Feeling ‘Dirty’ About Sentencing

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Photo by Connor Tarter via Flickr

Last month, retired federal judge Shira A. Scheindlin shared her experiences imposing mandatory minimum sentences in a Washington Post “Perspective” piece.

“Mandatory minimums were almost always excessive,” she wrote, “and they made me feel unethical, even dirty.”

According to Judge Scheindlin, “The fact that the United States, with less than 5 percent of the world’s population, incarcerates 25 percent of the world’s prisoners is largely due to mandatory minimum sentences.”

Scheindlin describes encounters with a series of prisoners she was forced to sentence to minimums, each crushed under the wheels of “our laws.”

It turns out that the judges are blameless in this process—although Judge Scheindlin apparently feels even more blameless than the others.  What, after all, could judges do in the face of the statutes?

Judge Scheindlin joins a swelling chorus of ex-presidents, retired judges, and remorseful former prosecutors who agree that we have a mass incarceration disaster on our hands.

Despite its diversity, the choir sings the same hymn: “The Law Made Us Do It!”

No it didn’t.

“The Law” gave criminal justice practitioners the tools to do it with, but they chose to pick up the tools and to use them.

Unless we all face up to that fact and understand why the choices these actors made seemed like good ideas to them at the time, they (or their successors) will, after a decorous interval, just do it again,  whether there are mandatory minimums in place or not.

The fact is, in every one of the cases Judge Scheindlin describes—and in the 1,715 cases that ultimately won commutations from President Obama because he decided the sentences were extreme—there was a moment when human actors in the criminal justice system had a choice about whom to arrest, what to charge, which forum (state or federal) to bring the charge in, or what sentencing provision to invoke.

They could have zigged, but they chose to zag.

Much of the punditry on the “criminal justice reform” issue is based on a false understanding—or at least one so radically incomplete that it might as well be false— of the sources of distended sentences and warped racial impact.

This dominant explanation of the roots of mass incarceration imagines that some legislator, prosecutor or judge sat and pondered the interaction of various substantive criminal law goals such as punishment, deterrence, incapacitation, and rehabilitation, and decided on a legislative scheme, a prosecutorial strategy or a sentence.

Next, they picked a number based on a careful policy calculation.

Our predecessors miscalculated. So, we will simply find a new, better number: change the statute, rewrite the Guideline.

This top-down approach—the one that Judge Scheindlin’s piece exemplifies—obscures the actual problem.

Judge Scheindlin’s preoccupation with the subjective personal discomfort experienced by sentencing judges may seem strange to readers more impressed by the horrific impact of the sentences imposed on the defendants and their families, who might understandably respond,  “Who cares what you feel?”

But, in fact, Judge Scheindlin’s discomfort  provides an important clue to what is really happening.

What we confront here is not a dispute among mandarins about sentencing philosophy that can be permanently resolved by legislative amendments on high.

What we actually face is a population of cops, lawyers, probation officers, and judges trying to get through their days. They are not driven by ideological commitments or racist theories. But they are under pressure, from the political and media climates, their caseloads, the docket lists, their peers, and the administrators who thirst for “outputs.”

No one sets out to do extraordinary harm to individual minority defendants; it’s worse than that. The fact is, most of the frontline actors don’t know enough about any individual minority defendant to target one.

They barely take time to see them.

These players are seeking their own comfort and safety as much as they are seeking anything, and their strongest allegiance is to the path of least resistance.

They want to get rid of the damned case without a trial, and to move on to the next one. Then, tomorrow, they will be able to handle the next next case in the same way as long as they manage to preserve the “going rate” today.  Long sentences are a weapon in their struggle, not their ultimate goal.

Their decisions may be incorrect, and they may not be exactly admirable; but they are rational. They solve their personal local problem, at least for a moment.

Eliminating some mandatory minimum sentences was a step in the right direction; there are many more we can and should eliminate.  (A significant point that Judge Scheindlin does not address is that the threat of mandatory sentences provides a powerful plea bargaining  weapon that is almost as distorting as the executed sentences themselves.)

But eliminating mandatory minimum sentences is not a magical cure. The social science research of scholars such as Fordham’s John Pfaff tells us that our promiscuous use of prison time is only marginally a question of the length of mandatory sentences.

The perspectives of the frontline operators would tell us the same thing if our op ed columns were open to them as well as to judges.

The core of Judge Scheindlin’s essay is her lament that “While I bore the title ‘Honorable Judge,’ I felt less than honorable and more like a complicit tool of an unjust system.”

The strange thing is that Judge Scheindlin shrinks from the implications of  her own observation. Yes, she’s right, the distended sentences she decries are system errors. They are not the result of legislative blunders.

The answer to the question “Who is responsible for this grotesque result?” is: “Everyone involved, to one degree or another, if not by making a bad choice, then by failing to anticipate and intercept or discourage someone else’s.”

Sure, “everyone” does include legislators and Sentencing Commission members, but they do not act alone, and they couldn’t have created the results by themselves.

They needed cops, probation officers, prosecutors, defenders and, yes, judges.  (This same logic applies just as fully to sentences that are too short:  for example, to the release of manifestly dangerous individuals who could have been kept off the streets.)

Maybe Judge Schiendlin is wrong to feel “dirty.”

But none of us who have been involved in the American criminal justice system over the last quarter century should feel too clean either.  Our collective impact has been too devastating; its racial biases too stark.

Preventing mass incarceration depends on understanding where mass incarceration really came from—charge by charge, case by case, sentence by sentence.

Judges don’t have to resign to protest the sentencing laws in order to be effective in bending the future in the right direction.  (Although one, John S. Martin of the Southern District of New York, did resign, and his resignation amplified his eloquent statements on the issue.)

The judiciary could take the lead by issuing a call to convene the careful all-stakeholders examination of the system’s operation in (for example) any one of the 1,715 federal sentencings that drew President Obama’s attention—an examination that is not aimed at blame but at understanding and prevention.

They could call everyone to the table—and include the members of the communities where sentences impact safety in the conversation.

Blaming the appalling aggregated numbers on the statutes, and then strenuously washing our hands won’t work very well.

But if we take a measured look at why we all did what we did, and to whom we did it, we might all start feeling a little cleaner together.

James Doyle is a Boston defense lawyer and author, and a  frequent contributor to The Crime Report. He welcomes  readers’  comments.


















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