in the custody of State and Federal prisons and local jails increased 2.8% to reach 2,245,189.").
11. SABOL, MINTON & HARRISON, supra note 7, at 1.
12. See infra Appendix A (showing that in Missouri, recidivism rate for probationers is lower than for imprisoned offenders).
13. For example, in Missouri, approximately eighty percent of the offenders newly incarcerated from 1991 to 2007 were nonviolent offenders. Memorandum from David Oldfield, Dir. of Research & Evaluation, Mo. Dep't of Corr., to author (Jan. 22, 2008) (on file with the New York University Law Review).
14. See Douglas A. Berman & Steven L. Chanenson, The Real (Sentencing) World: State Sentencing in the Post-Blakely Era, 4 OHIO ST. J. CRIM. L. 27, 27-28 (2006) ("Despite the fact that Blakely evaluated state sentencing procedures, a great deal of the resulting buzz revolved around how this decision might affect the federal scheme.").
15. MATRHEW R. DUROSE & PATRICK A. LANGAN, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, FELONY SENTENCES IN STATE COURTS, 2004, at 1 (2007), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/fssc04.pdf [hereinafter DUROSE & LANGAN, FELONY SENTENCES IN STATE COURTS] ("[Ninety-four percent] of felony convictions occurred in State courts, the remaining [six percent] in Federal courts,");
16. see also ROGER K. WARREN, EVIDENCE- BASED PRACTICE TO REDUCE RECIDIVISM: IMPLICATIONS FOR STATE JUDICIARIES 1 n.1 (Crime and Justice Inst. & Nat'l Inst. of Corr., Community Corr. Div. 2007), available at http://www.nicic.org/Library/022843
17. (citing MATTHEW R. DUROSE & PATRICK A. LANGAN, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, STATE COURT SENTENCING OF CONVICTED FELONS, 2002, tbl.1.1 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/scscf02.pdf) (noting that in 2002, federal courts convicted 63,217 people, while state courts convicted 1,051,000).
18. In 2004, the last year for which the Bureau of Justice Statistics has published these statistics, federal courts convicted 66,518 persons, while state courts convicted an estimated 1,078,920, of felonies. DUROSE & LANGAN, FELONY SENTENCES IN STATE COURTS, supra, at 2.
19. DUROSE & LANGAN, FELONY SENTENCES IN STATE COURTS, supra note 12, at 2.
20. Id.
21. E-mail from David Oldfield, Dir. of Research & Evaluation, Mo. Dep't of Corr., to author (Feb. 7, 2008, 16:41 CST) (on file with the New York University Law Review) (reporting that, in Missouri, 99.7% of offenders sent to prison in 2007 were eligible for release and that only 3.2% of those incarcerated on December 31, 2007, were not eligible for parole).
22. WILLIAM J. SABOL & HEATHER COUTURE, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2007, at 4 tbl.4 (2008), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pim07.pdf (noting that 698,459 offenders were released from state or federal prison in 2005, and 713,473 were released in 2006).
23. See infra Appendix A. The Department of Corrections defines recidivism by two measures: (1) the first incarceration (for a technical violation or for a new sentence) following the start of the new probation or the release from prison; and (2) the first new conviction (resulting in prison or probation) following the start of the new probation or release from prison. 2007 MO. SENTENCING ADVISORY COMM'N RECOMMENDED SENT'G BIENNIAL REP. 42, available at http://www.mosac.mo.gov/file/MOSAC%20Commission% 20Report%202007%20Final.pdf [hereinafter MO. BIENNIAL REP.]. Recidivism rates obviously can be calculated only for reported crimes. Thus, the recidivism statistics are inherently less than complete: Not all crimes are reported, and even if reported, they may not be prosecuted for various reasons, such as weak evidence or lack of cooperation by the victim. However, some of the crimes that are not reported as new convictions are included in the recidivism calculation when an offender is returned to prison after committing a technical violation.
24. See infra Appendix A.
25. See infra Appendix B.
26. Id.
27. Id.
28. See Robert E. Pierre, Adult System Worsens Juvenile Recidivism, Report Says, WASH. POST, NOV. 30, 2007, at A14 ("Youths tried as adults and housed in adult prisons commit more crimes, often more violent ones, than minors who remain in the juvenile justice system, a panel of experts appointed by the Centers for Disease Control and Prevention said in a new report.").
29. See, e.g., Douglas A. Berman, Tweaking Booker: Advisory Guidelines in the Federal System, 43 HOUS. L. REV. 341, 382 (2006) ("According to a report from the Sentencing Project, over one-third of the federal prison population is comprised of first-time, non-violent offenders, and nearly three-fourths of this population are non-violent offenders with no history of violence."
