FEAR AND DETERRENCE

Over at Sentencing Law and Policy, Doug Berman directs attention to this column from the NY Times and wonders what his readers think about the 150 year sentence handed down to Bernie Madoff.

In response, I posted this comment.

I suspect, based on very little empirical evidence (though there might be studies), that significant prison sentences can serve as a deterrent to white collar crime where they really don't to street crime (about which I have somewhat more empirical evidence). But sentences that cannot be served seem silly rather than forceful. A formal sentence of life might be more meaningful than any absurd number of years could be. If it required rewriting the statutes, though, I'd be wary, since once Congress gets at that, they're liable to wreak all sorts of havoc. And I don't have much faith in the Sentencing Commission, either.

I'm not changing my mind about that, but I want to say a bit more.

I addressed an aspect of this a couple of weeks ago (here), after his lawyers filed their sentencing memorandum suggesting that he should get 12 years. Then I was looking at victimology and the personalization of criminal law, the idea that the prosecutor and the judge are somehow agents for the victims of crime, that their job is to make victims feel better. But I want to focus now on the effects of sentences.

Let me be clear about this. I'm offering a view from the trenches and a lot of gut feeling rather than any sort of academic analysis. The studies I've read about sentences (not all that many, frankly) have mainly been about whether the death penalty or executions (they're not the same thing) serve as a deterrent.

While some of the studies are suggestive, I think a fair reading is that none of them really prove much of anything. There studies showing that the death penalty and executions deter homicides. There are studies showing that executions actually increase homicides. I think they're a wash. The academic analysis just can't be done properly. The conclusion, then, is that there's no good evidence the death penalty deters homicides, but also no good evidence it doesn't.

So we leave academics and enter the real world. There's no question that some people have killed because of the death penalty. They've killed witnesses in the hope that they wouldn't be convicted and face death. They've killed as part of a plan to be sentenced to death and thereby get, in effect, an assisted suicide. By the same token, it strikes me as self-evident that at least a few people have refrained from killing in order to avoid the risk of a death sentence. On balance, again, it's a wash.

But why? Why shouldn't the ultimate penalty reduce killing? For that matter, why do horribly long sentences not seem to reduce drug trafficking or sexual abuse of kids - or homicides?

CAVEAT: The rest of this is broad generalizations. Lots of street criminals aren't like what I'm about to write. Plenty of white collar criminals aren't like this, either. Don't take any of it personally.

Because people don't expect to get caught. Because people don't think it through and do the cost-benefit analysis that the economists think people do all the time. Because so much street crime is really acting out of passion or fear or bravado rather than calculation. And because the people who do the actual calculating tend to imagine that their calculations will ensure they'll never be convicted.

Moreover, my clients are my clients, for the most part, because they made terrible choices. If they were good at making choices, they wouldn't end up being my clients. Why would we think that harsher penalties will make more thoughtful criminals?

And there's this. The repeat offenders sort of understand that prison is part of the process and just the price of doing business. Hey, if half your family is in custody and the other half has been or likely will be, it may not seem all that daunting. But that's street crime.

Bernie Madoff isn't your basic street criminal. The folks who embezzle and commit tax fraud and engage in multi-million dollar securities shenanigans - or multi-billion dollar ones - the guys at Enron and Adelphia, the Bernie Madoffs of the world, they're different.

They don't expect to get caught, either, of course. And they're quite sure that if they do get caught, they'll get at most a slap on the wrist. (And they don't think much about any of this, anyhow.)

But for them, prison - at least serious prison surrounded by what they'd think of as "real criminals," is something else. You know about real criminals. They're those street criminals I was talking about. The folks Arlo Guthrie was put next to at his draft physical (in his song Alice's Restaurant) when he was asked if he'd ever been arrested, people who

may not be moral enough to join the army aftercommitting your special crime, and there was all kinds of mean nasty uglylooking people on the bench there. Mother rapers. Father stabbers. Fatherrapers! Father rapers sitting right there on the bench next to me! And they was mean and nasty and ugly and horrible crime-type guys sitting on the bench next to me.

The Bernie Madoffs of the world are, mostly, terrified of those guys. They may not exist, but the fear is real.

You give Bernie a life sentence. You hand out a few others. You make clear that life means life and that it means hard time. Maybe, just maybe, you can deter some of those guys.

Now, let's think for a few minutes. Person on death row killed a couple of people without much remorse in the midst, say, of a spree of robberies. Horrible. Deserves condemnation. Bernie Madoff destroyed the lives and hopes of thousands, inflicted some sort of real harm to millions. He did it with a pen and a smile and a string of accountants. Guy on death row did it with a gun.

Who did more harm? Who's more callous? Who is deserving of more punishment?

We don't kill the Bernie Madoffs, and we shouldn't, not any more than we should kill the vicious street punk or the guy who got in over his head and got scared and . . . . Heck, you know the story.

But 150 years? We know that's a sham. It's not a real sentence. He can't serve it and it doesn't really make any broader point. Now, a life sentence, that's something else: I sentence you to die in prison - however long it takes.

That's frightening. Might just deter a few of the white collar criminals.