Danger and Opportunity: Making Public Safety Job One in Pennsylvania's Indeterminate Sentencing System

• Published date: 01 June 2010
• Date: 01 June 2010
• Author: Mark H. Bergstrom,Joseph Sabino Mistick
• DOI: 10.3818/JRP.12.1.2010.73
• Subject Matter: Special Issue on Sentencing and Corrections in the States

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Danger and Opportunity: Making Public Safety

Job One in Pennsylvania’s Indeterminate

Sentencing System

Mark H. Bergstrom

Pennsylvania Commission on Sentencing

and The Pennsylvania State University

Joseph Sabino Mistick

Duquesne University School of Law and

Pennsylvania Commission on Sentencing

* Abstract

Pennsylvania’s prison population increased annually between 2000 and 2007 by an aver-

age of 3.2%. However, between 2007 and 2008, the change was 9.1%, the highest in the

nation and well above the national average of 0.8%. In 2008, the Pennsylvania General As-

sembly

authorized $800 million for the construction of four new state correctional facilities;

nonetheless, the Department of Corrections has contracted with county facilities to house

about 500 state prisoners, and with other jurisdictions to transfer 2,000 inmates to facilities

out

of state. Both overcrowded facilities and reactionary policies to reduce overcrowding

can have negative impacts on public safety. In an indeterminate sentencing system, efforts

to maintain public safety within the constraints of correctional resources requires funda-

mental changes in sentencing practices and improved coordination with parole decision

making.

In the fall

of 2008, the Pennsylvania General Assembly enacted a comprehensive

package of sentencing and corrections reform legislation, which added to the Pennsylvania

Commission on Sentencing’s existing duties the responsibilities of developing parole guide-

lines. The establishment of integrated guidelines, for consideration at sentencing and at

parole, represents a major departure from the guideline practices of the last three decades

in Pennsylvania. It requires a careful consideration of the role of retribution and predic-

tion in the development of guidelines, the use of actuarial data to forecast future offending

patterns, and the study of outcomes to determine the eff‌icacy of sentencing and parole

programs and practices. However, as has been demonstrated convincingly in other jurisdic-

tions, when done correctly, public safety can be enhanced and correctional costs contained

through a more thoughtful and coordinated use of these evidence-based approaches.

The views expressed in this article are not necessarily the views of the Pennstylvania Commis-

sion on Sentencing.

JUSTICE RESEARCH AND POLICY, Vol. 12, No. 1, 2010

© 2010 Justice Research and Statistics Association

Sp e c i a l iS S u e o n Se n t e n c i n g a n d co r r e c t i o n S i n t h e St a t e S

P

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When the General Assembly created the Pennsylvania Commission on Sentencing

in 1978, prison capacity was not a concern. During the f‌loor debate in the House of

Representatives, the sponsor of the bill stated that the purposes of sentencing guide-

lines were “to make criminal sentences more rational and consistent, to eliminate

unwarranted disparity in sentencing, and to restrict the unfettered discretion we give

to sentencing judges.”1 In fact, the Commission explicitly rejected consideration of

correctional capacity when promulgating the initial guidelines (Kramer & Ulmer,

2009, pp. 16–17), recognizing sentiments at the time about “the perceived leniency

of the Philadelphia judiciary” and more general concerns “about leniency for seri-

ous violent offenders” (Kramer & Ulmer, 2009, p. 16). So, far from concerns about

prison capacity, there was support to increase the use of incarceration. This view

was conf‌irmed when the initial version of the sentencing guidelines was criticized

during public hearings and rejected by the General Assembly as being too lenient

and too restrictive of judicial discretion (Kramer & Ulmer, 2009, pp. 32, 34). With

the statutory requirements for guidelines limited to consideration of the seriousness

of current and prior offenses, and with no formal mandate to consider costs or cor-

rectional capacity, the actions of the Commission during its f‌irst decade were driven

primarily by concerns about proportionality, uniformity, and retribution.

In the aftermath of a riot at the State Correctional Institution at Camp Hill

(SCI-Camp Hill) in October 1989,2 the Legislature provided the Commission with

limited statutory authority to begin to consider correctional capacity. Legislation

enacted in 1990 led to the establishment of two sentencing programs to serve as al-

ternatives to incarceration, state motivational boot camp3 and county intermediate

punishment,4 and to the addition of requirements that the Commission incorporate

into the sentencing guidelines recommendations that targeted eligible offenders for

program participation. While these programs, and the state intermediate punish-

ment program5 enacted more than a decade later, provided statutory support for

some consideration of correctional capacity, the focus was narrow and the recom-

mendations were made within the retributive framework of the sentencing guide-

lines. As a result, the impact was relatively modest and greatly offset over time by

substantial increases in the volume of cases being processed due to enhanced law

1

Pennsylvania House of Representatives. Pennsylvania House Journal, 3130, Septem-

ber 21, 1978.

2

Michael deCourcy Hinds wrote in The New York Times (“Rioters Destroy Nearly

Half the Buildings in a Pennsylvania Prison,” October 28, 1989) that SCI-Camp Hill “was

designed to hold 1,826 inmates but held 2,607 at the time of the riots. Off‌icials describe it

as typical of the crowded prisons in the Pennsylvania system and throughout the country.

As of Sept. 30 [1989], Pennsylvania prisons were about 48-percent over capacity.”

3

Act 1990–215; amended, Act 1996–86. State Motivational Boot Camp Act.

4

Acts 1990–193 and 1990–201; amended, Act 2000–41, Act 2004–233. County Inter-

mediate Punishment Act.

5

Act 2004–112. State Intermediate Punishment Act.