30. (citing THE SENTENCING PROJECT, THE FEDERAL PRISON POPULATION: A STATISTICAL ANALYSIS (2004), available at http://www.sentencingproject.org/ pdfs/federalprison.pdf)).
31. Cf. Michael Marcus, Unacceptable Recidivism (Aug. 25, 2000), http://ourworld.compuserve.com/homepages/SMMarcus/the-problem.html (offering statistics, based on Judge Marcus's tracking of new prisoners in Portland, Oregon, for one month, to show that over half of all persons jailed in Portland in July 2000 had also been jailed during the previous year); see also Michael Marcus, Smarter Sentencing: On the Need to Consider Crime Reduction as a Goal, 40 CT. REV. 16, 19 (2004), available at http://aja.ncsc.dni.us/courtrv/cr40-3and4/CR40-3Marcus.pdf ("Of the 2,395 people jailed in Portland, Oregon, during July 2000, 1,246 had been jailed in Portland on some other occasion within the previous 12 months.").
32. Don Stemen, Reconsidering Incarceration: New Directions for Reducing Crime, 19 FED. SENT'G REP. 221, 224 (2007)
33. (citing FRANKLIN E. ZIMRING & GORDON HAWKINS, CRIME IS NOT THE PROBLEM: LETHAL VIOLENCE IN AMERICA (1997)).
34. I am generally skeptical of proposals labeled as reform. See Michael A. Wolff, Missouri's Information-Based Discretionary System, 4 OHIO ST. J. CRIM. L. 95, 120 (2006) ("Based on my previous government work I avoid the use of the word 'reform.' When reformers reform, they usually convey the message that the people in the system to be reformed are defective."). Reform usually does not work, in my experience, without the involvement of those who do the day-to-day work in the system.
35. PRINCETON SURVEY RESEARCH ASSOES. INT'L FOR THE NAT'L CTR. FOR STATE COURTS, THE NCSC SENTENCING ATTITUDES SURVEY: A REPORT ON THE FINDINGS 2 (2006), available at http://www.ncsconline.org/D-Research/Documents/NCSC- Sentencing Survey-Report-Final060720.pdf [hereinafter PRINCETON SURVEY].
36. 128 S, Ct. 586, 595 (2007) (holding that "extraordinary" circumstances are not required to justify sentence outside Guidelines range).
37. 128 S. Ct. 558, 573 (2007) (holding that federal district courts' freedom to deviate from hundred-to-one crack cocaine sentencing ratio did not violate sentencing statute's anti-disparity provision).
38. See, e.g.. MODEL PENAL CODE: SENTENCING (Preliminary Draft No. 5, 2007) (approved in part at ALI Annual Meeting, Aug. 12, 2007) (proposing new sentencing guidelines incorporating, for example, instruments to assess risk of recidivism).
39. For a dissenting view as to the approach taken in the Model Penal Code drafts, see Michael Marcus, Responding to the Model Penal Code Sentencing Revisions: Tips for Early Adopters and Power Users, 17 S. CAL. INTERDISC. L.J. 67, 72 (2007).
40. The Model Penal Code reporter, Professor Kevin Reitz of the University of Minnesota Law School, deserves credit for his thoughtful responses to critiques of the Code's limited retributivism approach and for placing a greater emphasis on public safety and outcomes in later draft revisions. Compare Marcus, supra, at 74-75
41. ("The [2004] revision has essentially . . . eschew[ed] responsibility for improvement of the public safety performance of sentencing . . . ."), with MODEL PENAL CODE: SENTENCING § 6B.09(1) (Preliminary Draft No. 5, 2007) (supporting development of instruments to determine "risk that felons pose to public safety").
42. ABA JUSTICE KENNEDY COMM'N, REPORTS TO THE HOUSE OF DELEGATES 1 (2004) [hereinafter ABA KENNEDY COMM'N];
43. see id. at 9-10 (listing recommendations).
44. Id. at 3.
45. In response to public concern about crime and the belief that many offenders are released too soon, state and federal lawmakers passed laws severely increasing sentences for repeat offenders. John Clark, James Austin & D. Alan Henry, "Three Strikes and You're Out": A Review of State Legislation, NAT'L INST. JUST. RES. BRIEF (Dep't of Justice), Sept. 2007, at 1, available at http://www.ncjrs.org/pdffiles/165369.pdf.
