In Depth: Sentencing Guidelines and Correctional Resource Management

December 20, 2017

Sentencing guideline systems exist, in part, to monitor prison growth, prioritize the use of limited correctional resources, and avoid prison overcrowding. Statutes sometimes mandate that sentencing commissions write guidelines, for example, “with due regard for resource availability and cost.”1 Today, all sentencing commissions are required to consider the fiscal and structural impact of their recommendations for the future in some manner. However, the language varies widely and the effect of resource management directives is more pronounced in some jurisdictions than in others. This article examines some of the ways in which jurisdictions have employed sentencing guidelines to stem the tide of rising correctional populations, curb spending, and make better use of existing correctional resources. The article also reviews research on the effectiveness of those efforts.

Prison growth in the United States has often seemed overwhelming and insurmountable.  The Sentencing Project reports a 500% increase in the total national jail and prison population in the forty years between 1973 and 2013.2 Individual state prison growth has had a large collective effect on the rise of the U.S. prison population. In most states, factors including “tough on crime” politics, racial animus, public sentiment about drugs, and willingness to expand the prison industry led to harsher sentencing policies.3 In turn, poor prison conditions, budgetary problems, and many other crises arose from the new influx of incarcerated people those policies created.4

While “state-level policy choices have been the largest driver of our unprecedented national experiment with mass incarceration, […] not every state has contributed equally or consistently to this phenomenon.”5 Some states worked to deliberately control the expansion of correctional populations and predict future needs. As incarceration rates were rising, so were the number of states with sentencing commissions and guidelines; these institutions allowed for more intentional and considerate policymaking.6 However, there has been a debate about whether the goal of guidelines is to slow or reduce prison growth or merely to allocate enough resources towards further growth.7 For further information, see Why Have U.S. State and Federal Jurisdictions Enacted Sentencing Guidelines?

Two main objectives of most guidelines schemes were (and are) to enhance uniformity and fairness and to properly plan and budget for future correctional populations. States like North Carolina, Minnesota, and Washington went further and began to operate under a “population constraint” model, making certain that “the number of inmates sentenced to prison would not exceed the capacity of state prisons to hold them.”8 It is important to note, however, that while some states wanted to control growth and spending, others were more concerned with just having enough information to plan for new prisons and calculate a correctional budget. 

Sentencing experts consider the use of resource management tools in guidelines to be a best practice in the field. The Model Penal Code: Sentencing, for example, recommends that jurisdictions begin with an “omnibus” review of the current sentencing system; including an assessment of the adequacy of correctional resources.9 It further suggests that in drafting or amending guidelines, commissions should make use of correctional population forecasting and produce sentencing schemes that the existing state and local infrastructure can accommodate.10

Sentencing policy has begun to shift in many states and in 2009, the prison population decreased for the first time in 38 years. Large budget shortfalls in the wake of the Great Recession caused some population decrease by forcing states to release prisoners. In addition, the cumulative - and sometimes delayed - effects of policies enacted when “states began to realize they could effectively reduce their prison populations, and save public funds, without sacrificing public safety,” also drove the reduction.11 However, it is difficult to know the exact amount of influence sentencing guidelines had on either slowing or reversing prison growth in the states where they were present. This is in part because scholars have found it difficult to isolate the effects of the guidelines from the effects other policies also designed to do the same things.12

In 1995, a study compared prison population growth in nine states with presumptive sentencing guidelines before and after the guidelines were put into effect.13 After controlling for various factors,14 the study found that states with presumptive guidelines focused on population management curbed their prison growth rates. A 2004 study began with the hypothesis that “over time, guidelines that link sentencing decisions to correctional resources help to mitigate prison populations, while those that do not tend to contribute to growth in that area.”15 Controlling for various factors,16 the results of the study suggested that “to ensure that mandatory guidelines do not increase commitment and incarceration rates, lawmakers must explicitly link sentencing recommendations to available correctional resources.”17

Other researchers have focused on sentencing guidelines more generally and their effect on prison populations. One study that analyzed a variety of sentencing policy reforms concluded that, in particular, presumptive guidelines in states that limit or abolish parole release discretion tended to stem prison growth.18 Another more recent study also suggested a similar outcome: that sentencing guidelines “taken in combination with other reforms [particularly prison release reforms] tended to reduce imprisonment growth over indeterminate sentencing.”19 This study also found that sentencing reforms like truth-in-sentencing enacted outside of a guidelines system tended to increase the prison population.20

