Monday, January 25, 2010

More legislative idiocy

When a defendant is sentenced to probation in Kansas, the judge states what the underlying prison term is.  This is the amount of time the defendant will serve if he violates his probation.  This number is largely established by statute, with only some room for the district court to go down.  But, often that is stated several months to a year or more before the eventual revocation.  By that time, the defendant's circumstances may have changed in such a way that his best interests would be served by actually spending some lesser amount of time in prison.  Or the probation violation may be something minor, not necessarily warranting the full prison term originally ordered.  So the probation revocation statute currently allows the judge to impose a lesser sentence at that revocation hearing, without as many restrictions as exist at the initial sentencing stage.  Seems like a pretty reasonable provision to me, allowing a little more discretion for a judge in the highly-discretionary realm of probation and probation revocations.

But I should have known that a reasonable, discretionary, defendant-friendly sentencing provision would be the target of some tough-on-crime legislator.  A very dedicated colleague of mine keeps a close eye on criminal law proposals floating around the statehouse each session.  She sends out frequent e-mails to keep the rest of her criminal defense buddies up-to-date on proposals.  (H/t to her if she reads this.)  Today's e-mail included HB 2489 which would "fix" this statute to take away the trial court's ability to impose a lesser sentence upon revocation.

Sigh.  This state is broke.  Really, really broke.  We've slashed our budget over and over and over.  We've cut all services to the bone and are looking at having to cut again.  (This is not the time to rant about the need to increase revenue, but, really Legislature, we need to increase revenue!)  Just last week, the Department of Corrections was publicly discussing the dire straits they're facing.  So, yes, this is definitely the time to propose legislation that would cost money.  Because every additional month a defendant has to serve in prison costs lots of money.  It's a great idea to be adding more inmates with longer sentences to the state's stressed prison system.  Not to mention expending legislative resources to deal with this proposal, resources that could be focused on more pressing needs (like increasing revenue!).

And, of course, there's no benefit to be had from this proposed legislation.  Longer prison sentences don't actually make us safer, especially not for the sort of first-time or low-level offenders who are placed on probation.  The judge at revocation is in a much better position to decide what prison sentence is really best for the defendant at that time.  It makes tremendous sense to allow the judge the discretion to revisit the sentence he or she initially ordered in case that sentence is actually higher than the judge now feels is appropriate.

So, we could stick with the current statute that saves money and prison space and allows the revoking judge the greatest amount of flexibility to deal with the defendant's circumstances at the time of revocation.  Or we could change the law, which would cost money we don't have and would require judges to be clairvoyant when setting the underlying prison terms for probationers knowing there won't be any opportunity to reassess that term in the future. 

Just like with the death penalty debate, this proposal is more about grand-standing than about sensible, cost-effective crime and sentencing policy.


Meryl said...

Meanwhile, although I can't find a news article with the specifics yet, early word from the folks in SE Kansas is that "The Farm", a company that facilitates and oversees foster kids/families, is being shut down because of funding cuts. Also the allowance that goes to foster families to feed/clothe/support the foster kids is being drastically cut, which means that some of those families will be unable to afford to foster anymore. Talk about dumb ways to try to save a buck!

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