46. In describing the federal sentencing guidelines, the Fifth Circuit Court of Appeals explained: The sentencing guidelines do not merely change the procedures used to impose sentences, they initiate an historic shift in modern penology. The guidelines are designed to create uniform, determinate sentences based upon the crime committed, not the offender. Congress abandoned the rehabilitation model that shaped penology in the Twentieth Century. . . . By enacting the sentencing guidelines, Congress returned federal sentencing to an earlier philosophy that the punishment should fit the crime and that the main purpose of imprisonment is punishment. . . . To accomplish this goal, Congress limited the discretion of district judges through the guidelines and made the sentence imposed determinate by abolishing parole. The guidelines provide the analytic framework needed to create uniform sentences. The accompanying abolishment of parole ensures that the imposed sentences will be served. United States v. Mejia-Orosco, 867 F.2d 216, 218-19 (5th Cir. 1989).
47. Truth-in-sentencing laws require that persons convicted of violent crimes serve at least eighty-five percent of their sentence. See Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 13704 (2000) (requiring states to implement such laws in order to be eligible to receive grant awards under § 13704).
48. Starting with Maine in 1975, fourteen states and the federal government, to varying degrees, abolished parole boards and their ability to release prisoners early. See John F. Pfaff, The Continued Vitality of Structured Sentencing Following BIakely: The Effectiveness of Voluntary Guidelines, 54 UCLA L. REV. 235, 242-43 tbl.1 (2006)
49. (citing U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: TRUTH IN SENTENCING IN STATE PRISONS 3 tbl.2 (1999), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/tssp.pdf) (listing years during which states abolished parole boards).
50. See WASH. STATE INST, FOR Pub. Policy, Evidence-Based Adult Corrections Programs: What Works and What Does Not 3 (2006), available at http://www.wsipp.wa.gov/rptfiles/06-01-1201.pdf [hereinafter ADULT CORRECTIONS PROGRAMS] ("[T]he first basic lesson from our evidence-based review is that some adult corrections programs work and some do not. . . . [A] corrections policy that reduces recidivism will be one that focuses resources on effective evidence-based programming and avoids ineffective approaches.").
51. Congress enacted the Sentencing Reform Act of 1984 as Chapter II of the Comprehensive Crime Control Act of 1984. Pub. L. No. 98-473, §§ 211-239, 98 Stat. 1837, 1987-2040 (codified as amended in scattered sections of 18 and 28 U.S.C. (2000)).
52. U.S. SENTENCING. COMM'N, FIFTEEN YEARS OF GUIDELINES SENTENCING: AN ASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING REFORM, at iv, 3-7 (2004), available at http://www.ussc.gov/15-year/15-year-study-full.pdf.
53. Cf. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 14 (2001) ("Within the post-war penal-welfare system, the prison was viewed as a problematic institution, necessary as a last resort, but counter-productive and poorly oriented to correctionalist goals. . . . In the last twenty-five years this long-term tendency has been reversed, first and most decisively in the USA . . . .").
54. WARREN, supra note 12, at 1. Sentencing behavior alone does not account for all of the increase. The rates of incarceration also are affected by making offenses felonies that previously were misdemeanors, by criminalizing conduct not before recognized as criminal, by enhancing prison terms, and by enacting mandatory minimum sentences.
55. KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 2 (1998).
56. One can be philosophical about this essential dilemma of sentencing: "[A] proposal for sentencing standards that are constraining enough to assure that like cases are treated alike and flexible enough to assure that different cases are treated differently is a counsel of unattainable perfection." MICHAEL TONRY, SENTENCING MATTERS 185-86 (1996)
57. quoted in Berman & Chanenson, supra note 11, at 33.
58. William W. Berry III, Discretion Without Guidance: The Need To Give Meaning to § 3553 After Booker and Its Progeny, 40 CONN. L. REV. 631, 633 (2008) ("The Sentencing Reform Act of 1984 . . . moved the sentencing regime almost completely to the other extreme, implementing a system of mandatory guidelines that severely limited the discretion of the sentencing judge.").
59. See, e.g., MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 6 (1973) (noting that uncertainty in sentencing broke promise "to have a government of laws, not men");
60. Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CIN. L. REV. 1, 5 (1972) ("[T]here is no law-certainly none that anybody pretends to have enforced-telling the judge he must refrain, expressly or otherwise, from trespassing against higher claims to wreak vengeance.").
61. MO. REV. STAT. § 558.019.8 (Supp. 1990).
62. The Commission found significant disparities for various felonies: Sentences of white and female defendants were less severe than those for black and male defendants. See 1994 MO. SENTENCING ADVISORY COMM'N ANN. REP. 3-7 (on file with the New York University Law Review) (providing data showing lower sentences for white defendants compared to black defendants, and women compared to men, when charged with same felony).
