DA Stedman Testimony on Sentencing Reform

April 29, 2013

Good morning, Chairmen Greenleaf and Leach, Senator Stack, and other members of the Senate Judiciary Committee. My name is Craig Stedman, and I am the District Attorney of Lancaster County. I also practiced in a limited capacity as a Special Assistant United States Attorney and prosecuted federal firearms and drug related crimes. Thank you for the opportunity to speak with you today regarding sentencing reforms in Pennsylvania.

In many ways, sentences are the cornerstone of the criminal justice system. While a trial decides the question of guilt or innocence, the objectives of a sentence have become more varied and complex. Sentences seek to appropriately punish an offender as well as deter others from committing similar crimes. Other sentences are designed merely to incapacitate the offender. By achieving these goals, sentences protect the community from additional harm. Sentences also seek to restore the victim financially as well as provide them with some closure and a sense that justice has been done. Of course, sentences for many offenders also offer a meaningful chance at rehabilitation. Regardless of purpose, all sentences should be swift and certain.

Our goal as prosecutors is to advocate for a just sentence that will accomplish as many of these goals as possible. Pennsylvania’s sentencing practices must incorporate what works and exclude that which does not. Our sentences must align with current research and best practices. Indeed, thanks to the work of this Committee, our Sentencing Commission is currently beginning to implement one such best practice: risk guidelines for use in our sentencing system. The discussion we are having today is critical to know what works and what doesn’t, and how application of this knowledge would actually play out in the halls of justice. So on behalf of my colleagues around the Commonwealth, I sincerely appreciate the efforts of this Committee in bringing us together to ensure that Pennsylvania sentencing law reflect modern best practices.

I.  Flat Versus Indeterminate Sentences

First, allow me to offer some comments on the issue of determinate sentences, as I understand that topic is of particular interest to this Committee.

Currently, Pennsylvania imposes indeterminate sentences-meaning the judge imposes a range of potential incarceration. Under the law, the maximum sentence must be at least twice the minimum sentence. The offender will be eligible for parole consideration at his minimum date, but there is no right to parole. Instead, the date of release is determined by the parole board and his or her release date, therefore, is uncertain. If the offender is never granted parole, he will be incarcerated until the expiration of his maximum term of sentence. Offenders will serve a wide range of sentences as determined by the judge.

This is in contrast to a determinate-or flat-sentencing scheme. Flat sentences have a fixed prison-release date for each offense as determined by the legislature with limited allowances for good-time credit. The parole board has little or no role in determinate sentencing schemes. “Good time” is routinely awarded to inmates and can be reasonably calculated at the time the sentence is imposed. In that respect, “Good time” is somewhat similar to our risk recidivism risk reduction (RRRI) program.

About half of states and the federal system have a determinate sentencing system.

A.  The Advantages of a Determinate Sentencing System: Certainty and Consistency

Some suggest that Pennsylvania would be better served by transitioning to a determinate sentencing scheme. There are indeed some aspects of such a system that are appealing. For instance, determinate sentences are thought to provide a greater sense of certainty. Providing all parties with a definite release date is thought to reduce the anxiety and frustration that can be associated with indeterminate sentences. A definite release date is also thought by some to aid in reintegrating the offender back into the community, because it is easier to plan for post-incarceration services when release dates are foreseeable far in advance.

Some believe indeterminate sentences usurp authority of the sentencing judge and relegate it to the parole boards. They argue that judicial determinations should not be supplanted by the view of a parole board, particularly when the parole process is often thought to lack transparency.

Also, some believe that determinate sentences are fairer and have a greater deterrent effect because they are thought to be more consistent. Offenders who commit similar crimes are likely to be released after serving the same amount of time. Such consistency increases public awareness of the penalties associated with a particular crime.

Notwithstanding these potential advantages, my colleagues and I believe that the advantages of our current indeterminate sentencing system far outweigh any disadvantages.

B.  The Advantages of an Indeterminate Sentencing System: Individualized, Incentivizing, and Greater Public Protections

First, while there must be some consistency between sentences, uniform sentences are not necessarily fair sentences. Our indeterminate sentencing system provides the flexibility to permit individualized sentences that reflect, among other factors, the background of the offender, his own blameworthiness for the crime, his potential risk of danger upon release, and the chances for successful rehabilitation. Different people respond differently to incarceration, and some offenders will be rehabilitated faster than others. Those who show the most progress are typically paroled sooner than those who fail at rehabilitation opportunities.

Thus, one of the great advantages of an indeterminate sentencing scheme is that an offender’s parole date is largely determined by his prison behavior. It is an incredibly powerful incentive for an offender to be able to reduce his incarceration time by complying with prison rules and rehabilitation opportunities. Conversely, when an inmate faces a flat determinate sentence, there is much less incentive for him to cooperate or participate, and he or she is thus more likely to reoffend.

