Wednesday, September 12, 2012

Worser and Worser

Criminal defense lawyer turned federal judge turned Harvard Law School professor Nancy Gertner has an important article/column/post/whateveritis at Cognoscenti, on the WBUR website.
We sentence more people to more time than we used to, she says, not because it serves any rational purpose but because we've largely abandoned the idea of sentencing based on rehabilitation and specific deterrence.  Instead, judges now sentence based on retribution.  The main goal of sentencing is no longer to keep us safe but to punish.
Three decades ago, we considered rehabilitation and specific deterrence to be more important than retribution. And while there were unquestionably problems with that approach, at the very least it enabled a discussion about what punishments made sense to ensure public safety, to minimize recidivism and to balance all of the purposes of sentencing. In addition, it permitted criminal justice experts in various fields – including judges – to participate in a meaningful discussion about crime.
But in the 1980s rehabilitation was discredited. On the eve of sentencing reform in the federal courts, one scholar wrote: “What works? Nothing!” – although he subsequently amended his views. The sentencing focus shifted for the most part to a single purpose: retribution. And for that purpose there were new “experts”: the public. If the most important question had become, “What punishment fits this crime?” Everyone could weigh in. 
And weigh in everyone did.
Now, if all you're concerned about is satisfying public anger or distaste or temper or disgust, if the desire to punish is what drives the system, well, there's no top.  
  • Gee, if that guy only got five years then surely this guy should get 10.
  • 15
  • 20
  • 30
  • life
  • death
  • life and the then death
  • death and then life
Gertner spreads the blame, putting much of it on the media for feeding the public a string of lies and misrepresentations convincing them that tougher, ever tougher sentences are necessary. 
By the late 1980s, crime issues were part and parcel of the political debate — think of the role of the Willie Horton ads in the 1988 presidential election. A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.
Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

Gideon and Greenfield use Gertner's piece as a template, agreeing with and extending her anger.  Matt Brown shares their view, giving it the dynamic touch of moving from the abstract argument to the concrete reality with the story of a supposed honor killing of a young woman and its aftermath.  (I've edited slightly and removed links.)
Her father had apparently became enraged by her lifestyle, which by all accounts seemed to be typical of American girls her age. He ran her over with his SUV in a shopping mall parking lot, and the he fled. Based on the theory that it was a premeditated murder to preserve family honor, prosecutors charged him with first degree murder. He went to trial and was convicted not of the most serious charge, but of the lesser-included offense of second degree murder in addition to counts involving aggravated assault and leaving the scene of the accident.
This is where the case ties in with the posts mentioned above. You see, on April 15, 2011, the judge sentenced him to 16 years on the second degree murder count consecutive to 15 years on the aggravated assault count and 3.5 years on the two leaving the scene of an accident counts. The total sentence was 34.5 years, and he was 50 years old at the time of sentencing. Arizona isn’t like other states where a sentence ends up being a lot less than it might seem. Second degree murder requires flat time. The other counts likely require that he serve 85% at the very least. His exact release date, will be June 13, 2041. He will be over 80 years old. Given the typical impact imprisonment has on longevity, he is effectively serving a life sentence.
Which you'd think might be enough.  But no, Matt quotes Detective Chris Boughey.
I wasn't happy.  Still not. Never will be.
He got off easy, as far as I'm concerned.
Really? Because he could have gotten more time?
Because life isn't long enough?  I've discussed impossible sentences more than once.  (See here, for just one instance.) There are the folks sentenced to repeated executions, to death and then life (or perhaps the other way around), to sentences of multiple century's duration.
To what end?
Is there a lesson, a moral, even a meaning to a sentence that simply cannot be served?  Hard to see what it might be.  Those extra years are numbers for the sake of numbers.
But if we try for some sort of rational sentencing scheme, well then we have actually to figure out what makes sense.
Which requires thought.
And consideration.
And attention to actual evidence rather than spittle.
Sadly, that means we have to deal with the American public which, as Gertner and company point out, isn't really all that concerned with evidence.
After all, the world looks flat.
And the Bible says the world was created in 7 days, so there.
And women don't get pregnant from legitimate rapes, which are kind of like premarital sex.
And Custer died for all of us and Lubbock is ground zero for the UN invasion.
And then there's Osama.  You know, the dead guy.  The one the dems are crowing about having killed.  From Blade Slices, the politics blog Tom Troy writes for the Toledo Blade.
In its poll taken in Ohio Sept. 7-9, PPP says it asked the following question:
Q15 Who do you think deserves more credit for the
killing of Osama bin Laden: Barack Obama or
Mitt Romney?
The answers from Republicans were:
Barack Obama................................................ 38%
Mitt Romney.................................................... 15%
Not sure .......................................................... 47%
The answers from Democrats were:
Barack Obama................................................ 86%
Mitt Romney.................................................... 1%
Not sure .......................................................... 13%
Tom (and PPP) wonder about the numbers from among the Republicans and conclude that they just won't give Obama credit for anything.  That's probably a fair reading of the 38%.  More troubling, though, is the other 72%, and the 14% among Democrats.
Because even if you don't want to give Obama credit, how can you be confused or uncertain about whether Mitt had more to do with it unless you're either wholly ignorant or thoroughly gulled?
And, of course, some of those folks are going to be electing our judges, sitting on our juries, and telling the world that 25 years just isn't enough time for a guy who drove drunk and didn't hurt anyone. 


  1. I agree with Nancy Gertner. Let's get rid of that problematic democracy, and the freer press that supports it! Instead, all articles should be pre approved by a panel of crim-law "experts" drawn from the defense bar and those judges who were former defense lawyers. (No "experts" supporting victims' rights -- better to pretend all the experts agree with yourself.). Hallelujah!!

    1. You know, and you demonstrte, that it's always possible to miss the point.

  2. First off, neither The Ayatollah Obama nor the Duke of Taxsachusetts deserve any credit at all for killing Osama bin Missin'. One is a wimp and the other couldn't pick bin Missin' out of a lineup of nine trailer trash debutantes and one Islamic terrorist. The real credit goes to whatever super-spook department found him and the U.S. Servicemen who invaded the place and killed him. That's who should get the credit.

    Nancy Gertner wrote a nice article, but she's only reiterating what I've believed for many years. We have too much recidivism and too many people in prison. I just don't believe there are that many actual criminals in the United States; the numbers really are that unreal to me. As for trials and acquittals, every time I hear of a jury convicting someone, I wonder if the person is really guilty. I tend to think they are not. If the jury acquits the accused, then I think it's very likely the person should never have been arrested in the first place. This is particularly true in cases of armed self-defense.

    Ideally, we would not have any minimum sentence. None. Maximum sentences are a good idea, as are sentencing guidelines. But not mandatory minimums.

  3. Late and surely off point, but sheesh, no link love? Great post, by the way.

    1. Damn, sorry about that. Adding the link now.

  4. They've been looking for Bin Laden for ten years. It just so happened that the current president is Obama, it only makes sense that he gets the credit. I agree with Mad Jack that the ones who should get the credit are the ones who actually worked to find and kill Bin Laden. But anyway, the SEALS who managed the whole thing are flying under the radar anyway.

    1. The actual question, though, wasn't whether Obama should get the credit for killing Bin Laden (and one might argue about whether "credit" is really the right term) but whether Obama or Romney deserved "more credit." Give Obama half on one percent of the total "credit" for giving the order to go ahead (probably, although the administration denies it, regardless of whether he could be easily captured), or at least not rescinding the order. Does Romney get even that much? Pretty clearly he doesn't since he had nothing whatever to do with it and was not in a position to have anything to do with it.