63. MO. REV. STAT. § 558.019(6)(2) (2003) (requiring Missouri Sentencing Commission to study whether sentencing disparities exist between circuit courts or based on economic or social class of defendant).
64. The recent "crack vs. powder" cocaine debate, see, e.g., Kimbrough v. United States, 128 S. Ct. 558 (2007), exposed a dramatic national problem in disparate sentencing. In Missouri, regression analysis in 2007 using data from the Missouri Department of Corrections concluded: The Missouri incarceration rate for Blacks is over five times that of Whites. . . . Using the sentencing data for [fiscal year 2007], the comparison between the four racial or ethnic groups indicates that Blacks have the highest average prison sentence, 7.2 years compared to an average of 5.6 years for Whites. The aggregate data also indicates that Hispanics have the highest percentage of prison sentences (34.1%) and Whites have the highest percentage of probation sentences (65.6[%]). MO. BIENNIAL REP., supra note 17, at 24. The analysis further concluded that there are race-based disparities in the time served by prisoners. "Blacks served significantly more time than Whites (44.4 months compared to 28.9 months) in part because Blacks on average were sentenced to longer sentences (83 months compared to 65.7 months). As a percent of sentence Blacks also served longer than Whites (53.5% compared to 44.0%)." Id. at 30.
65. Circuit Courts of Missouri, http://www.courts.mo.gov/page.asp?id=321 (last visited Aug. 24, 2008).
66. MO. BIENNIAL REP., supra note 17, at 13.
67. E-mail from David Oldfield, supra note 15.
68. See, e.g., Robert Martinson, What Works? Questions and Answers About Prison Reform, 10 PUB. INT. 22, 25 (1974) ("With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism." (emphasis omitted));
69. see also WARREN, supra note 12, at 5 ("During the 1960s and early 1970s, however, the national violent crime rate tripled, and public officials demanded surer and stiffer sanctions against criminal offenders. Officials had grown cynical about whether rehabilitation could ever be really successful in reducing offenders' criminal behavior.").
70. See, e.g., Robert Martinson, New Findings, New Views: A Note of Caution Regarding Sentencing Reform, 7 HOFSTRA L. REV. 243, 244 (1979) ("[C]ontrary to my previous position, some treatment programs do have an appreciable effect on recidivism.").
71. WARREN, supra note 12, at 1.
72. Cf. PRINCETON SURVEY, supra note 27, at 7 ("[A] majority [of the public] . . . think[s] it is very important to direct more non-violent offenders into treatment, job and education programs and to keep them out of prison.").
73. Berman & Chanenson, supra note 11, at 29 n.14;
74. see also Richard S. Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 FED. SENT'G REP. 69, 70 (1999);
75. ANDREW VON HIRSCH ET AL., THE SENTENCING COMMISSION AND ITS GUIDELINES app. at 177-88 (1987) (summarizing guidelines in Minnesota, Washington, and Pennsylvania).
76. See sources cited supra note 57.
77. MODEL PENAL CODE: SENTENCING § 6B.01 cmt. b (Discussion Draft 2006) (listing possible amendments for "[s]tates opting to employ advisory rather than presumptive sentencing guidelines"); see also id. § 1.02(2) cmt. p (providing background information and listing of Comments regarding choice between presumptive and advisory sentencing guidelines).
78. See Cunningham v. California, 549 U.S. 270, 281 (2007) ("[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence."); Gall v. United States, 128 S. Ct. 586, 597 (2007) (observing that district court's use of sentencing guidelines as mandatory would constitute "significant procedural error"); Kimbrough v. United States, 128 S. Ct. 558, 564 (2007) ("[District courts [are required] to read the United States Sentencing Guidelines as 'effectively advisory' . . . ." (internal citation omitted)); United States v. Booker, 543 U.S. 220, 244 (2005) ("Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."); Blakely v. Washington, 542 U.S. 296, 301 (2004) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (internal citation omitted)). See generally Richard S. Frase, State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues, 105 COLUM. L. REV. 1190 (2005) (surveying state sentencing guidelines systems and analyzing options available to policymakers in light of Blakely).
79. For overviews and assessments of federal and state guidelines systems before Blakely, see generally Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991)
80. Richard S. Frase, Is Guided Discretion Sufficient? Overview of State Sentencing Guidelines, 44 ST. LOUIS U. L.J. 425 (2000)
81. and Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681 (1992).
82. For a summary of a study by the National Center for State Courts of the sentencing practices in three states that have different styles of sentencing commissions, see 2007 VA. CRIMINAL SENTENCING COMM'N ANN. REP. 39, available at http://www.vcsc.virginia.gov/2007VCSCReport.pdf. The three states are Minnesota, which has the most mandatory guidelines; Virginia, which has the most voluntary guidelines; and Michigan, which is somewhere between the other two.