Apart from academic studies, anecdotal evidence shows that some individual state systems have benefitted significantly from resource management oriented guidelines. For example, North Carolina was able to use sentencing guidelines that focused on diversion programming and reserving prison beds for high-risk offenders to maintain a prison growth rate between 1993 and 2013 that was well below the national average.21 In Kansas, the state’s unique prison-overcrowding early warning system22 (described further in the table below) made politicians and state officials hesitant to advocate expansive correctional policies. This drove a marked decrease in the rate of prison growth throughout the 1990s; Kansas is currently also below the national average in incarceration.23

It appears that sentencing guidelines that consider resource management do work, especially as part of a concerted, intentional strategy to spend money and use prison beds more wisely. Today, the language of guidelines statutes universally requires some consideration of these factors but varies widely. In some jurisdictions like Kansas, there are complex population projections and fiscal calculations strongly guiding state policy.24 In others, such as Delaware, there is simply a mandate to “consider” resource availability and cost.25

The table below presents the current statutory or policy language in each jurisdiction. For some jurisdictions, there are also examples of typical Commission work products related to resource management, including annual prison projections, legislative fiscal notes, and other documents. This information may be useful in gaining further understanding this important topic.

Jurisdiction Active? Mandate  Related Links
Alabama Yes The Commission’s enabling statute identified the prevention of prison overcrowding as a purpose of structured sentencing in Alabama.26 Additionally, the Alabama Legislature identified the preservation of inmate beds and space for violent offenders as a target goal of the statewide sentencing system.27 Alabama Sentencing Commission 2017 Report 28
Arkansas Yes The Commission must work with the Board of Corrections to lead correctional strategic planning for the state. In that role, one aspect of the Commission’s mandate is to “monitor compliance with sentencing standards, assess their impact on the correctional resources of the state with the assistance of the board, and determine if the standards further the adopted sentencing policy goals of the state.” The commission must also “determine the feasibility, impact on resources, and budget consequences of any proposed or existing legislation affecting sentence length.”29

Arkansas Sentencing Commission Sample Fiscal Note30

 

Arkansas Adult Secure Population Projection Report 2016-202631

D.C. Yes Pursuant to statute, any recommend changes by the Commission must take “existing correctional and supervisory resources” into account, and the commission must not recommend the changes unless it has determined that the costs “would be commensurate with the benefits to criminal justice administration . . .”32 Note that under the 1997 National Capital Revitalization and Self-Government Improvement Act all felony defendants who receive a prison sentence are transferred to the Federal Bureau of Prisons.33 The federal government has also assumed financial responsibility for the courts, pretrial services, court services, and offender supervision.34 Thus, the District of Columbia itself is not burdened with many of the costs associated with sentencing and criminal justice. Report of the District of Columbia Advisory Commission on Sentencing 200035
Delaware Yes The Commission is required by statute to construct the guidelines “with due regard for resource availability and cost.”36 -
Federal Yes The enabling statute requires the Commission, when drafting or revising the guidelines, to “take into account the nature and capacity of the penal, correctional, and other facilities and services available.” The Commission is further directed to “make recommendations concerning any change or expansion in the nature or capacity of such facilities and services that might become necessary as a result of the guidelines” and is required to formulate the guidelines so as to “minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.”37 However, the Commission has not given strong emphasis to these goals, and as of December 2015, federal prison populations operate at 120 percent of their highest rated capacity.38 -
Florida No While there is no active sentencing commission, statutes enacted at the time of sentencing reform still dictate that because the capacities of state and local correctional facilities are finite, use of incarceration sanctions should be limited to offenders convicted of offenses that are more serious or offenders with longer criminal histories. To ensure this, sanctions used in felon sentencing should be the least restrictive necessary to achieve the purposes of the sentence.39 -
Kansas Yes The Commission is directed by statute to provide a fiscal impact and correctional resource statement for all bills amending the Kansas Criminal Code, and to make inmate population projections based on existing law at least annually. If any projection shows that total prison capacity will be exceeded within two years, the Sentencing Commission is directed to propose modifications to the guidelines or other laws in order to lower the total prison population and avoid overcrowding. Such changes must be submitted to the legislature for approval.40 The Commission must also propose modifications if the secretary of corrections reports that prisons have reached 90% or more of their overall capacity.41

Kansas Sentencing Commission FY 2017 Population Projections42

 

