Statement of Steven L. Chanenson
Assistant Professor of Law, Villanova University School of Law
Member, Pennsylvania Commission on Sentencing

Initial Hearing of the ABA Justice Kennedy Commission
November 13, 2003
Revised November 17, 2003

Professor Saltzburg, Members of the Commission, good afternoon. My name is Steven Chanenson and I want to thank you for the opportunity to address the ABA's Justice Kennedy Commission. In my comments today I hope to convince you (1) to pick your battles, and (2) that a battle over sentencing structures, broadly defined, is the one worth fighting.

By way of background, I am an Assistant Professor of Law at Villanova University School of Law and a Member of the Pennsylvania Commission on Sentencing. Of course, I speak here today solely as a private individual, but an individual who has seen and worked in both state and federal criminal justice systems.

My suggestions to this Commission can be boiled down to two major themes. First, keep this project to a manageable scope. Second, assuming a focused approach, concentrate more on sentencing structures than on particular outcomes.

As you are no doubt well aware, it is easy to get overwhelmed by the number and variety of issues that relate to sentencing. The American Law Institute (ALI), under the able leadership of its Reporter, Professor Kevin Reitz, is in the thick of a multi-year process of revising the Model Penal Code's sentencing provisions. Yet there is discussion within even that mammoth and lengthy ALI project about limiting the scope of the effort. Your Commission is scheduled to report back to the ABA House of Delegates in approximately nine months. That is very little time, indeed. This alone should encourage you to stay as focused as possible given your rather expansive charge.

Furthermore, a final report that strongly advocates for just a handful of key recommendations increases your chances of avoiding what might be called "Blue Ribbon Syndrome." "Blue Ribbon Syndrome" has afflicted many commissions (with or without ribbons), task forces and panels over the years. The organization in question works hard, and develops a comprehensive and interesting report that addresses every conceivable issue. In a further attempt at completeness, the report gives equal time to just about every one of those issues. Sadly, this overstuffed report is rarely read fully and the commission's main messages (to the extent they have been identified) are too often overlooked.

With a narrow set of objectives, the Justice Kennedy Commission has the potential to make a significant impact. Now is an excellent time to be thinking about sentencing. With our incarcerated population exceeding 2 million people nationwide for the first time, and many states simultaneously experiencing significant corrections expenditures and dramatic budget deficits, both politicians and the general public are paying attention to sentencing. They may be more willing to entertain new options because the increased numbers - both human and financial - have captured people's attention. Indeed, these numbers should give us pause. But we should not confuse this opportunity to have a fuller dialogue about sentencing with a results-oriented mandate. A financial shortfall should not be the primary reason to change sentence durations. As an example, a money crunch should not automatically prompt more lenient and presumably cheaper sentences. For by that theory, when the public fisc is flush again, we should start locking up more people. Our sentencing systems should and do reflect more than mere dollars and cents. Think about what values should animate our policies.

Determining which specific issues are worth your time to explore in depth is unquestionably difficult. While I have three broad suggested areas of emphasis, which I will discuss in a moment, there can be no doubt that other areas of potential sentencing reform are important as well. For example, since the early 1990s, Pennsylvania has been a leader in introducing intermediate sanctions and developing sentencing guidelines to encourage their use. Pennsylvania has also maintained a significant commitment to rehabilitative efforts. Since 1994, Pennsylvania has allocated several million dollars annually - up to a high of $18 million per year -- to support county-level intermediate punishment efforts, ultimately including drug and alcohol treatment programs. Given the tight economic times, this funding was reduced in the current budget, but I remain optimistic that this is, at worst, a temporary dip.

Furthermore, a proposal pending in the General Assembly (SB 217), supported by the Pennsylvania District Attorney's Association and the Department of Corrections, would allow for a sentencing option requiring step-down treatment and structured re-entry for defendants bound for state prison as a result of convictions for drug-related offenses. This therapeutic community approach to drug treatment would start behind the prison walls and transition into community-based treatment. This kind of a sentencing-centered rehabilitative proposal is both exciting and consistent with a history of such initiatives in Pennsylvania. Efforts like these to create real sentencing options that offer alternatives to incarceration for certain offenders and further rehabilitative goals are important, but they must be seen in the larger context of the sentencing system.

While you should consider many factors, including the rate and cost of incarceration, I urge you to concentrate your efforts on sentencing structures. What sort of a system should we have? Which actors should posses what kind and degree of discretion? There can and will be future changes - down and up- in the particular levels of severity for any sentencing system. However, if those changes occur in the context of a reasonable and logical sentencing framework, the end results are more likely to reflect fairness and engender greater public confidence. Indeed, you will note that none of my broad suggested policy goals address the ultimate severity of sentences. These suggested goals can be consistent with relatively lengthy or relatively short sentences. But these goals will foster a sentencing system that openly and honestly addresses sentencing issues, including the question of sentence duration.

