Friday, October 13, 2006

Thank you, Doc, for saying it: Too-long sentences are the biggest criminal justice problem

Says the inestimable Doc Berman at Sentencing Law and Policy Blog in response to liberal critics of shaming punishments:
I wish academics worked up about shaming (or the death penalty) would be more concerned about the affront to human dignity and the principles of liberty represented by lengthy sentences of incarceration.
Thank you, sir, for clarifying the single most important sentencing issue - probably the most important criminal justice issue of our day. And what Berman says about the academy could be said of the criminal justice reform movement's frequently misplaced priorities, too. Asks the OSU law prof (his bold):
Has any modern shaming punishment ever produced personal harms or society costs anywhere close to the harms and costs to be endured by, say, Robert Berger, the Phoenix high school teacher sentenced to 200 years in prison for a first offense of possessing child pornography?
Indeed! Again, thank you, sir! Everyone go right now and read his whole post. He was responding to this item by Dan Markel, and this short article in The Economist discussing shaming punishments. Markel responded here.

The issue of shaming punishments involves a fascinating values debate. Markel mentions that Yale law prof Dan Kahan recently "renounced" shaming punishments in this Texas Law Review article, which I must admit I've not read. However I attended a talk by Kahan last spring at the UT Law School where he presented a draft of that paper. While he formally "recanted" his advocacy of shaming punishments, what I heard didn't quite add up to a renunciation so much as a complication of shaming as a punishment concept. Here's what I wrote on Grits after the event:
Kahan's past endorsement of shaming was essentially a political ploy, to hear him tell it -- an effort to come up with punishments besides incarceration that could be politically sold to the right wing. In doing so, though, he said shaming proposals ignored the values of liberals and thus didn't provide a stable platform for reform. By contrast, prison's meaning is more ambiguous, allowing people of different political stripes to find ways to support it for different reasons -- some because it's punitive, some because it's (theoretically) rehabilitative, some because it incapacitates the offenders, and some because it humiliates or shames them.

Kahan argued that alternatives to incarceration need to express condemnation more ambiguously than shaming, allowing people with different values to simultaneously tell different stories about the what the punishment means in ways that affirm their own values. I thought that was a pretty good point. It's not simple to craft proposals with appeal across value systems, but when it can be done it's the best way to push reform in the political arena.

Concepts of "restorative justice," Kahan said, more readily fit the bill. They're seen as less punitive by liberals, but many conservatives see them as another brand of shaming aimed at placating the victim, whose moral authority in the equation they see as definitive.
By that analysis, Berman's right that shaming shouldn't be rejected out of hand. But perhaps to reach wider acceptance, punishments must enjoy, as Kahan describes, a more complicated narrative - one that lets people from different ideological approaches find satisfaction with the outcome.

Whether that's resorative justice, as Kahan and the Texas Public Policy Foundation seem to think, or some other alternative, it's sure true we could use the academy's help looking for those solutions. I frequently marvel at the pedantries that seem to occupy academic research in law and criminology.

Punishments exist on a continuum and to effectively maximize public safety they must fit the crime. As long as there is punishment, there will be shame - where society deems shame is punishment enough, I see no need to carve years off a person's life, or to ask the taxpayers to pay for it.

MORE from Orin Kerr on the subject at the Volokh Conspiracy.


Anonymous said...

With regards to the issue of the 'need' to punish regarding the matter of drug offenses:

When you look at the origins of the drug laws, you find two groups being in the punitive camp: the secular ideologists and the religious ones. The secular ones sought to 'make examples' of the 'civic weakness' of those who had drug habits. Until that time, the issue was indeed one of 'shaming' them, as such habits were considered a matter of moral failing. But that shaming was largely dealt with in silence, as there were no governmental instrumentalities as laws to regulate drug-taking behavior, and addicts were more or less kept in the social 'closet' as being part of a family's 'dirty laundry'.

But after 1914, the perception fosterd by the early proponents of drug laws began to take a distinctly punitive turn. A turn which was aided and abetted by the religious community. Said community was engaged in attempts to proselytize overseas, particularly in China. 'The Chinaman's Pipe' was seen as a direct competitor of 'Pie in The Sky' and could not be suffered to continue unregulated. So various Protestant sects in the US began to lobby hard for international drug prohibition treaties and national drug prohibition laws. The rest, as they say, is history. But both groups evidently were motivated by one overweening directive: punish, punish, PUNISH.

And it can be said that bloody litle has changed since then; most attempts at initiating drug law reform are virulently opposed by those who seek to maintain the punitive as opposed to the ameliorative (as in harm reduction) approach. And even with laws regarding so-called 'decriminalization', often the penalties for possession or distribution are greater than that experienced by someone found publicly intoxicated courtesy of alcohol. In summation, it looks like the prohibs just have to get their kicks to the kidneys in.

