Judges and Post-Sentencing Discretion

The Best Of: Published in April of 2013, this article delves into the thinking of judges who are being given post sentencing jurisdiction over serious felons, and analyzes the relative absence of judicial involvement in  post sentence decision-making.

Screen Shot 2013-04-15 at 11.08.02 PMRecently there was a tragedy in Colorado that exposed the vulnrbility of the judge in sentencing matters. A violent and mentally ill offender was sentenced to 8 years in prison and an additional  4 years for assaulting a prison official. That same offender killed two men within a month of his direct release into the community from administrative custody (solitary confinement). One of the men murdered was the Director of Corrections, Tom Clement (photo image on left). That single parolee has temporarily slowed the movement in Colorado toward prison reform.

The issue faced by the courts and judiciary in sentencing offenders, is whether they should  remain involved with the offender until he or she completes both the sentence and post-sentence supervision. If you are the sentencing judge or a judge involved in post-sentecing  decision-making, you may come to regret  a decision that the public comes to see as a mistake.

It is one reason that judges are reluctant to engage returning offenders from prison or reduce prison terms as allowed by statute. Judges can and should be a part of a process to move an offender from prison into post-prison rehabilitation and supervision in the community. But the agencies and institutions responsible for preparing the prisoner for release and the the supervising authority in charge of the offender once released  must have the resources, expertise, and commitment  to make the post sentence release work for the community, the court and the offender.

To put it simply, if the sentencing process, the custodial experience, or the release process are seen as inadequate, the court and judge maybe be vulnerable to a  backlash that could cost the judge his or her job.. It is that reason, among others, that hold many judges back from releasing offenders early or getting involved in post sentence supervision of offenders.

In the case of the alleged Colorado murderer. he was recognized as someone with a serious mental problem and a danger to the community. His mental illness and violent tendencies were so severe that he spent the last two years of his sentence in isolation. There are unanswered questions at this time as to the nature, intensity and quality of the treatment and services provided after he was sentenced, and the lack of transitional housing and intensive supervision when he was released [there is some issue as to the court and/or judge’s error in sentencing the offender, but any court/judge error was not post-sentence]

This issue goes far beyond the tragedy in Colorado. Many states (including West Virginia, where judges have new discretion under prison reform legislation) allow their judges to alter prison terms or add supervision terms to released offenders.California has put in place one of the most progressive sentencing and prison reform processes in the nation. Offenders who are sentenced on non-violent, non-serious offenses to prison, actually serve their sentences in county jail. If the sentencing judge wishes to, he or she can maintain jurisdiction over the offender while in custody and  reduce the custodial term and/or order probation supervision for the offender when released into the community

Even though this discretion exists, over 80% of California’s eligible offenders are sentenced to straight custody, with no probation or supervisory term attached. Judges are clearly reluctant  to accept discretion to resentence or reduce a prison term or attach probation and/or other continuing judicial supervision.

It is unclear whether different custody conditions  or treatment would have made a difference in the Colorado case. But the involvement of the court in post-sentencing is a fundamental change  that should not be abandoned because of the court’s fear of reprisals. It is only through the courts effective partnering in post-sentencing systems, that we can provide  the improvement  in sentencing outcomes we so desire. I’ll have more to say about this issue on next weeks website (see 12 part article on sentencing systems).


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