Thus, with an eye on that framework, I suggest that you promote three general policies: (1) altering or eliminating mandatory sentences; (2) vesting a healthy amount of discretion in the trial court balanced by considerable direction from sentencing guidelines and review from higher courts; and (3) encouraging a transparent or open system that speaks with one voice.

Mandatory sentences are the initial item in your charge from ABA President Archer and for good reason. Many people have spoken and written about mandatories so I will not dwell on their problems. But it is important to remember that mandatory minimum sentences have at least two types of negative impacts. First, their almost-Procrustean impact at sentencing, especially for drug cases, is difficult to defend. Indeed, a number of prosecutors appear to agree that at least some drug mandatories are unfair under certain circumstances and they choose not to invoke them. Avoidance of mandatory sentences is nothing new. The U.S. Sentencing Commission discussed it in 1991. More recent numbers concerning Pennsylvania's drug mandatory sentences which only apply if the prosecutor files a notice also reflect significant avoidance of mandatory penalties. It is all the more troubling that this avoidance of mandatory penalties may happen in a disparate or hidden fashion. There is another negative impact of mandatory sentences worth mentioning. The availability of mandatory sentences sends shock waves throughout the criminal justice system, not just at sentencing. Of particular importance is the role of mandatory sentences (or the threat of a mandatory sentence) in the guilty plea process. Thus, many people view mandatory sentences as an unfair governmental advantage at the guilt/innocence stage as well.

What can replace our current system of mandatory sentences and allow for more flexibility but still recognize the need for firm punishment that motivates some legislators to vote for mandatory sentences? One option would be to eliminate mandatory penalties and replace them with sentencing guideline enhancements from which judges may depart in appropriate, albeit unusual, circumstances. The Pennsylvania Legislature recently chose not to pass a new mandatory sentence for vehicular death in a construction zone in favor of just that kind of sentencing guideline enhancement. This action by the Pennsylvania Legislature follows in the tradition that created the Pennsylvania Commission on Sentencing in the late 1970s in large part as an effort to avoid mandatory minimum sentences that restrict judicial discretion. This approach of deflecting or eliminating traditional mandatory minimums and replacing them with sentencing guideline enhancements makes even more sense if trial judges have a respectable amount of bounded discretion.

Thus, the second major suggested goal is to chart a sensible middle course for judicial discretion, avoiding the perils of either extreme. Discretion should neither be effectively absent or effectively absolute.

How does Pennsylvania stack up in this area? As an oversimplified account, Pennsylvania sentencing judges retain broad discretion and may easily depart from the guideline recommendations as long as they provide a reason. These decisions to depart are only subjected to weak appellate review. Judges operate within wide discretionary ranges - in contrast to the narrower and more rigid federal ranges - and may reject those ranges entirely, when appropriate. Thus Pennsylvania's approach has retained a large degree of judicial discretion. The judges are able to judge. Furthermore, research indicates that in broad strokes the guidelines are largely followed and disparity has decreased.

Yet, Pennsylvania's approach is not a panacea. Pennsylvania can rightly be criticized for not providing enough oversight of sentencing judges. Many have argued that the sentencing ranges are overly-broad. Furthermore, no guidance is provided on when judges should order sentences to run concurrently or consecutively. Obviously, this presents a hole through which much mischief could be done. Finally, the weak system of appellate review is a subject of continued criticism. The de novo standard of appellate review for departure sentences (recently reintroduced into the federal system) may or may not be the best answer, but some increase in appellate review would be appropriate in Pennsylvania. Significant appellate review is needed to supplement the Commission's effort to guide judicial discretion and promote reasonable uniformity.

Judges do matter. Judges should matter. Yet judges are not omniscient and should not be omnipotent. Meaningful judicial sentencing discretion can provide needed flexibility and allow for reasonable proportionality without sacrificing reasonable uniformity. But this discretion needs boundaries. As in most other aspects of our government, including the sentencing commission, checks and balances make sense. The ideal contours of these checks and balances may prove elusive. But, the experience in Pennsylvania (with the caveats already mentioned) demonstrates that sentencing systems can avoid the lawlessness of indeterminate sentencing without becoming little more than a collection of mandatory sentences.

