THE FATHER OF modern criminology was Cesare Beccaria, who, in 1764, wrote a famous treatise called On Crimes and Punishments. This pampered intellectual who had no first hand knowledge of the criminal justice system pointed an accusing finger at the judges of his day because, he said, their unbridled discretion had led to the horrendous punishments of the 18th century: drawing and quartering, breaking on the wheel, and many other terrible punishments.(1)
Why is this sordid little book considered to be the great hallmark of 18th century criminal justice reform, still quoted and cited by criminologists today?
Judges as Scapegoats
Beccaria scapegoated the judges, not the society upon which he depended for his genteel existence. In fact two judges whom he maligned at the beginning of his book were, as his famed grandson takes pains to show, hardworking, compassionate and humanitarian.
Two hundred years later, unbridled discretion continues to be identified as the evil core of criminal justice:(2)
In the movie And Justice For All, the judges are portrayed as suicidal maniacs and sex perverts. It appears as though they have such an incredible amount of power that they could have people put in jail at the slightest whim. One poor guy has already served nine months in jail for having a broken tail light, and it's left to Al Pacino as the devoted lawyer to rescue him from the clutches of a corrupt judge.
The guy isn't saved. Instead, in his frustration at the delays in his case, and at having been sexually molested in prison, he takes hostages and threatens everyone with a gun. Al Pacino tries to reason with him, but just as he is making headway, the police blow him away. All this just for a broken tail light!
Oh, the injustice of it all!
And it's all the judges' fault!
The modern complaint is that there is too much "disparity" in the sentencing of offenders (that is, that offenders receive different penalties for the same crime), and that it is the judge's discretion that is the cause of this disparity.
The Myth of Judicial Discretion
The truth is that judges have had very little discretion since the "reforms" of the 18th and 19th centuries, especially since prison has become the main punishment. The only discretion judges have is limited to a pathetic single alternative: in or out of prison. In contrast, in the days before prison, there was a wide variety of punishments available to the judge, so he had more discretion as to the choice of penalty. In this century discretion has largely been limited to assessments of the offender's background, since there is so little choice as to the possible sentence.
There also exists a strong feeling among judges that "each case is unique." This philosophy was indeed expressed by Judge Russell Leggett who was interviewed on the ABC network Nightline concerning his deliberations as to the sentencing of Jean Harris for the murder of the famous diet doctor: "Each case is unique," he said, "the judge must weigh up the circumstances for each case." We may interpret such pronouncements as the judge's attempt to reassert his right of discretion.
But sentencing researchers have found that even when there is available to the judge a lot of information about the criminal, he apparently uses only two pieces of it: the seriousness of the offender's offense, and his prior criminal record. Clearly, when there is such a paucity of sentencing alternatives, there is only so much information that one can use in making such a decision.
There is only one choice of any import: in or out of prison!
Sentencing guidelines research has, however, made an important contribution to solving the problem of criminal punishments. It offers a way to set limits on the punishment lengths to which a judge may go in sentencing, and it has served to focus on the monumental decision of "in or out of prison," a decision which has heretofore been taken too lightly for the many reasons already stated.
The Sentencing Guidelines Breakthrough
There are many different kinds of sentencing guidelines, but it is possible to describe a general model. The interested reader may wish to refer to Professor Jack Kress's seminal work Prescription for Justice, for a more detailed account of the research and practice of sentencing guidelines.
The way these guidelines work is that social scientists tabulate the sentencing decisions of judges, and the criteria that they either say they use or can be shown to have used in their decisions. Such "variables" as have been examined are: criminal's prior record (the severity and number of his past offenses), the seriousness of the current offense, age, sex, race, income level, and many more.
It has been found that one can predict to a moderate extent the sentencing outcomes of judges by a number of such "variables." By and large, the most common and best predictors are the criminal's prior record and the seriousness of the offense for which he has been convicted. The scientists then draw up tables to show the average (sometimes displayed as a range) sentence given by all judges in the particular jurisdiction for each crime, and these are called "guidelines." Thus, when in doubt, the judge can refer to these guidelines to see how he is doing compared to the general practice of his colleagues.(3)
In this way it is hoped that the judge's decisions are regulated by the practice of his colleagues, and that excessive or disproportionate punishments will be avoided.
Many judges have objected to the idea of sentencing guidelines because it is an oversimplification of the very complex task they face in deciding on the sentence. The fact of the matter is that both sides of this argument are right. The factors that the judge must weigh up are considerable in terms of the unique background of the offender. Unfortunately, the whole process is like a very bad joke because the judge, after having gone through all the humming and hahing in deciding on the sentence, actually has only one simple choice of any consequence: in or out of prison, to which, if the answer is "in," is tacked on the number of years-which we already know has no real meaning. It is like spending a month deliberating whether to call "heads" or "tails." One might just as easily do it in a minute!
