I think the sentencing guidelines are an ad-hoc grab-bag of poorly justified moral assertions. Why should someone who "seems sorry" when he pleads guilty get less time than someone who doesn't? Why should repeat offenders be punished more harshly for any given crime than those who are first offenders? It all shades into punishing someone not for what they did, but for who they are.
I believe in judicial discretion in sentencing, but it should be used to account for extenuating circumstances of the offense, not the character of the offender. E.g. someone who stole food to feed their hungry child should get a reduced sentence, whether he or she is a hardened drug dealer or a sympathetic single mother.
Agreed. I've posted this on HN repeatedly, I believe the solution is taking a "Restorative Justice" approach (which is a concept gaining momentum in the legal world):
> Restorative justice is an approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender. It is based on a theory of justice that considers crime and wrongdoing to be an offence against an individual or community, rather than the state. [..] it shows the highest rates of victim satisfaction and offender accountability.
So the question is would 2, 5 or 10 years in prison make any difference in making Hammond (and others in the community) stop conducting political property destruction? I doubt it.
Focusing so heavily on the punishment side of it is an incomplete solution and often creates a negative reactionary effect in the community.
Without getting into the merits of restorative justice, I actually think the sentencing guidelines are the result of focusing on the offenders rather than abstract legal principles.
The basic purpose of criminal law is to establish norms for behavior. Punishing any given offender or satisfying any given victim is secondary to establishing a norm so 10 other people won't do the same thing. This is a distinct concept from "deterrence." The idea of deterrence is to force people to include the probability-weighted cost of a jail sentence into their cost-benefit analysis. A jail sentence twice as long means a twice as strong deterrent effect. However, given the practical probabilities of getting caught for many crimes, deterrence doesn't really exist. Say 2 years for stealing a bike times a 0.1% chance of getting caught = deterrent effect of 0.73 days in jail per bike. The punishment isn't deterring anyone. What's keeping people from stealing bikes is the social norm created by making bike stealing illegal and punishing offenders.
This rationale for criminal punishment supports having crimes be punished in proportion to how egregious a violation of the social norm has occurred. That's why punishing someone less for stealing food to feed a hungry child is justifiable. Within a restorative justice theory less punishment is appropriate because a small breach of social norms requires less healing, but that only focuses on the singular event. The additional justification is that a small breach of the social norm requires less punishment in order to maintain the norm for everyone else.
At some point in the 1960's, people (mostly liberals) decided that criminal law should be about rehabilitating the offender. This led to a focus on the offender, rather than the offense. Hence three strikes laws, ridiculous sentencing enhancements or reductions for whether an offender seems contrite at sentencing, etc. Ironically, this thought process also led to an inflation of sentences, because people more easily rationalized increasing maximum sentences when those maximums would only be applied to "bad people."
Of course restorative justice isn't coextensive with the 1960's idea of rehabilitative justice, so I'm not saying it suffers from the same problems.
> The basic purpose of criminal law is to establish norms for behavior.
Once you start making assertions like this, you're already into a particular kind of theory of justice. There are a few. It's not really possible to say that there is one true purpose of criminal law.
Now, if you qualified it with our current legal system, it absolutely subscribes to a particular notion of what justice is. And maybe you mean to, without explicitly noting it. But given we're in a discussion about different forms of justice, it would make sense that not everyone agrees with this assertion, and therefore, your others.
deterrence force[s] people to include the probability-weighted
cost of a jail sentence into their cost-benefit analysis.
... given the practical probabilities of getting caught
for many crimes, deterrence doesn't really exist.
I think the issue is less that the expected value is poor, but rather that most criminals, especially in the cases of crimes we care the _most_ about punishing (murder, fraud, etc), often are not rational.
Even if the punishment were immediate execution a-la Judge Dredd, we would still have people committing crimes, because they irrationally believe that they'll never get caught, or that what they are doing isn't a crime. Or, in some cases, are acting through emotion rather than rationality.
Unless the definition of rehabilitation in the US is different from the rest of the world I don't see any attempts at that. What I have read is increasing "tough of crime" during the decades.
For effective rehabilitation program you need a few things - low sentences for non violent crimes , social norms that not reject the ex felons and allow the reintegration.
Also you need robust job market and social safety network.
And i think that sentencing should be done on scientific grounds and not moral ones.
