Prison Conditions and Criminal Sentencing in Kansas: A Public Policy Dialogue

Recent theories oflaw and public policy have stressed that judicial, executive and legislative roles can best be understood in relationship to each other. Instead of independently declaring or enforcing rights and rules, judges, administrators and legislators participate in a dialogue, seeking mutual understanding. 1 Effective dialogue, in tum, embodies the democratic process. The evolution of criminal sentencing policies demonstrates the dialogue among participants in the policymaking process. As conditions change, administrators seek in rapid responses based upon their direct experience with the system. The legislative reaction mayor may not be consistent with the perspective ofthe administrators. When administrative actions or the legislative response pushes the outer boundaries of acceptable public policy, the judiciary steps in. Actions and reactions take place continuously within both the state and federal branches of government. The Kansas record illustrates these interactions. Our history provides a guide to future policy changes which will be part of an ongoing effort to establish and maintain a rational system of criminal justice. My perspective on these issues has been shaped by experience. I became involved with criminal sentencing policies as a lawyer appointed to represent inmates who were challenging prison conditions in the State of Kansas. For nineteen years I worked on a case that, before it ended, involved William J. Rich is Professor of Law at Washburn virtually all aspects of life in prison. In University School of Law. This article began as a keynote address presented to the 200 I Conference the course of that litigation, I became of the National Association of Sentencing convinced that development of rational Commissions. I wish to thank my colleagues, sentencing policies was key to resolving including Stephen Kessler, Dwight Corrin, Roger fundamental problems in prisons, and Theis, Lisa Nathanson and Michael Kaye, for their that judicial action could provide the input as we worked together on Kansas prison stimulus needed to reform irrational litigation, along with a large number of Washburn sentencing practices. These observations are based upon certain assumptions regarding the meaning of rationality in sentencing. I use that phrase to include three basic law students who contributed to that effort. I appreciate the research assistance provided by Richard McNelley. I also want to acknowledge assistance provided during the course of litigation by the Edna McConnell Clark Foundation and the ACLU National Prison Project.