This article first appeared in the St. Louis Beacon, Jan. 4, 2009 - Missouri Supreme Court Judge Michael A. Wolff has joined the chief justice of the Oregon Supreme Court in a letter to President-elect Barack Obama calling for "major change in state and federal sentencing practices" that have resulted in the United States imprisoning a larger percentage of its population than any other country.
The letter to Obama and his transition team from Judge Wolff and Chief Justice Paul De Muniz says it is ironic that the United States has become the leader in incarceration at a time when it is "hoping to regain respect as leader of the free world."
The judges liken society's dependence on prisons to an addiction and called for more community-based options to replace incarceration.
"We use prisons as addicts use drugs," they wrote. "They don’t do what the public expects them to do, so we use them even more, with the result that we need more because prison makes many inmates worse when they return to their communities."
The judges wrote that the "archaic" sentencing policies have resulted in a "disproportionately large share of minorities" in prison even as a disproportionately large share of minorities are victims of crimes.
The judges said that the problems go far beyond the frequently criticized disparties in sentencing for cocaine offenses. They said that the federal sentencing guidelines are "blind to risk" and "ultimately ignore public safety as an objective."
State and federal sentencing policies were designed to eliminate disparties in sentencing, reduce prison populations and achieve truth-in-sentencing, the judges wrote. Instead, disparties still exist and prison populations have increased. The policies have resulted in prison terms closer to the actual sentence, they acknowledged. But they added that sentencing policies "utterly conceal the truth that federal and most state guidelines have nothing whatever to do with public safety, and result in misallocation of prison resources as measured by public safety outcomes"
Several states have made progress in sentencing reform, they said, including Missouri, Oregon, Wisconsin and Virginia. Virginia has cut the number of new prisoners it incarcerates by one-fourth without an increase in crime. It has accomplished the reduction by assessing the risk of the new prisoners.
The judges said that community-based treatment is more effective than prison in many cases because the criminal gets treatment that reduces recidivism.
"For most low and moderate risk offenders [other than some sex offenders]," they wrote, "community based sanctions work better measured by recidivism reduction than does incarceration, and they are far more cost effective. The great majority of offenders who are imprisoned will return to their communities without receiving effective programming."
It's time, the judges said, to "stop giving those who invoke 'just punishment' a free pass." Sentences should be no more severe than the blameworthieness of the criminal, they wrote, adding that mandatory minimum sentences should be replaced by individualized sentencing.
This isn't the first time that Judge Wolff has gotten involved in sentencing reform. He was active in the field when he was special counsel to former Gov. Mel Carnahan. Last year, he laid out his thoughts on "evidence-based sentencing" in a lecture sponsored by the Brennan Center for Justice.
Evidence-based sentencing makes individualized risk and needs assessments, looking at the risk of the offender and need for treatment. In his Brennan lecture, Wolff cited statistics from Missouri that suggest those who get community treatment are less likely to reoffend than those who are incarcerated. Here is a paragraph from that analysis:
"The Missouri Department of Corrections statisticians recently analyzed ten years of data on the 25 most frequently sentenced crimes for 1995 to 2005. Most are nonviolent offenses. Take felony stealing, for example. Of the 13,000 offenders sentenced to probation or a community sentence, 19.1 percent (one in five) committed another offense. Of the 1,000 or so offenders sent to prison on 120-day sentences, 45 percent committed another offense. And of the 1,900+ [1,921] offenders who went to prison for longer periods, nearly half (48 percent) re-offended."
The Wolff-De Muniz letter is here . A law professors' blog on sentencing policy discusses the letter in a Jan. 2 post here .