Let The Public Decide The Appropriateness And Length of Prison Sentences

Highlights

Does the public support incarceration for violent or repeat criminal victimizations?

Let the public in each state decide the appropriateness of prison sentences and their length then compare those findings to race, ethnicity, or other factors.

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I discussed rates and numbers of incarceration with a reporter. She wanted to know about data regarding disparities within the justice system, particularly incarceration. Race was one of the issues discussed along with ethnicity, income, and geography.

Her inquiry was prompted by a Department of Justice research agenda “to perform rigorous research that furthers the Department of Justice’s mission to increase knowledge about the connections between race, crime, violence and the administration of justice in the United States” (see below).

We both acknowledged that the overwhelming majority of what’s written about prison comes from advocacy organizations condemning the “overuse” of incarceration. She asked if there was any way to gauge the impact of intervening factors such as race, ethnicity, or other variables.

I stated that you would have to analyze a considerable number of individual cases and examine charges, severity, plea bargains, criminal histories, and other factors and compare cases with race, ethnicity, or other issues in question.

A Solution-Let The Public Decide

I suggested a solution to the “perception of fairness” of incarceration; letting the public decide the appropriateness of a prison sentence and whether the person’s incarceration was based on factors beyond the circumstances of the crime and the defendant’s criminal history.

Like the Department of Justice efforts summarized below, it’s a worthy question, who’s incarcerated, and was the decision based on the seriousness of the crime, the defendant’s criminal history, or other factors?

This could be an academic project but it would probably be better to have the Associated Press or national media source conduct a poll of citizen perceptions of 50-100 individual cases in each state. Major media sources are creating an array of databases of mass shootings, school shootings, police shootings, and general crime issues so this endeavor would not be unreasonable.

Every media source would have to use the same format for recording-coding and offering the information and polls asking people about the fairness of a sentence and length, which is why The Associated Press (with offices in every state) would be perfect for the job.

How It Would Happen-An Examination of 50-100 State Presentence Reports

Identify 50-100 prison state prison files at random. This can be as simple as a researcher-reporter having access to a list of prison inmates (available in all states) and picking people via an ordered number (i.e., every 50th person) until you reach 50-100. It has to be randomly done. You can’t pick names. Request the redacted presentence report from the state department of corrections.

A good presentence report will contain an overview of the crime, criminal, social, medical, drug, and psychological histories. Plea bargains and victim information are included.

Federal and state privacy acts require redacted data; principally the use of names, addresses, or any well-publicized crime (a defacto identification) plus other issues. Once sensitive-protected information (offender’s name, victim’s name) is redacted, there is no legal reason to deny the request.

All information as to sex and race would be excluded by the reporter-researcher offering a case summation to the public but kept for future reference to compare results.

In summary, we would know that the offender was incarcerated for aggravated assault because of a plea from the original charge of armed robbery, plus the items listed above.

Correctional systems would have to be reimbursed; via privacy act laws, sociological, psychological, medical history, and prior criminal charges-convictions cannot be made public unless names were redacted. Correctional authorities could not refuse because names and addresses or defacto identifications would be excluded, including those of the victim or anyone else identified in the file (i.e., a prison psychologist or medical provider).

Prison files are huge which is why the reporter-researcher would ask for presentence reports only that summarize everything. Presentence reports can be 10 to 15 pages, so we’re not talking about a huge burden.

So What Would We End Up With?

Without names or any other form of identification as to address, sex, race, ethnicity, or well-publicized crime, we would know the charge, the circumstances of that charge, what the charge originally was before plea bargaining, criminal history, prior convictions, the results or previous convictions (time served in jail, parole and probation, prison, commitment to a mental health facility), their history of mental illness or drug use and what the victim(s) experienced.

Thus, this unknown-unidentified person would be convicted of aggravated assault (a plea reduced from armed robbery), and the sentence. The offender would have ten previous arrests, five incarcerations, and three placements on parole and probation (assuming that two were dismissed). We would learn that they have mental health issues and a history of cocaine use. We would understand their correctional history (did they report to their parole and probation officer, did they assault someone in prison?). We would know about current and previous crimes. We would know their treatment history (i.e., did he successfully complete drug treatment?). The redacted victim’s name but information (his hospital stay or psychological condition or monetary loss) would be included.

So What Do We Do With This Information?

Reporters-researchers would publically release one case each week through all media sources via the Associated Press or major media source asking two simple questions:

1. Is this person’s prison sentence justifiable? 2. Is the sentence appropriate?

People would log into a website or free online polls (i.e., SurveyMonkey) to record their yes or no votes. They could only vote once via a computer’s IP address.

The findings could be segmented by the respondent’s location, sex, race, and ethnicity to make sure that votes are representative of the state’s population.

We Would Provide Baseline Data To Add Context

Most people don’t have a clue as to an average offender’s criminal history or previous charges, convictions, and sentences. We would provide a quick summation of contextual background data from the US Department of Justice or the US Sentencing Commission to include the average sentence served (significantly different than the original sentence given) and the average number of prior charges, convictions, and incarcerations.

