26 July 2006
Law Matters -- Missouri Sentencing: Crimes, Punishments and Public Safety
The following reflections of Missouri Chief Justice Michael A. Wolff make up his July 2006 Law Matters column.
"If you do the crime, you'll do the time." To law-abiding citizens, this catch-phrase may sound like a simple yet perfect sentencing formula. Simple in theory, but reality is ... not so simple.
When a thief steals your car, your first emotional response may be that he should be put in prison for the rest of his life. At least that would keep him from stealing any more cars. Even if a life sentence feels, for the moment, like it fits the crime, it may not serve the traditional notions of justice or fit the public's pocketbook.
When legislators enact laws prescribing ranges of punishments, they may take incentives into account: if stealing a car were to carry the same punishment as shooting a person, for example, wouldn't the car thief shoot you and then take your car? The punishment would be the same. That is one reason the law establishes different ranges of punishment for different crimes.
Legislators also may consider the cost of prison versus the alternatives. There currently are more than 30,000 individuals in prison and nearly 70,000 on probation or parole. The cost of prison is $39.13 per day per inmate, not including costs of building prisons. Intensive or community-structured supervision, including drug court supervision, costs $6.25 per day; electronic monitoring is $10 per day; and regular probation averages $2.17 per day. Operating costs for prisons and correctional programs is about $638 million per year and does not include construction costs.
Sentencing to prevent future crime
Sentencing options include prison, probation, a community-structured sentence consisting of an intensely supervised probation with strict conditions, or a "shock" probation sentence in which offenders are evaluated during the first 120 days to determine whether they should remain in prison for a longer term or be released to community supervision.
The 120-day sentence can include institutional treatment, substance abuse or sex-offender evaluation.
As every parent learns about discipline, the punishment has to fit the offense. When a judge – like a parent – chooses a punishment, the judge tries to make sure that a particular offender does not repeat bad behavior.
Avoiding future crimes is important because more than 97 percent of felony offenders in Missouri eventually are released from prison.
In any sentencing, a judge's foremost concerns are justice – an elusive concept – and public safety. Violent felonies raise concern for public safety and typically draw long sentences. In less severe cases, for example, drug possession, theft or vandalism, the judge tries to set sentences that will help prevent offenders from repeating their criminal behavior.
The judge is not alone in considering justice and public safety in sentencing. Prosecutors, defense lawyers and probation officers also play roles in sentencing. And in a few cases, juries recommend sentences. Many sentences result from plea agreements between prosecutors and defense attorneys. In those cases, the judge may allow the attorneys to agree on the sentence or on the range of punishment, but the judge is free to reject the agreement. This requires a trial or a new agreement.
Fully informed judicial discretion
Each crime carries a range of punishments that can be imposed. Some offenses carry mandatory minimum terms; for some violent offenses, the law prescribes a certain percentage of the sentence be served in prison before parole.
But in the end, within the limits of the law, the sentence is within the discretion of the trial court judge.
To support this judicial discretion in felony cases, the Missouri Sentencing Advisory Commission – working in close cooperation with the Department of Corrections, the Board of Probation and Parole, and the Missouri Judiciary – has developed a system of recommendations that includes the various options available.
These recommendations help make all who deal with sentencing – courts, prosecutors and defense counsel – as fully informed as possible of the options available for managing the offenders, the risk factors that may predict whether an offender may re-offend, and the guidelines and practices of the parole board in releasing offenders on parole.
The recommended sentences – which are based on the actual sentences for each offense – become progressively more severe depending on the offender's prior criminal history.
Before sentencing an offender, a judge may ask for a sentencing assessment report. The report, prepared by one of the state's 1,200 probation officers, includes the details of the offense; the impact on the victim; the offender's prior criminal history; an evaluation of the offender's characteristics that relate to the risk of re-offending, including education, job status and substance abuse; and a management plan for dealing with the offender, whether in prison, in a 120-day sentence for evaluation or treatment, on probation, or in some community-based alternative setting.
The commission's information-based system, fully implemented since November 2005, continues to be evaluated. Detailed information about the commission's composition, processes, analyses and recommendations – as well as the sentencing options and alternatives available in Missouri's courts – is available on the commission's Web site, www.mosac.mo.gov.
Sentencing is probably the most difficult task facing any trial judge. Trial court judges sometimes worry whether a particular sentence is the "right" one ... whether it will make the offender do the right "time" for the crime, whether in prison or on community supervision … and whether the sentence ultimately will serve justice and protect the public. The information available will help the judge make better decisions in many cases, but there are no easy answers.