American Law Institute Project on Criminal Sentencing
In May, 2007, I (Les Swanson) attended the annual American Law Institute meeting held this year in San Francisco. A current project of the ALI is a model code for establishing criminal sentencing commissions in the states. The model code lays out a sentencing philosophy and guidelines for establishing state sentencing commissions.
Criminal punishment involves some important philosophical issues including the problems of "free will", "just desserts", and "deterrence", not to mention the legal and moral issues involved in capital punishment. A couple of interesting things happened at the meeting: 1) Two members proposed that the ALI take a position on capital punishment (against) as part of the sentencing project, and 2) Michael Marcus, Multnomah County Circuit Court Judge, submitted three motions to substantially amend the body of the proposed draft of the project.
The capital punishment motions will be filtered through the Council of the ALI (about 60 people, Hans Linde being one of them, out of about 3,000 members) and will be subjected to further debate before it is returned for consideration by the general membership. The Reporter for the sentencing project, a law professor at the U of Minnesota opposes the ALI taking a position on capital punishment. His reasoning appears to be that 1) A number of states who have capital punishment might disregard the new code and not consider adopting it if the code is anti-capital punishment, and 2) Besides capital punishment there are enormous problems in the U.S. concerning criminal sentencing that cry out for improvement and we should not take attention away from them and instead allow it to be focused on the very contentious issue of capital punishment. In other words, there is a lot of good that can be done, without opening the can of capital punishment.
Some members pointed out that the procedural defects in the criminal law process leading to capital punishment are themselves adequate reasons for opposing capital punishment, without even reaching the substantive moral issues. One law professor said that in a recent study soon to be published it is shown that 3% of those on death row are very probably innocent of the crimes for which they were convicted.
Judge Michael Marcus's three motions were defeated. I will try to explain the motions and their context briefly. First the context. The proposed code on sentencing relies heavily on the sentencing philosophy of Norval Morris, now deceased, formerly a U of Chicago law professor.
Morris was quite skeptical of philosophical theories and he used that skepticism to put together his own eclectic theory that drew on various parts of the main philosophical approaches to sentencing. He used 1) retribution theory (a person should receive his/her just moral dessert), 2) utilitarian deterrence theory (let's sentence so as to increase the overall amount of well-being in the world); 3) skepticism concerning our ability to determine just what people are responsible for and what they are not; 4) pragmatism concerning the use of internmediate sentences - for those in the 2-3 years of prison range - where we need a lot of sentencing alternatives including home monitoring, restorative justice, rehabilitation and other alternatives to a simple lock up.
The general idea for state sentencing commissions is that representatives of the population determine by their deliberations what the appropriate "proportionality of sentences" should be between, e.g., shoplifting, robbery, and murder. The commission also would establish minimums and maximums for each crime. Then, within the ranges established, judges would have considerable latitude in applying utilitarian reasoning (what sentence here will most likely increase the greatest amount of well-being in the world) to determine sentences. And, judges are encouraged to use a lot of intermediate sentencing alternatives at the lower end of the spectrum, say prison sentences of 2-3 years or less.
Morris also believed that the principle of "parsimony" should be applied in sentencing. That is, "no sentence should be any longer than necessary." Because we don't really know enough about the human decision-making process to determine exactly what a person deserves or exactly what would most likely increase the amount of well-being in the world, the benefit of the doubt goes to the person being locked up. If it is unclear whether 3 or 4 years in prison is appropriate then use the "parsimony" principle and go with 3.
Now, to Judge Michael Marcus. he seemed to have two principle objections to the draft of the sentencing project. First, he objected to sentencing commissions using intuitive, more retributive (just desserts) decision-making to arrive at maximums and minimums for various crimes and for determining the proportionality of, e.g., sentences for shoplifting, robbery, and murder. Marcus, first, wants a sentencing commission to be able to justify sentences and sentence ranges and proportionality between sentences on empirical evidence rather than on more intuitive, community, judgments. Second, he wants public safety to be the narrower goal of any utilitarian reasoning about sentencing rather than the broader goal of increasing the amount of well-being in the world.
I agree with Marcus that where we have good empirical evidence about sentencing practices we should use it. But, I disagree with Marcus on two points: 1) I don't believe that we have the enough empirical evidence that is scientifically valid to make the evidence we do have the primary basis for sentencing decisions. l am skeptical that the social sciences at this stage in their development are able to produce scientifically valid information that would justify that evidence being the driving force in sentencing decisions. 2) Even if the social sciences were able to produce large amounts of scientifically valid information, I am reluctant to agree that science should drive our moral decision-making even though I do agree that good scientific evidence, when available, should always be taken into consideration. I suppose that means that even if science could prove that society is overall better off if murderers are sent home and required to go through extensive counseling that I would still cling to the old ways and insist that this cannot be right.
In future blogs over the next week or so I will bring up the issue of "free will" vs. "determinism" and suggest some reading for those who are interested. The dilemma of "free will" vs. "determinism", I believe, casts serious doubt on any "righteous" or "self-righteous" approaches to sentencing. We just don't know enough about what people are freely choosing to do as compared to those actions that are "moderately" determined by genes, upbringing, etc. as compared to those actions that may be completey determined.
In my opinion, a judge who "throws the book" at a defendant can do so, justifiably, only if he or she simultaneously recognizes that he or she could be quite wrong about what he or she is doing, but nevertheless believes that there is sufficient justification for "throwing the book." But, to be consistent, I must also say that for a judge to "throw away the book" and let a serious offender off very lightly, he or she should recognize that he or she could be quite wrong even though he or she believes that there is sufficient justification for "throwing away the book."
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