The recidivism (rearrests-reincarceration) of former prison inmates is considerable-close to overwhelming based on new criminal charges, not technical violations (per federal research).

Per federal research, approximately 90-95 percent of all charges never go to trial-they are plea-bargained to a substantially lower charge and sentence in return for a guilty plea.

Prosecutors dismiss changes in approximately 20-30 percent of local-state cases per federal research. There are categories of federal charges where prosecutors drop up to 50 percent of cases.

Per the US Department of Justice, most violent offenders serve less than three years for a violent crime and less than two years for a property crime.

Without contextual information, most citizens would lack the knowledge-understanding to judge the appropriateness or length of a prison sentence.

What Would This Accomplish?

The transparency would be remarkable. We would know citizen opinions as to the appropriateness of a prison sentence and its length without having any idea as to the person’s name, address or other demographic information beyond age.

After 50-100 cases, reporters-researchers would compare citizen responses to the race of the defendant or other factors. If citizens felt that an inmate’s incarceration wasn’t justified, or his sentence was excessive, and these circumstances applied solely to race, ethnicity, or background, there would be a strong case for incarceration based on these issues rather than criminological factors.

Why Would The Associated Press Or Major Media Source Do This?

True crime is an immensely popular topic. Crime is one of the most important concerns of voters. This effort would create an enormous amount of publicity for the Associated Press or major media source. Tens of thousands of people (more?) would participate. National and state media outlets would cover the effort.  I assume that the AP would join forces with other national media outlets or researchers.

Current Data-Who Supports Incarceration?

Overall, 28% of U.S. adults say people convicted of crimes spend too much time in prison, while 32% say they spend too little time and 37% say they spend about the right amount of time, according to a Pew Research Center survey of 10,221 adults conducted in July 2021.

If you search for “public support for incarceration,” you are exposed to a multitude of articles and research from advocates suggesting that most Americans want “reform” in correctional policy with a greatly diminished reliance on correctional solutions or incarceration.

Is that correct? Involving everyone via polls judging individual cases would give us an answer.

Possible Policy Implications-Examples

Rural areas are known to have a tendency for longer sentences for lesser offenses. I am aware of a person who committed multiple interstate burglaries in a rural area who had a minor criminal history and also had mental health problems and received a ten-year prison sentence. I would suggest that many would believe that his long prison sentence was inappropriate. I’m guessing that people would vote yes to incarceration but no as to the appropriateness of the sentence.

People may suggest that a long prison sentence for a first-time violent crime conviction is not to their liking unless it was a serious injury-related event.

Some may view a prison sentence for an 18-year-old for an armed robbery of someone they knew (not uncommon) as questionable.

But consequently, I believe that many (most?) would find that prison is a reasonable response to anyone with a serious criminal history who committed a violent crime (most incarcerated offenders have violent charges or backgrounds plus multiple arrests). The same applies to someone convicted of his tenth burglary or property felony.

Researchers or reporters would have a citizen’s perspective as to the justness-appropriateness of prison sentences and the lengths of incarceration (again, knowing that most offenders serve only a portion of those sentences).

Researchers or reporters would then divide the citizen responses by the race-background of the offender (not offered via the weekly cases provided to the public but releasable under state privacy act requirements) and then we would have citizens’ perspectives as to whether or not there was injustice based on race or other factors.

Conclusions

Considering the nation’s and justice system’s history, it’s impossible to exclude the possibility that race (or other factors) influenced sentencing beyond the offenders’ charges and criminal history.

So let the public in each state decide the appropriateness of 50-100 sentences and the length of the sentence and then compare findings to race or ethnic backgrounds or other factors.

Background-Department of Justice Proposed Research

WASHINGTON— The Office of Justice Programs’ National Institute of Justice today announced an investment of $2.7 million to perform rigorous research that furthers the Department of Justice’s mission to increase knowledge about the connections between race, crime, violence and the administration of justice in the United States. The W.E.B. Du Bois Program of Research on Reducing Racial and Ethnic Disparities in the Justice System supports work that advances policy interventions designed to reduce disparities.

These interventions may impact policing practices, individuals’ access to defense resources, pre-trial release practices, charging decisions, access to treatment services, post-release programming or any other point at which disparity is evident. NIJ is particularly interested in identifying those interventions that have the greatest potential to positively affect an individual’s progress out of the justice system.

“The integrity of our justice system depends on our willingness to reckon with the glaring racial inequities that have, for far too long, undermined its legitimacy and impaired its effectiveness,” said OJP Principal Deputy Assistant Attorney General Amy L. Solomon. “The W.E.B. Du Bois Program follows the path that Du Bois himself blazed, supporting scientific exploration and looking ahead to the day when equal justice before the law is no longer just an ideal but a reality.”

 NIJ launched the W.E.B. Du Bois Program in 2000. It supported scholarly research until 2018, when the program was paused. It was relaunched last year. More information about the Program is available at https://nij.ojp.gov/funding/fellowships/web-du-bois-program.