Third, there is enormous value in creating and nurturing an overall sentencing system that speaks with one voice and is open and transparent. Perhaps in light of my background, I am biased in favor of a sentencing scheme that includes a sentencing commission and sentencing guidelines. Given such an approach, I do not believe that the sentencing commission should co-exist with a separate entity that has parole release authority.

If the sentencing commission is doing its job, the guideline sentences (as applied by the judges) should be the appropriate sentences for the overwhelming majority of defendants. There should no longer be a need for the parole board's systemic back-end decision making concerning inmate release. The front-end disparity that characterized the indeterminate sentencing schemes of the pre-guidelines era should already be minimized. Another group of decision-makers - here the parole board - will not increase the rationality of the process. In fact, it will invite more confusion as judges must confront whether or not to adjust their reactions to the guidelines in individual cases in light of the difficult-to-predict behavior of the parole board. This recommendation does not implicate the occasional need for selective use of clemency powers. It simply recognizes that there should be one system-wide administrative hand on the rudder of the sentencing ship - that of the sentencing commission.

Again, this approach does not predetermine longer or shorter sentences. For example, one might be tempted to argue that an active parole release authority must logically result in shorter sentences. However, that has not been the recent experience in Pennsylvania, where the sentencing guidelines set a suggested minimum term of imprisonment. In Pennsylvania, judges are required to impose a minimum and maximum sentence. By law, in most cases the minimum cannot exceed one-half of the maximum. For decades, the conventional wisdom was that the parole board released most defendants at or about their minimum sentence. However, in the wake of a brutal crime committed by a released prisoner, the parole board's statutory mission and attitude changed in the mid-1990s. By 1997, Pennsylvania inmates served an average of 135% of their judicially-imposed minimum sentence. By 1999, that number had risen to 143%. That these numbers have come back down again only reinforces the conclusion that sentencing guidelines and parole release authority do not mix. Shorter or longer sentences can be obtained by adjusting the sentencing guidelines openly at the front-end.

Finally, a system that speaks with one voice is more likely to be open or transparent. Openness in this context means several things. For example, it means a system whereby there is a clear and public mechanism - both at the individual case level and the policy level- for addressing the issues that inevitably arise. At the case level, for example, a requirement that judges contemporaneously and substantively justify their sentences, subject to appellate review, furthers the open or transparent nature of the sentencing system. Both the defendant and the reviewing court will know what motivated the sentencing judge to impose the particular sentence involved.

Openness at the policy level means more than a public debate about specific policies, although such debate is vital. It would include taking significant steps toward better understanding the systems we have through increased and coordinated data collection. Cases should be tracked in detail from arrest through sentencing. That tracking information should then be analyzed and used to further refine our policies.

Openness may also be furthered by what we do with this information. In my view, that information (with the exception of certain sensitive personal information about defendants, witnesses or victims) should be made fully available to the general public. This includes information about the individual judges. Sentencing data involve public records created with public funds reflecting the exercise of a public trust. Sentencing information should not be hidden, especially not as part of a misguided effort to encourage judges to dodge the structural checks and balances on their sentencing behavior in the belief that their innate sense of justice is somehow inherently superior. Our sentencing systems should be able to withstand the closest scrutiny.

This is the approach Pennsylvania has taken. In 1999, Pennsylvania reversed approximately 20 years of practice and started releasing judge-specific information. Among the tangible benefits of this disclosure policy has been more interest in Pennsylvania sentencing issues and fuller judicial reporting of the sentences imposed. Fears of wide-spread abuse and politicization of sentencing have not come true, although there are certainly dangers and isolated examples of such problems. To minimize these concerns, the Commission has taken several steps to facilitate the responsible use of data, including providing contextual information and technical assistance for data users. Pennsylvania's adoption of this release policy reflects the objectives of rationality, public acceptance, trust, and openness.

Openness is a good in and of itself; more information is better than less. But openness is neither left nor right. Some may wrongly view disclosure of judge-specific information as a pro-incarceration tactic. Yet hidden discretion need not be used for leniency; in fact it could be used for severity or discrimination just as easily. Openness may also be messy at times. No one said that judging was easy or for the faint of heart. Ultimately, openness may encourage further reform. For example, and to bring my remarks full circle, openness may be a way to stave off or eliminate mandatory minimums, which may be viewed, in part, as an expression of legislative frustration.

A daunting task lies ahead of you. However, I urge you to concentrate on these three goals of (1) altering or eliminating mandatory sentences; (2) vesting a healthy amount of discretion in the trial court balanced by considerable direction from sentencing guidelines and review from higher courts; and (3) encouraging a transparent or open system that speaks with one voice. With these goals in mind, you will increase your chances of making a positive and lasting impact on the landscape of American sentencing. Thank you.