By Jacob Rosenberg
In a move that could reduce departures from standard criminal sentences and reduce the growth of the state’s prison population, the Arkansas Sentencing Commission recently approved a new standards grid that will go into effect Jan. 1, 2018.
The grid helps judges and prosecutors determine appropriate sentences by taking into account an offense’s seriousness and an offender’s criminal history. The commission gives offenses a seriousness rating, from 1 to 10, which is matched with an offender’s criminal history score, from 0 to 5-plus. The criminal history score is a calculation of the seriousness level of previous felonies. The number produced from the criminal history score and offense level of the crime suggests a typical sentence.
Prosecutors, judges and defense attorneys who are negotiating plea deals consult the grid. It does not affect jury trials, and it is not mandatory. The biggest alteration to the grid is it now gives a sentencing range. Before, the grid had one number for a recommended prison sentence. Under this regime, for example, if someone was negotiating a plea for trafficking a minor — a class Y felony with a seriousness level of 9 — and the offender had a criminal history score of 3, the grid would suggest a sentence of 480 months (40 years) with the Arkansas Department of Correction. The new grid, however, would recommend a sentence between 336 to 540 months (or 28 to 45 years) for that offender.
The grid was changed in response to suggestions from the nonprofit Council of State Government and its Justice Center project. Over 18 months, the nonprofit researched Arkansas’s criminal justice system and made presentations before the Legislative Criminal Justice Oversight Task Force, which ultimately adopted CSG’s recommendations. Much of the plan became Act 423, “The Criminal Justice Efficiency and Safety Act,” earlier this year.
CSG found that 1,015 people in 2014 were sent to prison even though the grid suggested alternative sentencing or a Community Correction Center. The number of those who may have gotten prison sentences instead of community service or other alternatives may be higher because many smaller counties do not send the Sentencing Commission information about discrepancies between the grid and actual sentences to the commission.
The guidelines for low-level felonies are not changed by the introduction of ranges, but the hope is that their introduction will make the entire grid more useful, leading to fewer departures from the standard, said Sandy Moll, Sentencing Commission executive director.
Before, when there was just one prescribed sentence, Moll said, “I feel like a lot of the prosecutors, who are the ones offering the plea bargains, were saying, ‘This just doesn’t fit, I can’t just do one number.’
“The range makes it a lot more likely that a presumptive sentence is going to be followed. Therefore it brings a lot more attention to the grid as a whole. I think it’s going to bring all of the grid more in compliance.”
Ken Cassady, a prosecutor in Saline County who was a member of the criminal justice task force, said he uses the grid every day, estimating that he and most state prosecutors in the country negotiate a plea in 90 to 95 percent of their cases. But, Cassady says, the hopes that the state can decrease the prison population by simply releasing more of those incarcerated for low-level felonies on the grid is not accurate.
“I sat through many, many presentations from the Council of State Governments. But, I do it every day. My deputy state prosecutors do it every day. I know the type of folks that are going to prison and it’s not Johnny Smokes-a-Joint,” Cassady said. “That’s a myth.”
Cassady said a sentence may appear to be too high because it doesn’t take into account a plea negotiation in which a prosecutor may agree to a lesser offense but, in return, require a sentence more in line with the original charge. For example, a defense attorney could push for substituting a trafficking charge with another lower drug charge in a plea but agree to a higher sentence than would normally be applied to the lower charge.
“You see people that have been pled down to lesser things, but they look like they’re getting a higher sentence on the grid,” he said. “You’re not taking into account the whole process of a negotiated plea.”
Moll said she understands that the grid will not be perfect for every situation.
“[The grid] is set up knowing you have not accounted for every single crime,” she said. “You know there’s going to be departures.”
Commissioners also noted that the original grid did not account for changes in parole policies.
Laws passed since the grid’s adoption require a prisoner to serve 70 percent of his or her sentence for certain crimes like murder and rape and 100 percent for committing a violent or sexual crime a second time.
Benton County Prosecutor Nathan Smith said that the ranges more accurately account for these rules and give prosecutors “discretion to fix the right sentence within the grid.”
But, he added, that does not mean the new grid will stop long sentences for those who commit crimes like murder and rape. “If you ask me, that’s what prison is for,” he said. “If we are overcrowding, we want to be overcrowding with the worst of the worst.”