Sentencing and Disgust

Sixty years in prison may seem like a long time for a crime not involving homicide, but such was the term Nathan Brown received in the Northern District of New York for producing and possessing child pornography. Brown’s sentence was premised, in part, on the psychological harm done to three children whom Brown photographed in sexually graphic ways. However, the record only provided clear support for harm to two of the children; the third was apparently photographed while sleeping and had no recollection of the incident afterwards. Last June, a panel of the Second Circuit initially ruled (2-1) that Brown should be resentenced so as to ensure that his punishment did not result from an erroneous understanding of the facts. However, the same panel of the Second Circuit reversed itself earlier this month, affirming Brown’s sentence as originally imposed.

The panel’s switch resulted from a change of heart by Judge Robert Sack, who ultimately concluded that the long sentence was reasonable and a resentencing not likely to lead to a different outcome. Although backing away from the panel’s initial holding, Sack apparently remained troubled by aspects of the district judge’s “rhetorical overkill” at Brown’s sentencing. Sack elaborated on his concerns in a thoughtful concurring opinion. Highlighting what seems an important challenge in the sentencing of certain types of cases involving highly disturbing offenses, Sack’s opinion merits quoting at length:   Continue reading “Sentencing and Disgust”

Riding the Punitive Roller Coaster

Public support for punitive criminal-justice policies has risen and fallen repeatedly since 1951, Mark Ramirez demonstrates in an extensive new analysis of historical polling data.  Although some commentators characterize the punitive attitudes of Americans as a constant, Ramirez shows that the strength of these attitudes has varied over time.

Measuring public punitiveness has proven difficult.  Simply asking people whether they are punitive seems unlikely to produce helpful results, given the uncertainty and abstraction of the term.  On the other hand, asking about support for any specific criminal-justice policy might or might nor produce answers that are reflective of more general attitudes.  Intuitively, for instance, support for the death penalty would seem a good indicator that a person would also support a range of other policies that are typically characterized as punitive, such as three-strikes laws, but it is hard to rule out the possibility that the death penalty is a unique issue in the minds of many Americans; support may be due, say, to religious beliefs or particular feelings regarding the crime of murder, rather than more general attitudes toward crime and criminals.

Ramirez attempted to overcome this difficulty by aggregating survey responses to several different criminal-justice policy questions.  He identified 24 different survey questions that were asked by national pollsters at least twice between 1951 and 2006.  Many of the questions related to the death penalty, but others touched on three-strikes laws, drug enforcement, law-enforcement spending, imprisonment, and sentencing more generally.  Although the levels of support for different punitive policies varied, they tended to move in unison over time, suggesting that there really is some shifting, underlying attitude that drives support for all of the different policies.

Based on the survey data, Ramirez compiled a year-by-year punitiveness index.

Continue reading “Riding the Punitive Roller Coaster”

Posner on Stephen: Punishment, Hatred, Struggle, and Power

I’ve never read the work of the Victorian judge and legal scholar James Fitzjames Stephen, but I am familiar with his famous statement that “it is morally right to hate criminals.”  Richard Posner contextualizes this statement with some interesting commentary about Stephen in a new essay in the Ohio State Journal of Criminal Law.

As Posner reads Stephen’s work (principally, his three-volume history of English criminal law), Stephen was not really a moralist, but a utilitarian who saw practical value (for him, the same thing as moral rightness) in harnessing the public thirst for vengeance against wrongdoers.  Posner puts it this way:   Continue reading “Posner on Stephen: Punishment, Hatred, Struggle, and Power”

People Want Criminals to Suffer, Even If It Is “Useless”

A large body of experimental research has sought to determine whether punishment is motivated more by instrumental considerations (deterrence, incapacitation, etc.) or by retributive urges.  The various studies, although limited in important ways, have generally pointed to retribution as the primary factor in driving penal decisions in response to hypothetical fact patterns.

