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Sentencing reform does not mean soft on crime, neither does alternative sentencing

By Bill Britt
Alabama Political Reporter

Crime and punishment is a topic that raises complex issues, multiple passions and more than a little political rhetoric. A fixture of the liberal 1960s and 1970s was the idea that lawbreakers could be rehabilitated, that prisons were a barbaric intuition that should be brought into the modern era.

The scholarly new idea of that era was that rehabilitation was to be the function of criminal justice, that those who committed crimes could be changed into useful members of society through social engineering.

This liberal notion was thoroughly rejected in the 1980s and has continued in decline to this day.

Yet, with all of the good that has come from the more traditional model of crime and punishment there are still gaping holes when it comes to sentencing reform.

Sentencing reform is not synonymous with liberalizing punishment, no to the contrary, it has more to do with what Judge William Pryor said when he wrote that, “…criminal sentencing in Alabama could be made honest, fair, and rational.”

Judge William Pryor, who serves on the U.S. Court of Appeals for the Eleventh Circuit, was the driving force to establish the Alabama Sentencing Commission. Pryor served as the Alabama attorney general from 1997 to 2004. During this time he and his office drafted and successfully lobbied for the legislation that created the Alabama Sentencing Commission.

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Pryor has written that his goal for the commission was to, “Dismantle a regime of explosive growth in the prison population, disparities and dishonesty produced by indeterminate sentencing, and a system of corrections that offered few alternatives to incarceration as a form of punishment.”

He also has written that he hoped to, “Create over time a system of voluntary sentencing guidelines to the end that criminal sentencing in Alabama could be made honest, fair, and rational.”

According to Senator Cam Ward (R-Alabaster), who is the Co-Chairperson of the Senate Judiciary Committee, Chairman Joint Oversight for Prison and on the Sentencing Commission, says that the Sentencing Commission of Alabama has accomplished some very important tools toward better sentencing within the juridical system. A report released this summer lists a comprehensive look at what the commission has accomplish and is working on for the future.

Over the years actions by the U.S. Supreme Court and the U.S. Congress have had the effect of federalizing crime and punishment and has severely compromised the sovereignty of state governments and courts.

Judge Pryor, in his writings on “Federalism and Sentencing Reform in the Post-Blakely/Booker Era,” sights two U.S. Supreme Court cases that produced a sea change in sentencing reform. First ‘Blakely v. Washington’ was decided in 2004 and then ‘United States v. Booker’ in 2005.

These two cases placed exhaustive roadblocks for sentencing reform in our nation’s states.

In her dissenting opinion in Blakely, Justice Sandra Day O‘Connor wrote, “What I have feared most has now come to pass: Over [twenty] years of sentencing reform are all but lost.”

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O’Connor went on to accurately predict that many jurisdictions would abandon  sentencing reform all together.

The abandonment of sentencing reform had been one of the painful legacies of ‘Blakely.’

The Alabama Sentencing Commission is one of the few commissions that is still actively working to reform state sentencing policies.

In its mission statement the commission says, “The Alabama Sentencing Commission shall work to establish and maintain an effective, fair, and efficient sentencing system for Alabama that enhances public safety, provides truth-in-sentencing, avoids unwarranted disparity, retains meaningful judicial discretion, recognizes the most efficient and effective use of correctional resources, and provides a meaningful array of sentencing options.”

However, states have been wary of straying too far from the federal model which has resulted in limiting the role of judges and legislators.

“What has happened over the years is that states tie all of their sentencing guidelines to the federal guidelines. And what has happened over time is the federal justice and prison system has grown enormously,” said Ward.

Ward points out that when the federal system runs out of money because its prisons and courts have grown too large they simply print more money.

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“The federal government can run up massive debt and then they just print more money but states like ours have to balance our budgets,” said Ward.

Ward says that many states have nearly bankrupted trying to keep on par with the federal system.

“So, over the years, mistakes have been made tying everything that we do to the federal government,” said Ward. “Some things we do should be tied to federal guidelines, but not everything,” said Ward.

The commission has made progress in its mandate to ensure that sentencing practices promote public safety and recognize the impact of crime on victims by concentrating on the incarceration of violent, sex, and repeat offenders. There is still work to be done to “maintain meaningful judicial discretion allowing judges the flexibility to individualize sentences based on the unique circumstances of each case,” states the Alabama Sentencing Commission.

This again is slowed because of ‘Blakely’ and the federalization of the sentencing with mandatory minimums.

Today, prisons and state resources are stretched to the breaking point, the judicial system has ridden the pendulum, from the lenient 60s and 70s through the “Tough on Crimes,” of the last three decades into a new awareness that there must be a middle way. Where tough on crime also means alternative sentencing but not liberal punishment.

Ward said, “There are a lot of other individual crimes, particularly certain types of drug crimes, acts where you get caught for possession, but you are not trafficking, crimes like that aren’t necessarily tied to any kind of mandatory minimum.”

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Ward says that using certain alternative sentencing options, is how to begin to address prison overcrowding.

“You look at conservative states like Texas, Kentucky, South Carolina, these are states that are very conservative and they have already tackled this issue,” said Ward.

But, Ward and others point out that this is not about being soft on crime but being sensible in finding ways to keep the worst criminals behind bars.

However, only recently have many Republicans began to see the need for alternitive sentencing, the impetus coming not from legal reasoning but from budgetary restraints.

“There has been a dramatic shift in the political landscape on this issue in the last few years,” said Adam Gelb, director of the Public Safety Performance Project of the Pew Center on the States. “Conservatives have led the charge for more prisons and tougher sentencing, but now they realize they need to be just as tough on criminal justice spending.”

Ward says that many conservative states because of budgetary constraints have looked at how to  keep their pledge of public safety, punishment for crime and judicial integrity while making tough choices.

When asked which state offers the best example of a conservative re-evaluation of alternative sentencing, Ward said, “Texas, hands down. Because the Republican legislature, they are the government of Rick Perry, they have signed into law alternative sentencing guidelines for these first-time, non-violent offenders and have remained tough on crime.”

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Alabamians expect that the legislature will keep in mind Justice Pryor’s goal to, “Create over time a system of voluntary sentencing guidelines to the end that criminal sentencing in Alabama could be made honest, fair, and rational.”

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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