A similar incentive exists after release. When an offender is paroled on an indeterminate sentence, it is likely that he faces a meaningful period of parole-and, if he violates that parole, he faces consequences, including sanctions or revocation back to a community corrections center or state prison. The threat of parole revocation often compels offenders to not commit new crimes post-release. On the other hand, inmates who are paroled from a flat sentence have often served at least 85% or more of their maximum sentence. As a result, violating parole in a flat sentence lacks the consequences, and thus the incentives, that exist in an indeterminate sentence.

The increased duration of parole is another advantage of indeterminate sentences. Less parole time necessarily means less after-care and surveillance upon reintegration back into society. States with flat sentences have fewer inmates on parole, for shorter periods of time, and parole funding and resources are proportionately smaller. This all leads to fewer reentry programs and the greater potential for recidivism. Simply put, the more offenders who spend time on parole, the greater the protection for the public. In fact, numerous defendants have openly admitted to me that they needed a significant parole period hanging over them to keep them from reoffending.

Under current law, our Board of Probation and Parole has flexibility to tailor the scope and depth of parole services based on the offender. Administrative parole, which is less intensive and more of a regularly scheduled check-in is permitted, is available for less violent offenders allowing PBPP to focus more resources on the more violent and dangerous offenders.

Indeterminate sentencing also more readily allows for greater flexibility to prosecutors to negotiate cases on an individual basis and craft case specific plea bargains which fit the individual circumstances of the case. Each case and each defendant is different and more justice will be achieved in sentencing schemes which allow prosecutors to allow for such distinctions.

II.  Other Potential Suggested Reform

I hope my comments demonstrate that there is no one easy answer. However, it is clear that while our current system may not be perfect, it does possess many advantages. Any significant reform in this area should be framed carefully, and should incorporate available knowledge, research and best practices.

Further, I believe we can achieve many of the truth in sentencing goals of determinate sentencing by implementing relatively modest reforms of our sentencing guidelines.

A.  Make Pennsylvania’s Sentencing Guidelines More Comprehensive by Broadening the Range of Offense Gravity Scores

Currently, guideline sentence recommendations are determined according to a grid which factors in the base level offense gravity score and the prior record score of the offender. The guidelines are not mandatory and a judge may ignore them in certain cases. As a result, the process does lack certainty.

One way we may be able to better accomplish the goal of more truth in sentencing, among other things, is by making Pennsylvania’s sentencing guidelines more comprehensive. Currently, each crime is assigned an offense gravity score, ranging from 1 to 14. Minor crimes are assigned a low score and very serious crimes are assigned the highest scores. By way of comparison, the federal sentencing guidelines gravity scores range from 1 to 43.

If the number of offense gravity scores is increased in Pennsylvania, it will allow for more meaningful distinctions for each crime and the guidelines would more accurately reflect the actual gravity of each case. The smaller scale of the current guidelines quite naturally limits the ability to better distinguish between offenses. If the state did increase the scale similar to the federal range, the recommended sentence ranges would be more narrowly tailored to the actual crime. In turn, because the guidelines would thus be that much more meaningful, sentences are likely to be more consistent as well as certain.

B.  Allow Conduct-Related Adjustments Upward and Downward to the Guidelines to Increase Fairness

In addition to allowing for more meaningful distinctions between crimes, increasing the gravity score scale also permits flexibility for common sense and fair adjustments that our current limited scale does not realistically allow. Instead, if the guidelines were more comprehensive, and the range of offense gravity scores was more expansive, some of these aggravating and mitigating factors could be used to directly and demonstrably impact the offense gravity score such that there is more truth in sentencing.

I believe it safe to say that all agree that a defendant who accepts responsibility for his or her actions deserves consideration for the same. Acceptance of responsibility spares the Commonwealth the expense of a trial, spares witnesses from further inconvenience, and spares the victim the trauma of reliving the crime. In addition, acceptance of responsibility is often a key prerequisite to rehabilitation.

Despite these facts, there is no built-in reduction to the gravity score for acceptance of responsibility in our guidelines. By contrast, the federal guidelines do have a clear and specifically designated two point reduction in gravity score for defendants who accept responsibility. All parties thus know exactly what the guidelines are if the charges are contested and what they are if they accept responsibility. By automatically reducing the offense gravity score by a known amount, defendants would be assured that a plea has a demonstrable and direct result.

In addition, defendants often plead guilty on the eve of trial and it is not uncommon for defendants to plead guilty midway through trial. Under either scenario, significant resources have been invested to prepare for prosecution and diverted away from other cases and victims. Thus, the guidelines should not only incentivize acceptance of responsibility, but should also provide an incentive to those who do so earlier in the process. Such acts save prosecutorial resources, both for trials and appeals, and allow the court to allocate their resources more efficiently. The federal guidelines have a clear one point additional reduction for these cases.

It should be noted that the larger scale of the federal gravity scores more readily allows for the above reductions. In my opinion, the current state guidelines are too limited in scale to accommodate similar reductions because their impact would be too great.

