25 July 2007

Sentencing Guideline: Felonies and Misdemeanors

Yesterday, SL&P was talking about a fuss in Michigan because of a proposal to change a number of felonies back into misdemeanors.

Personally, I don't have a whole lot of heartbreak about such a rollback. HOWEVER, I think that if you do this the misdemeanors must be given teeth.

I can't speak for other States, but from what I've seen in Virginia there are large numbers of minor offenses which could be better handled as misdemeanors. I can see this being handled in one of two ways.

Before I list the two ways I think this could be done, let me first say that "truth in sentencing" should be expanded to cover misdemeanors. In other words, the law in Virginia only requires a convict to serve 50% of his misdemeanor time, but requires him to serve 85% of his felony time. Those running the jails and prisons want to keep some of the "good time" so that defendants have some reason to behave (or serve 100% of their time). I can see this, but think that the misdemeanor time should be the same as felony time - 85% across the board.

The first way to handle matters as misdemeanors would be through the sentencing guidelines. Leave non-violent crimes in the statute books as felonies but allow circuit court judges and juries the power to reduce them to misdemeanors only if the guidelines allow it. Then have the guidelines recommend, on a first or second sentencing event, serious misdemeanor sentences in lieu of a felony conviction with probation (which would be the normal outcome of most first or second sentencing events). I'm not talking about the weekend or week in jail that most misdemeanors get in general district court, I mean 6 unsuspendable months for the first sentencing event and 12 unsuspendable months for the second - No Work Release; No Home Incarceration. If the offender is bad enough that he gets a third conviction, then treat it as a third felony conviction for purposes of the sentencing guidelines.

The other way I see to handle this would be to either reduce non-violent crimes to misdemeanors or split them, much the way larceny is split between grand and petit larceny depending on the amount stolen. Then either promulgate guidelines for the general district court to use in setting sentences (probably impractical) or set mandatory minimums. For instance, assault or battery of a police officer is currently a non-violent felony carrying 6 months to 5 years. It could be split into 3 different crimes. Assault could be a misdemeanor carrying a mandatory, unsuspendable 3 months; battery could be misdemeanor carrying a mandatory, unsuspendable 6 months, and there could be aggravated battery as the felony (aggravating factors: attack as part of a group, throw more than one punch, cause injury, et cetera).

Personally, I would favor the first situation over the second. I think it is a more workable solution and would avoid a lot of unnecessary appeals as offenders who were clearly guilty took advantage of their absolute right to appeal a finding of the general district court to the circuit court, not because they believed themselves innocent or that the the punishment from general district court was overly harsh, but because they wanted to buy themselves a couple months more of freedom between the general district court trial and the de novo circuit court trial.

What are the advantages of this? Well, for one thing, it would benefit any number of members of society who make mistakes while they are young and not later in life by keeping that felony off of their record and allowing them to actually be able to make something of themselves. Second, while it would cause a great pulling of hair, gnashing of teeth, and rending of garments at first, when the message sank in that doing these things actually resulted in jail sentences, rather than the probation everyone expects now, I think there is an excellent chance that there would be a drop in low level crime. I remain convinced that a offenders do cost-benefit analyses. They wouldn't use that terminology, of course. However, whether it is at the subconscious or conscious level, the fact that they've gotten away with it the last 5 times they went to the mall and shoplifted and that they know cousin Jack only got 3 years of probation when he got caught taking $800 worth of electronics out of Wal*Mart last year and Bobbi-Ann got the same when caught cashing $1,100 in bad checks at the local Stop-n-Dash gets thrown into the mix when they decide whether to go to Sears and steal a power drill (or whatever target of opportunity is available). Now, consider the same thought process when the offender knows that Uncle Jack got 6 months and Bobbi-Ann got 12. And, before everybody starts protesting, I know this will not solve all crime. If nothing else, there will always be people so desperate for a fix that they will do anything (I've personally defended men who cashed bad checks knowing they were being filmed, using their own ID, and putting their thumb print on the check). However, this provides a fairly powerful incentive for those who have some rationality and who are considering breaking the law.

What are the disadvantages of this? It shifts a hefty burden onto the local governments, which traditionally pay for jails. It could also lead to jail overcrowding and prison undercrowding, although I suspect that in this era of regional jails Pitcairn Prison could fairly easily become Pitcairn Regional Jail and alleviate that. At least in the beginning, there would also be a spike in the inmate population; I suspect this would level off fairly quickly and drop off some as word got around about the mandatory jail time got around. I think that the best way to handle all of this would be to reallocate financial and physical responsibility for people given 6 months or more to the DOC. Instead of Pitcairn Prison becoming Pitcairn Regional Jail it could remain under DOC's control and become Pitcairn State Jail, open only to those prisoners serving a sentence of 2 years or less.

It's a half formed idea, but I think the core of it is solid: convict less people of felonies, but make them actually go to jail for the misdemeanors of which they are convicted.


jdgalt said...

I like your idea of more certain jail time for "minor" offenses. However, I feel this is only part of the story. These other reforms are needed more.

1. Some offenses can cost victims dearly but are regarded by police agencies as very minor and are usually not pursued at all (example: vandalism of somebody's car). This is an unacceptable situation because it completely fails to deter (studies have shown that criminals pay more attention to the probability of a penalty than to its size). My solution would be to impose a penalty (in either money or work-gang time) large enough to compensate all victims including those whose perps weren't caught, then distribute the proceeds to all such victims.

2. Many "offenses" on the books -- especially those that in themselves do no harm to anyone (loitering, vagrancy, drunk in public) -- exist only to give police an excuse to pick on anyone whose looks they don't like. This police discretion needs to be absolutely abolished, not only because "looking wrong" is simply not wrong, but because it breaks the guarantee of predictability known as the Rule of Law, which is a human right.

Indeed, all seldom-enforced laws (including those in my item 1) amount to violations of my item 2.

Furthermore, when you come down to it, the point of all drug and vice laws is to pick on people who "don't look right", so they need to go, too.

Anonymous said...

" My solution would be to impose a penalty ... large enough to compensate all victims including those whose perps weren't caught, then distribute the proceeds to all such victims."

Nice idea, but I think it wouldn't fly. Gives me sort of a bad feeling that someone gets to pay for something he didn't do. By all means, make them pay restitution for what they DID do. But solely to the damaged party. Otherwise the cops will take even less trouble to investigate the buglaries in the knowledge that the victim gets comepnsated. Also, it will be difficult enough to extract any money from the usual deadbeat petty criminals or clueless juveniles doing property damage. However, a lot of energy and resources are expended on keeping track of sex offenders, often for dubious populist political reasons. Why not use the technology to keep track of delinquent restitutions? I bet that would be highly popular as well.