83. Id. at 15.
84. The National Center study was not available in final form at time of publishing of this Lecture, but, according to the Virginia report, "the study shows that consistency in sentencing has been achieved in Virginia. . . . [And] there is no evidence of systematic discrimination in sentences imposed in Virginia in regards to race, gender, or the location of court." Id. at 16.
85. See, e.g., MO. SENTENCING ADVISORY COMM'N, RECOMMENDED SENTENCING: REPORT AND IMPLEMENTATION UPDATE 11 (2005), available at http://www.mosac.mo.gov/file/final%20report21June%202005.pdf ("Judicial discretion is the cornerstone of sentencing in Missouri courts.").
86. MO. REV. STAT. § 558.019.8 (Supp. 1990).
87. See supra text accompanying notes 1-2.
88. MO. SENTENCING ADVISORY COMM'N, supra note 62, at 11.
89. MO. SENTENCING ADVISORY COMM'N, PROGRESS REPORT ON THE IMPLEMENTATION OF THE RECOMMENDED SENTENCING ASSESSMENT REPORT 1 (2008) (showing reduction from 30,507 inmates in November 2005 to 29,846 inmates in December 2007).
90. Virginia Young & Tim O'Neil, State Leads Way in Cutting Prison Population, ST. LOUIS POST-DISPATCH, July 29, 2007, at 1A.
91. MODEL PENAL CODE: SENTENCING § 6B.09 Reporter's Note a (Preliminary Draft No. 5, 2007) (citation and inner quotation marks omitted).
92. Id. (citation and inner quotation marks omitted).
93. Cf. John Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm Among Prisoners, Predators, and Patients, 92 VA. L. REV. 391, 428 (2006) ("Past criminal behavior is the only scientifically valid risk factor for violence that unambiguously implicates blame-worthiness, and therefore the only one that should enter the jurisprudential calculus in criminal sentencing.").
94. See generally Rasmus H. Wandall, Actuarial Risk Assessment: The Loss of Recognition of the Individual Offender, 5 LAW, PROBABILITY & RISK 175 (2006) (evaluating Virginia's "actuarial risk assessment" method).
95. See supra text accompanying notes 1-2 (discussing St. Louis University workshop for trial judges).
96. This was a common explanation given by trial judges in the St. Louis University workshop when asked why they imposed lenient sentences on some offenders.
97. See MODEL PENAL CODE: SENTENCING § 6B.09 cmt. a (Preliminary Draft No. 5, 2007) ("Actuarial-or statistical-predictions of risk, derived from objective criteria, have been found superior to clinical predictions built on the professional training, experience, and judgment of the persons making predictions.
98. "); Stephen D. Gottfredson & Laura J. Moriarty, Clinical Versus Actuarial Judgments in Criminal Justice Decisions: Should One Replace the Other?, FED. PROBATION, Sept. 2006, at 15, 15 ("In virtually all decision-making situations that have been studied, actuarially developed devices outperform human judgments.");
99. see also Grant T. Harris, Marnie E. Rice & Catherine A. Cormier, Prospective Replication of the Violent Recidivism Among Forensic Patients, 26 LAW & HUM. BEHAV. 377, 390 (2002) ("[C]omposite clinical judgment scores were significantly correlated with violent recidivism, but significantly less than the actuarial scores.").
100. See Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 5 (2007) ("[J]udges are predominantly intuitive decision makers, and intuitive judgments are often flawed. . . . [W]here feasible, judges should use deliberation to check their intuition.").
101. See MODEL PENAL CODE: SENTENCING § 6B.09(1)-(2) cmt. a (Preliminary Draft No. 5, 2007) ("[T]he Code seeks to give transparency to [predictions of future offender behavior], bring to bear relevant statistical knowledge where it exists, incorporate clinical judgments where they can be most helpful, and subject the assessment process to the procedural safeguards available in the trial and appellate courts.").
102. The Missouri risk-assessment scale does not use race, gender, or marital status as a factor in the analysis. See Wolff, supra note 26, at 112-13 (listing factors).
103. On the correlation of education and employment to crime rates, see Stemen, supra note 25, at 221, 226.
104. For a complete description of this risk-assessment system, see Wolff, supra note 26, at 112-14.
105. See MO. SENTENCING ADVISORY COMM'N, RECOMMENDED SENTENCING USER GUIDE 2007-2008, at 37-38 (2007), available at http://www.mosac.mo.gov/file/User%20Guide%202007-2008-1.pdf (assigning value of negative one (-1) to risk factor of being under age twenty-two, where negative values indicate higher risk).