In addition to the above described adjustments, there are many other potential meaningful adjustments based on each individual case which could be factored into the guidelines. For example, under the current state guidelines, if a person commits a burglary of an occupied home, the offense gravity score is a 9. It is a 9 regardless of whether the offender threatened or used violence to commit the crime; regardless of whether the offender took anything from the home; regardless of whether there were co-conspirators; regardless of whether the offender used a weapon-and the list goes on. However, if such distinguishing characteristics were factored into the offense gravity score, it would better ensure that cases with similar facts receive similar sentences.

Along those same lines, if an offender commits the very same offense repeatedly, he should face an increased offense gravity score. The rationale is two-fold: first, the offender was obviously not deterred by prior sentences; and second, the offender’s criminal sophistication and capacity for violence likely increase with each new offense. Thus, whereas a burglary has an offense gravity score of 9 for a first offense, that offense gravity score should automatically increase for each additional burglary conviction by that same offender.

This particular proposal would be most successful if the legislature also considers raising the maximum sentence for a crime when the offender has repeatedly committed the same crime. Such provisions are necessary for serial offenders whose guidelines could potentially be greater than the statutory maximum for the offense.

Finally, we could also consider allowing a reduction in the offense gravity score if the offender substantially cooperates with law enforcement. This cooperation could take several forms. For instance, offering information about other crimes, assisting with the investigation and prosecution of other criminals, and fully cooperating with law enforcement could all be reasons for a gravity score reduction. The corresponding adjustment will depend on the nature and extent of the defendant’s cooperation.

C.  Expand the Range for the Prior Record Score and Allow Factors in the Offender’s Background to Increase or Decrease That Score Such That the Sentence is More Effective and Fair

Expanding the range and scale of the prior record score would allow for more meaningful offender specific distinctions. The maximum current numeric prior record score is a 5. With the exception of those who are repeat violent or felony 1 or felony 2 offenders, once an offender reaches a score of 5 it stays at 5 regardless of how many new crimes he commits. As a result, Offender A, who has priors for burglary and drugs, has the same prior record score as Offender B, who has the same priors for burglary and drugs but also has fifteen other theft convictions. Making the prior record scale larger would minimize this issue and increase fairness in sentencing.

In order to increase fairness and truth in sentencing, the current prior record score calculations should also be enhanced to allow for meaningful common sense distinctions upward and downward to be built into the guidelines, which do not currently exist.

If an offender is or has recently been under supervision at the time of the current offense, the prior record score should be automatically raised. For example, if an offender is released from prison after serving a sentence and two months later commits yet another offense, his prior record score ought to be automatically increased a prescribed amount.

On the other hand, if there has been a significant lapse in time since an offender’s last conviction, the prior record score should be decreased to reflect this lapse. For instance, if a 65-year-old man has a current offense of theft, the guidelines would call for probation for a first time offender. However, if the offender was convicted twice of drug-dealing in 1970, the state guidelines now contemplate a state prison sentence even if he has no other offense in the intervening 43 years. If the prior record score were decreased by known amounts over the duration of time that the offender was arrest-free, the resulting sentencing range would be more fair and appropriate.

For repeat violent offenders, we believe the parole options should be limited, however, because they have had numerous chances and failed to behave lawfully. Within the structure of the current Sentencing Guidelines, the minimum sentence imposed should be up to 85% of the maximum sentence imposed, not the current 50% rule. Such a change would target the worst of the worst, allow PBPP to focus on offenders more amenable to supervision and rehabilitation, as well as provide more predictability.

D.  Other Considerations

Finally, I urge the state to consider implementing a computerized system, similar to the Federal Sentencing Guidelines Calculator (available at www.sentencing.us). This calculator is quite simple in its design and requires the user to enter certain information about a case, after which the calculator determines the proper guidelines.

Such a calculator would be advantageous for several reasons. First, as the sentencing guidelines become more comprehensive, and there are more enhancements and credits, there is greater likelihood for human error and a greater potential for unfair results. Second, a calculator would aid all interested parties in understanding the possible sentencing ranges for different outcomes of the case. For instance, a defense attorney could clearly show a defendant the impact that cooperation or a guilty plea would have on the sentence. This imparts the element of certainty that our current system sometimes lack.

I have cited the federal guidelines numerous times. I want to be clear that I do not advocate for this state to adopt the federal guidelines, because they carry some of their own issues. Clearly no one solution will cure all ills. I merely refer to some of the more common sense federal concepts our justice system might benefit from were they to be considered and adopted in some fashion.

To be sure, these ideas are only meant to begin the discussion, and all would require further consideration, as well as the input of the Sentencing Commission. I am not advocating these ideas as formal positions, but instead as an outline of topics we can begin to discuss with other stakeholders, including and especially the outstanding Executive Director of the Pennsylvania Sentencing Commission, Mark Bergstrom.

I very much appreciate the opportunity to speak with you this morning regarding this important topic, and I hope that my comments were helpful. I am happy to answer any questions you may have.