> Unless the definition of rehabilitation in the US is different from the rest of the world I don't see any attempts at that.
I'm not saying the current system is rehabilitative, but rather that it's a perverse consequence of attempts in the 1960's at making the penal system rehabilitative. The rehabilitative approach shifted the focus from the offense to the offender. This is logical: in a penal system the punishment fits the crime. In a rehabilitative system, the punishment is tailored to the offender (ideally with an eye towards reducing recidivism).
That backfired, because it turns out criminal offenders aren't particularly sympathetic. Once the focus was on the offender, it became much easier for people to justify long sentences and harsh punishment than when the focus was on the crime in the abstract.
The deep irony of the focus on the offender is that it allows us to punish Jamal from the hood much more harshly than Johnny from the suburbs for the same exact crime, all because Johnny doesn't have a rap sheet of minor offenses and is socialized to look contrite and afraid at sentencing.
Rehabilitative law went out of fashion in favor of "neo-liberal" policies in the late 70s/80s which put the focus back on individual responsibility instead of what was viewed as the "welfare" approach to rehabilitation in the 60s.
So I wouldn't call today's policies rehabilitative, they are very much neoliberalist, much like American economic policy.
The idea that criminal law should be about rehabilitation goes back a lot further than the '60s. Look up the etymology and provenance of the word "penitentiary".
Why should repeat offenders be punished more harshly for any given crime than those who are first offenders?
Why shouldn't they? The purpose of imprisonment is not only restorative or rehabilitative, but also to keep the offender from doing further harm to society. If, by reoffending, someone shows beyond doubt that they can't learn from their mistakes, why should they receive the same punishment for their nth crime that someone else receives for their first? Failure to punish repeat offenders more harshly amounts to sanctioning sociopathy.
Anyone who has been injured by a four-time DUI offender would probably have a strong opinion on this. At some point, it is indeed necessary and appropriate to write offenders off as hopeless.
3 strikes laws are the extreme of what you're talking about. They created a situation where a man could be sentenced to life for a moment of stupidity and a pair of socks.
Fundamentally, in the US, the issue is that prison is not for rehabilitation, it is for containment and retribution. We don't provide for their mental health. We don't provide for their safety. We force non-violent criminals into association with violent criminals. There are people who can't be rehabilitated, but we never really try so we have no way of distinguishing the repeat offenders who learned but had a moment of stupidity from those who simply didn't learn.
True, you're not wrong about the idiocy of '3 strikes' laws, but the problem with them is specifically that they remove discretion from the court, rather than the general concept of escalating punishment for serial offenses. If someone steals a pair of socks, a head of lettuce, and a blanket, they should not be automatically treated the same as someone who steals a Chevrolet, a Lexus, and a Porsche.
Sentencing laws in general are a really terrible idea IMHO.
Sentencing guidelines do serve a legitimate purpose, though. The problem with giving judges very wide discretion is the sentence you get doesn't depend so much on whether you were the socks vs Chevy guy as much as to which judge your case was assigned. If car thief A gets three months and car thief B gets three years for exactly the same crime that's fundamentally unfair.
> Why should someone who "seems sorry" when he pleads guilty get less time than someone who doesn't? Why should repeat offenders be punished more harshly for any given crime than those who are first offenders? It all shades into punishing someone not for what they did, but for who they are.
Because punishment has many goals, and one of them is removal of negative agents from society.
If someone seems sorry, or it's his first crime, there's a likelihood it will be his last crime, and releasing him earlier makes sense.
If someone is not sorry, or keeps committing crimes when released, then perhaps a higher penalty will at least somewhat deter them, and if not - they'll have less opportunity to repeat the crime.
At the same time, it is incredibly easy to fake being sorry. In addition to that, in the case of an innocent being held in jail they would have no real reason to be sorry for what they didn't do. (I could accept that this latter point doesn't hold, if the prisons simply assume that wrongful convictions don't occur and aren't their problem if they do.) (I recall this scenario from a study we did in school on wrongful convictions. One particular individual -- who served 30 years and later had his conviction overturned after he was released, explicitly refused to apologize; that would mean he was guilty.)
I have read that it's much more difficult for the wrongfully convicted to get parole, as they tend to be rather averse to admitting they committed the crime.
Can you expand on that?