Kansas Sentencing Commission Sample Fiscal Note43

Maryland Yes The Guidelines must prioritize the use of correctional resources for the incarceration of violent and career offenders.44 The Commission must also create and use a “correctional population simulation model.” The model helps determine what State and local correctional resources are required under current conditions, and what resources would be required to carry out recommended changes to the sentencing guidelines. If the recommendations would result in inmate populations exceeding operating capacities of available facilities, the Commission must present additional sentencing model alternatives.45 Finally, the Commission must contribute to the legislative process by preparing fiscal and statistical statements on how proposed laws would affect sentencing and corrections practice.46 Maryland State Commission on Criminal Sentencing Policy Sample Fiscal Note47
Mass.  Yes The Commission must ration correctional capacity to afford sufficient capacity to incarcerate violent offenders and to prevent the prison population in the commonwealth from exceeding the capacity of the prisons. The Commission must also evaluate the performance of that rationing annually, and make appropriate remedial recommendations to the legislature.48
Mass. Sentencing Commission Survey of Sentencing Practices FY 201349
Michigan Yes50
The Commission, in cooperation with the Department of Corrections, must “collect, analyze, and compile data and make projections regarding the populations and capacities of state and local correctional facilities, the impact of the sentencing guidelines and other laws, rules, and policies on those populations and capacities, and the effectiveness of efforts to reduce recidivism.”51 The Commission must also develop proposed modifications to the guidelines that consider the projected impact on state and local correctional facilities. Further, it must recognize the availability of beds in local corrections systems and work in partnership with those systems to preserve local funding mechanisms.52 -
Minnesota Yes The enabling statute requires the Commission, when drafting or revising the guidelines, to consider existing correctional resources, including prison and jail capacities.53 Prior to 1989 the statute required the Commission to take this factor into “substantial consideration.” The Commission identified avoidance of prison overcrowding as a major goal, and planned to never exceed 95 percent of projected capacity. The Commission also designed the Guidelines so as to increase the number of violent (“person”) offenders sent to prison, and decrease the number of non-violent offenders.54 Minnesota Sentencing Guidelines Commission Report on Sentencing Practices 201055
N. Carolina Yes The Commission initially developed a set of five principles to guide sentencing reforms, and two identified resource management as a goal. First, “[s]entencing policies should set resource priorities: The use of prisons and jails should be prioritized first for violent and repeat offenders and community-based programs should be first utilized for nonviolent offenders with little or no prior record.” Second, “[s]entencing policies should be balanced with correctional resources: Sentencing policies should be supported by adequate prison, jail, and community-based resources.”56 Legislators are required to consider the Commission’s projections when proposing any change in law that could cause a net increase in incarceration length or the number of offenders incarcerated.57 North Carolina Sentencing and Policy Advisory Commission Prison Population Projections FY 2017 to FY 2026
Ohio  Yes The enabling statute for the Commission required that it produce guidelines that “assist in the management of prison overcrowding and correctional resources.” The Commission was also required to project the impact of the sentencing structure it originally proposed on the capacities of existing correctional facilities.58 The Commission must also assist the legislature by determining the cost and effects of any proposed changes to the sentencing structure.59 -
Oregon Yes The 1987 enabling statute provided that the Criminal Justice Council, in developing the new guidelines, should take into consideration “the effective capacity of state and local correctional facilities and other sentencing sanctions available.”60 The current commission’s statutory mandate specifies that the commission’s long-range plans must include recommendations regarding: capacity, utilization, and type of state and local prison and jail facilities; alternatives to the use of prison and jail facilities; appropriate use of existing facilities and programs; and whether additional or different facilities and programs are necessary.61 The guidelines themselves emphasize the importance of setting priorities for and avoiding overcrowding in prisons and jails.62 -
Penn. Yes The Commission’s enabling statute does not explicitly identify resource management as a goal, but it does provide for consideration of the resource impact of proposed modifications or changes to the guidelines.63 -
Tenn. No Tennessee no longer has an active commission, but “in recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the law and morals of society and evincing failure of past efforts of rehabilitation shall be given first priority regarding sentencing involving incarceration [...]”64 -
Utah  Yes The enabling statute declares that Sentencing Guidelines and recommendations are to “relate sentencing practices and correctional resources.”65 In 2012, the Commission released a policy statement indicating its sensitivity to the scarcity of available sanctioning resources.66 More recently, the Commission stated that they intend the 2016 sentencing guidelines to "provide a means of identifying and allocating required resources."67 -
Virginia Yes

The Commission must monitor felony sentence lengths, crime trends, correctional facility population trends, and correctional resources. It must also make recommendations regarding projected correctional facilities capacity and related correctional resource needs.68 Additionally, the Commission is required to prepare a fiscal impact statement reflecting the operating costs attributable to any bill which would result in a net increase in periods of imprisonment in state adult correctional facilities. The fiscal impact statement must detail any increases or decreases in offender population, as well as any necessary adjustments in guideline midpoints.69

Virginia Criminal Sentencing Commission 2016 Annual Report70

 

(see page 11 on population forecasting)

Washington Yes Washington’s sentencing guidelines system is directed to make frugal use of state and local government resources.71 -

Authors

Alexis Lee Watts
Research Attorney