GateHouse: The knock on truth-in-sentencing

Matthew T. Mangino
GateHouse News Service
March 28, 2014
During the violence-laden years between 1984 and 1996, policymakers scrambled to find a way to throttle crime. In 1991, the national murder rate was 9.8 per 100,000 people. By 2012, the rate fell to 4.7, according to FBI data.
A byproduct of the violence was a new sentencing strategy known as truth-in-sentencing. The laws were enacted as a means to insure that offenders served time in prison consistent with the sentence imposed. The U.S. Department of Justice, Bureau of Justice Assistance found that on average prisoners served only about 44 percent of their sentences in the earlier 1990s.
Washington state enacted the first truth-in-sentencing law in 1984. The law required that offenders serve 85 percent of the sentence imposed. Later, Congress adopted a grant program to incentivize truth-in-sentencing. Twenty-seven states qualified for funding by 1998.
Prior to truth-in-sentencing, states generally permitted parole boards to determine when an offender would be released from prison. The judge would impose a sentence range, for instance, four years to eight years, but the parole board would decide when the inmate was released.
With indeterminate sentencing the inmate stays behind bars for at least the minimum portion of the sentence. In some jurisdictions there may be some incentives available to get the inmate out even before his minimum, however the length of the sentence to be served is no longer up to a judge.
As discretion in sentencing and release policies drew criticism, namely sentencing and parole were too soft on criminals, states developed sentencing guidelines. The guidelines were created to eliminate disparity based on geography and demographics. The violence also ushered in mandatory minimum sentencing and sentence enhancements for using a weapon or, for instance, selling drugs near a school.
Although some observers complained that indeterminate sentencing was soft on criminals, in some states lawyers and judges falsely clung to the myth that criminals, particularly violent criminals, were being held by parole boards until completing about 85 percent of their sentence.
Pennsylvania uses indeterminate sentencing. Even those convicted of the most serious crimes in Pennsylvania tend to be paroled at about the same point in their sentences as other offenders. According to the Allentown Morning Call, inmates sentenced to five to 10 years for crimes like aggravated assault were out in six years on average, not 8 1/2 years as many judges and lawyers believed.
“It's intellectual laziness on people's part," Bucks County District Attorney David Heckler told the Morning Call. He labeled it "baloney" that someone on the bench would cite a number for which he's never seen statistical backing.
The problem goes beyond exaggerating the length of a sentence. Recently, Philadelphia Common Pleas Court Judge Benjamin Lerner testified before the state sentencing commission that the system lacks transparency and truth-in-sentencing. He said he is often asked at sentencings how long a defendant will serve. He told the Philadelphia Inquirer, it is one question “I can't answer."
However, the knock on truth-in-sentencing is that it has clogged prisons and strained state budgets. In 1995, Mississippi adopted a truth-in-sentencing law. The state’s law required all inmates sentenced to state prison must serve at least 85 percent of their term before they could be considered for release.
As a result, state prison population more than doubled and corrections costs increased three-fold. According to the National Conference of State Legislatures, lawmakers reinstated discretionary parole in 2008. The new provision was applied retroactively providing approximately 12 percent of Mississippi’s prison population with immediate eligibility for parole consideration.
In several states, truth-in-sentencing laws have been amended, enabling prisoners to be considered for early release, according to The American Prospect. Democrats and Republicans in a number of states have joined forces to reform sentencing and community supervision with an eye toward saving money and giving offenders a second chance.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
Visit the Column