106. If risk assessment of youthful offenders followed the data strictly, helpful services to reduce the chances of reoffending would be denied to youthful offenders, even though this group greatly needs such services. See Steven L. Chanenson, Sentencing and Data: The Not-So-Odd Couple, 16 FED. SENT'G REP. 1, 2 (2003) (discussing Virginia approach, in which (1) offenders who receive more than nine points are ineligible for alternative punishment; and (2) high point values are assigned to young age despite benefit youths receive from services in alternative punishment).
107. 2007 VA. CRIMINAL SENTENCING COMM'N ANN. REP. 39, available at http://www.vcsc.virginia. gov/2007VCSCReport.pdf ("[implementation of the [nonviolent-risk- assessment] instrument began in pilot sites in 1997. . . . In July 2002, the. . . instrument was implemented statewide for all felony larceny, fraud, and drug cases.").
108. Id. at 18 (noting that, as of 2007, 79.1% of Virginia's inmate population were violent offenders);
109. THE SENTENCING PROJECT, THE FEDERAL PRISON POPULATION: A STATISTICAL ANALYSIS (2004), available at http://www.sentencingproject.org/ pdfs/federalprison.pdf (noting, in 2004, that 72.1% of federal prison population were "non-violent offenders with no history of violence"). By contrast, the current efforts in Missouri have lowered the percentage of nonviolent offenders in prison, but it remains high-about fifty percent. This figure derives from the fact that approximately eighty percent of new admissions are for nonviolent offenses.
110. Memorandum from David Oldfield, supra note 10. The difference between the two percentages reflects the fact that nonviolent offenders receive shorter sentences than violent offenders.
111. MO. DEP'T OF CORR., A PROFILE OF THE INSTITUTIONAL AND SUPERVISED OFFENDER POPULATION ON JUNE 30, 2007, at 13 (2008), available at http://www.doc.missouri.gov/pdf/Offender%20Profile%20FY07.pdf (including offenses classified as nonviolent, drug, and DWI).
112. Severity of the crime is measured by the harshness of the punishments imposed by Missouri judges over a three-year period for each offense. Wolff, supra note 26, at 106.
113. The STATIC-99, a widely used instrument for assessing risks for sex offenders, was validated on the Missouri sex offender population. MO. BIENNIAL REP., supra note 17, at 39-41.
114. The STATIC-99 is described in Murrell v. State, 215 S.W.3d 96, 114-16 (Mo. 2007) (Wolff, C.J., dissenting). In short, "[it] is an instrument that is useful to sentencing judges in assessing the risk that a particular offender is in a category of persons who are more or less likely to re-offend." Id. at 115.
115. The STATIC-99 helps to "determine] what kinds of controls, short of confinement . . . might work to reduce the chance of recidivism in a particular type of offender." Id.
116. See MO. BIENNIAL REP., supra note 17, at 47-55 (listing tables of average sentence statistics per offense).
117. See supra note 1 and accompanying text.
118. To help ensure the success of Missouri's new Sentencing Assessment Report, the redesign process involved some of the 1200 probation officers who would be using the methodology daily.
119. For a more extensive discussion of this program, see Wolff, supra note 26, at 116.
120. See MO. REV. STAT. § 557.026 (2000) ("When a probation officer is available to any court, such probation officer shall, unless waived by the defendant, make a presentence investigation in all felony cases and report to the court before any authorized disposition under section 557.011.").
121. See Jeffrey Fagan, Valerie West & Jan Holland, Neighborhood, Crime, and Incarceration in New York City, 36 COLUM. HUM. RTS. L. REV. 71, 72-73 (2004) (discussing effect of incarceration on employment and family).
122. See J. Mark Eddy & John B. Reid, The Adolescent Children of Incarcerated Parents: A Developmental Perspective, in PRISONERS ONCE REMOVED: THE IMPACT OF INCARCERATION AND REENTRY ON CHILDREN, FAMILIES AND COMMUNITIES 233, 236-37 (Jeremy Travis & Michelle Waul eds., 2003) ("Incarcerated parents reported in cross-sectional surveys that 5 to 30 percent of their adolescent children were arrested at least once. In contrast, nationally representative surveys of youth found that 10 to 12 percent of U.S. youth reported being arrested at least once by age 14 to 16." (citations omitted)).
123. See Frank Domurad, Evidence-Based War Stories, Evidence-Based Management (Oct. 2, 2006), http://www.evidence-basedmanagement.com/guests/ domurad-oct06.html ("What is an effective public safety intervention is treating those individual and environment factors that are 'criminogenic' in nature . . . . By focusing on these so-called criminogenic needs and using cognitive-behavioral and behavioral techniques, correctional agencies are achieving average reductions in recidivism of thirty percent and more.").