Anonymous said...

Yes! Thank you, Grits!

Liberals are focused on weird things, sometimes. I like your blog because you keep focused on what's important.

Long sentences harm everyone, not just those they're imposed on. A lot of people go into prison relative naifs and become more dangerous while inside, just to survive. When they come out, and they do, we're all worse off, but especially the offender - our solution for broken lives basically is to further destroy them. Thanks for leading the way to look for other solutions.

- Big D Pastor

800 pound gorilla said...

You don't solve problems by making other peoples' lives miserable. And yes, liberals, that also includes gun owners,small business owners, and car drivers. So many of these problems could be solved by other means. As the radical Islamic prophet once stated "look not at the splinter in your neighbor's eyes but remove the beam in your own". It's so easy and satisfying to lash out against "someone else". But it doesn't solve anything.

AlanBean said...

When we consider excessively long sentences we are usually talking about drug defendants. Restorative justice theory is difficult to apply to this sort of crime--who's the victim? A variety of answers to this question could be suggested: the children of the dealer and the buyer; the partners of the dealer and the buyer; the neighbors . . .etc. But a meaningful confrontation between these purported victims and the perpetrator is difficult to envision. Even if you could arrange for such a confrontation what would there be to talk about? Drug dealers, like their family members and neighbors are rarely adept in the language of moral reasoning.

But I'm not sure most juries that dish out excessive sentences, particularly for sex and drug crimes, are primarily concerned about shaming the defendant. Public safety is the big issue for jurors. In Tulia, for instance, jurors repeatedly handed out maximum sentences--in one case multiple 99-year stretches (and this to a white guy from a good family). All the jurors knew was that a perfect stranger named Tom Coleman said he bought drugs from the young man on trial and that the Sheriff said the defendant had a bad reputation in the community. I don't think jurors ever evaluated the credibility of the single witness in this case.
Jurors started with the sheriff's conviction that the kid was a bad apple--a threat to public safety. Released to the streets he would undoubtedly go back to peddling his poison and, who knows, the juror's kids or grandkids may end up on the customer list. Or maybe the defendant would get a daughter or grand daughter pregnant. Or, desperate for buy money, he might come in through the bedroom window in the dead of night and wreak untold havoc (the sort of thing featured on virtually every TV cop and forensic drama on a nightly basis).

This being the case, jurors want to remove the guy from the community for as long as possible. They don't consider the damage this might do to the defendant because television has taught them to believe that drug dealers are thugs who regularly beat their girlfriends and their offspring. They assume that everyone will be better off with this guy off the streets.

Finally, I would suggest that these public safety concerns are so visceral and profound that the simple question, "did the alleged transaction go down the way the single witness says it did?" hardly figures. Tulians wrote dozens of letters to the editor defending and explaining their willingness to convict on the basis of uncorroborated evidence. Tom Coleman's credibility and the sufficiency of the evidence were hardly ever mentioned. These letters emphasized the dangerousness of the defendants (based on the sheriff's testimony) and their desire to make Tulia a drug-free community.

In other words, sending all the dangerous people away from Tulia for as long as possible was the goal. Whether the defenant was shamed or humiliated in the process was a peripheral concern.

I would also suggest that public safety issues also drive the legislative process at both the state and federal levels. Politicians write draconian sentences for drug and sex crimes into law because they think it will make the electorate feel safer--and it does.

This means that we need to address public safety concerns in an honest and direct fashion. We need to argue that excessive sentences make people less safe. That is a counterintuitive argument and in our sound bite culture it will be difficult to find a good forum for what will inevitably be subtle and nuanced arguments. Putting this point on a bumper sticker won't be easy.

Anonymous said...

AlanBean said. This means that we need to address public safety concerns in an honest and direct fashion. We need to argue that excessive sentences make people less safe.

This is a oxy-moron. Read
here. Pay particular attention to the last paragraph.

AlanBean said...

The last sentence suggested that released drug dealers were going back to their old ways. So, is the answer to re-arrest them and send them off for life; or should this be read as evidence that long prison sentences have zero deterrent effect and we need to start looking for a different approach? When a felon is released to the streets it is small wonder that they return to their old ways. As Scott's post on the TDCJ Sunset Commission noted today, the Texas prison system ignores addiction issues, presumably on the assumption that stiff sentences render treatment unnecessary. As George W. Bush said during his race with Ann Richards, "Incarceration is rehabilitation." Secondly, released felons have a hard time finding decent work in the mainstream economy so they naturally gravitate back to doing what they know. And this is especially true if they hit the crack pipe upon release. In other words, mass incarceration and draconian sentences are a long-term recipe for increased crime and lowered levels of public safety--a point implicit within the article you cited.