Add to this body of research an interesting new study Eyal Aharoni and Alan Fridlund, “Punishment Without Reason: Isolating Retribution in Lay Punishment of Criminal Offenders,” 18 Psych., Pub. Pol’y & L. 599 (2012).

Aharoni and Fridlund presented subjects with various versions of a hypothetical homicide case and then asked how much the killer should be made to suffer and what sentence should be imposed.   Continue reading “People Want Criminals to Suffer, Even If It Is “Useless””

For Punishment, Do Costs Count?

In my previous post, I discussed some of the fascinating results from the recent Marquette University Law School Poll, in which about 700 Wisconsin residents were asked various questions about crime and punishment.  In this post, I’ll consider what the Poll results have to say about a crucial question for sentencing policy and politics: do costs matter, or are the interests served by punishment of such overriding social importance that expense is no object at sentencing?

This question is related to another question I raised in the previous post: is punishment valued more in instrumental or symbolic terms?  If people look to punishment primarily as a way to decrease crime and increase public safety (the instrumental approach), then costs seem to have a natural place in the equation.  As much as we value our safety, there are always limits to what we are willing to spend to protect ourselves.    Few of us hire body guards, or purchase bulletproof vests, or build panic rooms in our homes — the small reductions in risk that we would enjoy simply do not seem worth the cost and inconvenience, and there seems nothing odd about thinking of risk in these sorts of cost-benefit terms.  But if punishment is instead viewed in symbolic terms — as making a statement about who we are as a people and what our deepest moral values are — then cost considerations seem out of place.  It would make us uncomfortable to say, “X is the right thing to do, but I’m not going to do it because it is too expensive.”

The Poll did not ask the big philosophical question about costs directly, but several questions seem to get at it indirectly.  The answers suggest some real ambivalence and division in public attitudes.

Continue reading “For Punishment, Do Costs Count?”

Wisconsinites Like Truth-in-Sentencing . . . Sort Of

The latest edition of the Marquette University Law School Poll includes some interesting data on sentencing policy.  I’m grateful to Professor Charles Franklin for collaborating with me in putting the questions together.  The results are here (note that the sentencing questions start at Q25a).

The primary purpose of the questions was to determine the attitudes of Wisconsin residents toward truth-in-sentencing, which was adopted by the state legislature in 1998.  The questions are timely in light of recent political debates over new early release opportunities for prison inmates, which were embraced by the legislature in 2009, but then repealed two years later.  Early release undercuts truth-in-sentencing by introducing uncertainty into the actual date that inmates will be released.  Indeed, critics of the 2009 reforms complained — in what was probably a bit of an overstatement — that the new early release mechanisms “gutted” truth-in-sentencing.

At first blush, the new poll seems to provide strong support for the 2011 repeal and the return to a purer form of truth-in-sentencing: a decisive 63% majority agreed that “truth in sentencing should continue to be the law in Wisconsin.”  (25c)  Moreover, only 27% agreed that “many of the people who are locked up in prison do not deserve to be there,” and only 37% agreed that “many of the people who are locked up in prison could be safely released without endangering the community.”  (27d, e)

But the story is a little more complicated than might first appear.  Continue reading “Wisconsinites Like Truth-in-Sentencing . . . Sort Of”

Explaining the Racial Threat Hypothesis

I have previously written about the racial threat hypothesis, which seems a potentially powerful way of explaining why attitudes toward crime and punishment vary so much from community to community and state to state. The basic idea is that a large minority population fuels demand by the majority for greater social control, including harsher punishment.

There is some empirical support for the hypothesis, but it is unclear what exactly drives the link between minority population and the demand for social control. An interesting new article, however, helps to illuminate the underlying dynamics: Justin T. Pickett et al., “Reconsidering the Relationship Between Perceived Neighborhood Racial Composition and Whites’ Perceptions of Victimization Risk: Do Racial Stereotypes Matter,” 50 Criminology 145 (2012).

The study is based on telephone surveys of 1,273 white Floridians and 743 whites from around the nation. The authors focused particularly on the connection between black population and white fear of victimization. Five notable conclusions emerge.