124. Mo. Sentencing Advisory Comm'n, Local Alternative Sentencing Resources, http://www.mosac.mo.gov/Local-ASR.htm (last visited June 2, 2008).
125. See ADULT CORRECTIONS PROGRAMS, supra note 37, at 2 ("The research approach we employ in this report is called a 'systematic' review of the evidence. In a systematic review, the results of all rigorous evaluation studies are analyzed to determine if, on average, it can be stated scientifically that a program achieves an outcome.").
126. See Michael Marcus, Archaic Sentencing Liturgy Sacrifices Public Safety: What's Wrong and How We Can Fix It, 16 FED. SENT'G REP. 76, 76 (2003)
127. (citing LAWRENCE W. SHERMAN ET AL., NAT'L INST, OF JUSTICE, PREVENTING CRIME: WHAT WORKS, WHAT DOESN'T, WHAT'S PROMISING 9 (July 1998), available at http://www.ncjrs.org/ pdffiles/171676.pdf (collecting studies)) ("Shock incarceration, shock probation, scared straight, D.A.R.E., and boot camp programs do not work and frequently do more harm than good.").
128. LAWRENCE W. SHERMAN ET AL., NAT'L INST, OF JUSTICE, PREVENTING CRIME: WHAT WORKS, WHAT DOESN'T, WHAT'S PROMISING 6-9 (July 1998), available at http://www.ncjrs.org/ pdffiles/171676.pdf;
129. see also WARREN, supra note 12, at 24 (discussing failure of boot camp programs to focus on correct needs).
130. Mo. Sentencing Advisory Comm'n, Recommended Sentencing Application, https://web.mo.gov/doc/RSWeb/message.do?r-Command=view (last visited Sept. 16, 2008).
131. MO. BIENNIAL REP., supra note 17, at 46 (finding lower recidivism rates when recommendation of probation is followed than when it is not followed).
132. The statisticians derived the recidivism data by a retrospective look at outcomes of sentences that were deemed to be within or outside the recommendations, even though the recommendations were not then in effect. They took sentences from as far back as 1995 and examined the outcome for those offenders, determining which sentences would have been within the recommended sentences if the recommendations had been in effect. This methodology made it possible to assess whether the outcomes were better or worse than if the Commission's recommendations had been in place and been followed or ignored. Id. at 42-46.
133. Id. at 7 (stating compliance with recommendations was 82.4% in 2007);
134. MO. SENTENCING ADVISORY COMM'N, PROGRESS REPORT ON THE IMPLEMENTATION OF THE RECOMMENDED SENTENCING ASSESSMENT REPORT 8 (2008) (on file with New York University Law Review) (stating compliance with recommendations has been 83.5% since October 15, 2007).
135. MO. BIENNIAL REP., supra note 17, at 9.
136. See generally Judith S. Kaye, Delivering Justice Today: A Problem-Solving Approach, 22 YALE L. & POL'Y REV. 125, 125 (2004) (explaining how "New York's state courts adopted a problem-solving approach to delivering justice in certain categories of cases," using "examples of community courts, drug courts, and domestic violence courts");
137. David Rottman & Pamela Casey, Therapeutic Jurisprudence and the Emergence of Problem-Solving Courts, NAT'L INST. JUST. J., July 1999, at 12, 13-16, available at http://www.ncjrs.gov/pdffilesl/jr000240.pdf (discussing history of problem-solving courts and underlying theory and methodology of those courts).
138. David Wexler explains that "therapeutic jurisprudence can itself be divided into four overlapping areas of inquiry. These involve (1) the role of the law in producing psychological dysfunction, (2) therapeutic aspects of the law, (3) therapeutic aspects of the legal system, and (4) therapeutic aspects of judicial and legal roles." David B. Wexler, Introduction to THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT 3, 4 (David B. Wexler ed., 1990);
139. see also GREG BERMAN & JOHN FEINBLATT, GOOD COURTS: THE CASE FOR PROBLEM-SOLVING JUSTICE 49-52 (2005) (describing concept of therapeutic jurisprudence).
140. U.S. GOV'T ACCOUNTABILITY OFFICE, REP. NO. 05-219, ADULT DRUG COURTS: EVIDENCE INDICATES RECIDIVISM REDUCTIONS AND MIXED RESULTS FOR OTHER OUT- COMES 5 (2005), available at http://www.gao.gov/new.items/ d05219.pdf ("[GAO's] analysis of evaluations reporting recidivism data for 23 programs showed that lower percentages of drug court program participants than comparison group members were rearrested or reconvicted.").
