Can Sentencing Guidelines Commissions Help States Substantially Reduce Mass Incarceration?

By Richard S. Frase. Full Text.

In his forthcoming book, The Insidious Momentum of Mass Incarceration, Franklin Zimring argues that sentencing guidelines commissions, of the kind that exist in Minnesota and several other states, could help states roll back the massive increases in prison populations that began in the mid-1970s. Professor Zimring proposes to achieve these reductions by giving such commissions several powers that they have not previously exercised, namely, powers to: (1) make case-specific prison release (i.e., parole) decisions; (2) administer state-funded financial grants and charge-backs to encourage local government compliance with policies designed to minimize unnecessary prison commitments and make greater use of non-prison sentences; and (3) collect and publicize data on specific local criminal justice policies and practices, especially by prosecutors, that drive up prison commitments and prison durations. This Article examines these proposals, documents the ways in which such commissions have already helped some states limit excessive growth in their prison populations, and suggests other ways, beyond those Zimring proposes, in which commissions can promote decarceration. This Article gives particular attention to the important strengths of sentencing guidelines commissions as policymaking bodies; these strengths explain why guidelines states have generally had slower rates of prison growth and provide reason to hope that they can now facilitate faster prison reductions. As Zimring notes, such commissions are located at the level of government where prisons are paid for and administered, thereby avoiding what he calls the “correctional free lunch” whereby imprisonment decisions are made by local judges and prosecutors who freely consume state resources without paying for them. In addition, sentencing commissions enjoy a degree of insulation from short-term political pressures of the law-and-order type because, although subject to legislative oversight and override, they are not elected or under the direct control of elected officials. Such commissions also usually have representatives from all major criminal justice stakeholders, giving them a more balanced perspective than the legislature, governor, or judiciary. And like all administrative agencies, sentencing commissions can collect data, acquire expertise, and bring an evidence-based, comprehensive (all crimes, all geographic areas), and long-term perspective to complex public policy questions.