Continue reading “Explaining the Racial Threat Hypothesis”

Certainty v. Severity of Punishment: The Need for Mechanisms of Restraint

For at least two and a half centuries, since the time of Cesare Beccaria, criminologists have recognized that the effectiveness of punishment depends more on its swiftness and certainty than on its severity.  Yet, in the United States today, our criminal-justice system has it exactly backwards, relying on what Mark Kleiman and Kelsey Hollander justifiably call “a system of randomly Draconian punishments.”  In an insightful new article, Kleiman and Hollander describe in clear, simple terms the systemic reforms that ought to be adopted in order to implement the basic principle that certainty matters more than severity.  See “Reducing Crime by Shrinking the Prison Headcount,” 9 Ohio St. J. Crim. L. 89 (2011).  They even have an actual, working model of this system to demonstrate its effectiveness: Honolulu’s Project HOPE, which, using a system of summary sanctioning, has achieved dramatic reductions in recidvism among probationers.  Klieman and Hollander argue that the HOPE model can and should be expanded to a number of other populations, including parolees.

I find much that is appealing in Kleiman and Hollander’s reform program.  But I also think there is something important that is missing in their analysis.  As I’ve pointed out in my criticisms of the “evidence-based decision making” movement, there are real dangers when we think about criminal justice purely in terms of the efficient management of social risk.  The most fundamental problem with this model is that it assumes that we are capable of treating the people we label as “dangerous” in a restrained, carefully cost-benefit-justified way, when experience teaches that this sort of marking tends to unleash powerful emotional responses like disgust and vindictiveness.  James Whitman has written eloquently, and I think persuasively, of these important tendencies.

Indeed, we should ask why it is that the certainty-based approach of Kleiman and Hollander is not the norm.  After all, the central premises of their model date back to Beccaria.

Continue reading “Certainty v. Severity of Punishment: The Need for Mechanisms of Restraint”

Why Police Neutrality Matters . . . Even in Terrorism Investigations

In a long series of influential papers over many years, the social psychologist Tom Tyler has explored the relationship between procedural justice and cooperation with legal authorities.  In a nutshell, here is his claim: The primary reason that people obey the law and cooperate with legal authorities is not fear of adverse consequence if they don’t, but rather a sense that the legal system has legitimacy.  And these critical perceptions of legitimacy seem closely related to whether the legal authorities are perceived to act in a procedurally just manner.  Tyler has identified several key components to procedural justice, but the most important may be neutrality.  Thus, police actions that are perceived as lacking in neutrality, such as racial profiling, may actually be counterproductive from a law-enforcement perspective; they are apt to undermine the legitimacy of the police in the minds of the public, and thereby undercut public cooperation.  (For an attempt to apply Tyler’s procedural justice model to plea bargaining, see my article here.)

Tyler now has a new coauthored article that evaluates the procedural justice model in a new setting with a new population: Aziz Z. Huq, Tom R. Tyler, & Stephen J. Schulhofer, “Why Does the Public Cooperate With Law Enforcement? The Influence of the Purposes and Targets of Policing,” 17 Psych., Pub. Pol’y, & L. 419 (2011).  Specifically, through a series of surveys, the authors sought to compare procedural justice effects in the anti-terrorism setting with the conventional anti-crime setting, and as between Muslims and non-Muslims.

Continue reading “Why Police Neutrality Matters . . . Even in Terrorism Investigations”

Does Mens Rea Matter?

In a new article in Psychology, Public Policy, and Law, N.J. Schweitzer and coauthors report on a set of experiments intended to show whether neuroimage evidence has a greater impact on jurors than other types of evidence of psychological or neurological dysfunction.  The answer is basically no — jurors do not give greater weight to expert testimony when it is accompanied by fancy brain scans.

What I find more interesting and provocative about the article, though, is what it seems to reveal about how little mens rea matters in decisions about guilt and sentencing.

Continue reading “Does Mens Rea Matter?”