141. The Washington State Institute for Public Policy reviewed fifty-six studies of drug courts and found that adult "drug courts achieve, on average, a statistically significant 10.7 percent reduction in the recidivism rates of program participants compared with a treatment-as-usual group." ADULT CORRECTIONS PROGRAMS, supra note 37, exhibit 1, at 3.
142. The Institute also reviewed five studies that showed, on average, a 12.4% reduction in recidivism as a result of drug treatment in the community. Id.
143. BERMAN & FEINBLATT, supra note 102, at 9.
144. Id.
145. Id. at 8.
146. See infra Appendix A.
147. See infra Appendix A.
148. Cf. BERMAN & FEINBLATT, supra note 102, at 11 (discussing improved public confidence in justice stemming from use of problem-solving courts).
149. The Missouri Department of Corrections reports that, amongst offenders who complete the drug-court program, 7.4% are incarcerated within twenty-four months and 5.5% receive a new conviction. Offenders who fail the drug-court program have a 44.9% incarceration rate after twenty-four months and a 20.2% rate of new conviction. Mo. Dep't of Corr., Drug Court Recidivism Statistics 1 (Jan. 31, 2008) (unpublished report on file with New York University Law Review). For the Department's definition of recidivism, see supra note 17.
150. See Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 OHIO ST. L.J. 1479, 1553 (2004) ("Treatment programs, in an effort to demonstrate effectiveness, start cherry picking the low-risk candidates who would have been screened out of a traditional diversion system and channeling up and into the criminal justice system the high-risk candidates they were originally designed to serve.").
151. Evidence-based sentencing looks at whether a particular treatment is appropriate and whether it is effective. Aos, Miller, and Drake outline four recommended criteria for evidence-based review of corrections policy: (1) Researchers must "consider all available studies"; (2) "To be included in [the review, an] evaluation's research design [must] include control or comparison groups"; (3) Evaluation studies should "use 'real world' samples from actual programs in the field," rather than samples from "so-called 'model' or 'efficacy' programs"; and (4) "If the researcher of an evaluation is also the developer of the program," it is necessary to "discount the results from the study to account for potential conflict of interests, or the inability to replicate the efforts of exceptionally motivated program originators in real world field implementation." Steve Aos, Marna Miller & Elizabeth Drake, Evidence-Based Public Policy Options To Reduce Future Prison Construction, Criminal Justice Costs, and Crime Rates, 19 FED. SENT'G REP. 275, 281 (2007).
152. Under a grant the Missouri Sentencing Advisory Commission received from the Council of State Governments, the databases of the Departments of Corrections and of Mental Health were examined to see how many offenders in the criminal justice system have previous or concurrent experience in the mental-health system. Memorandum from Jeff Moore, Special Asst. Technician, Research & Evaluation, Mo. Dep't of Corr., to Sherri Paschel, Project Manager for Comm. on Mental Health Issues, Office of State Courts Adm'r (July 16, 2007) (on file with the New York University Law Review). The Commission and the Departments of Corrections and of Mental Health are supporting the effort to make crisis intervention training for law enforcement officers available statewide as a means of diverting mentally ill persons from the criminal justice system. See id.
153. See Eric J. Miller, The Therapeutic Effects of Managerial Reentry Courts, 20 FED. SENT'G REP. 127, 127 (2007) (describing reentry courts).
154. Anthony C. Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry, 45 B.C. L. REV. 255, 257 (2004).
155. Miller, supra note 114, at 127.
156. Thompson, supra note 115, at 258-60.
157. MODEL PENAL CODE: SENTENCING § 1.02(2)(a)(iii) (Tentative Draft No. 1, 2007).
158. But see Marcus, supra note 30, at 72 (disagreeing with this approach).
159. Marc Mauer, The Hidden Problem of Time Served in Prison, 74 SOC. RES. 701, 703-04 (2007).
160. See ABA KENNEDY COMM'N, supra note 31, at 9 ("There is no need for mandatory minimum sentences in a guided sentencing system.");
161. see also THOMAS GABOR & NICOLE CRUTCHER, MANDATORY MINIMUM PENALTIES: THEIR EFFECTS ON CRIME, SENTENCING DISPARITIES, AND JUSTICE SYSTEM EXPENDITURES 31 (2002), available at http://www.justice.gc.ca/eng/pi/rs/rep-rap/2002/ rr02-1/rr02-1.pdf ("[Mandatory minimum sentences for drug offenses] are blunt instruments that provide a poor return on taxpayers' dollars because they fail to distinguish between low and high-level, as well as hardcore versus transient dealers.").