However, sentencing guidelines offers much more than the popular solution proposed by the Committee on Incarceration which was mandatory sentences to be decided on by the legislature. That solution simply removed discretion away from the judge and on to the legislative and prosecutorial level.(4)
Sentencing guidelines, however, sought to "structure" judicial discretion in an innovative way. Unfortunately, though an important breakthrough, in the long run this solution makes things worse.
Punishing by Numbers
The appealing quality of sentencing guidelines systems is that they solve the problem of matching the punishment to the crime by translating the practice of a group of "experts" (judges) into numbers (that is, statistical averages) which then justify the length of the sentence. The heavy assumption behind this approach is that types of punishments do not need to be changed. That is, it is assumed that the judge is (and always will be) faced by two decisions of any great importance when sentencing an offender:
1. In or out of prison?
2. If in, how much prison?
Why not consider other types of punishments, punishments that might better fit the crimes and allow for a more specific assessment of their numerical value?
For example, most of the sentencing guidelines, after having gone through the complicated procedure of developing "salient factor scores" and various other scores which are used to reflect the offender's past record and seriousness of offense, then provide a "grid" (merely another way of saying that two factors are used) to figure out how much prison for how much score. Yet prison is rarely expressed as a specific number but as a range (of 3 to 5 years, for example).
Why is this? Is it to give the judge more discretion in deciding his sentence for the particular offender, or is it because the researchers do not know what the real difference is between say, 3 and 5 years prison? One suspects the latter, and certainly the fact that there was no clear agreement on what such numbers meant has recently been expressed by Professor Leslie Wilkins in his monograph for the National Institute of Justice on Sentencing Guidelines. Professor Wilkins, incidentally, was the originator of the whole idea of guidelines.
At least it can be said that judges do have some guide as to the limits to which they should or can go. Yet is "3 to 5 years" a sufficient guideline if people have little idea of the difference between 3 and 5 years prison? For all we know, it might represent a difference similar to, say, cutting off one finger as against a whole arm!
We can see that we are still stuck with the same old problem of matching the punishment to the offense, even though sentencing guidelines have provided us with a very significant advance in procedure. But they are an advance in procedure only, and do not really address themselves to the problem. They have worked miracles with the numbers, and indeed have made them more real that they ever were before. But that is why, in the long run, they actually extend the problem rather than solve it,
The judge may now rest easily on his numerical sentence without having to refer directly to the source of its real meaning, which should be pain (whether chronic or acute) concretely felt. Rather, he refers to a superior source, that of collegiate practice with numbers.
Putting Meaning into the Numbers
The sentencing guidelines approach could be used to substantially improve the amount of punishment we get for our money because it directs attention to the in-out prison decision. If, as was suggested in the previous chapter, the minimum length of sentence were fixed at 15 years, it would make the in-out decision the truly monumental one that it should be, one that cannot be made lightly. This would have very important effects on the image of criminal punishment and on the practice of all those involved in sentencing in criminal justice.
The extremely harsh punishment would serve to demonstrate that the offender has reached a point at which the community is no longer prepared to put up with him.
The idea that one's first incarceration is going to be of 15 years conveys a very strong message. It also means that the judge is not going to hand down such a sentence lightly. There is, of course, the possibility that it will be abused, and there is no doubt the ever present worry that, because it is a numerical sentence, it may get out of hand, and that some local communities will find themselves locking up large numbers of their citizens for long periods of time.
Using sentencing guidelines, the number of repeat offenders and types of offender will vary from jurisdiction to jurisdiction. However, because guidelines depend upon statistical averages, the problem of excess is to a large extent solved. There would only be a problem if the average itself became excessive.
As a further precaution against excess, the sentence should be coupled with one further requirement: whenever a judge intends to hand down a sentence of incarceration, it must first be approved by the division of budget, and a court assistant must have developed a projection of the probable cost of incarcerating this offender for 15 years. If budgetary approval is not forthcoming, then the sentence should be disallowed, and another punishment substituted. This will prevent the hopeless situation which is currently occurring in most states and many other countries of the world, that legislatures will enact harsh punishments of fixed prison terms, totally forgetting that it costs a huge amount of money to keep people in prison.
The essential point of this punishment system is that the public must learn that:
1. Prison used properly-that is with a clear retributive purpose-is a very severe form of punishment.
2. Prison is the most expensive form of criminal punishment.
3. People and their legislatures must therefore decide just how
much money they are prepared to spend on prison as a punishment.
Those who repeat more crimes after having served a term of 15 years will face another prison term, this time for life.
The sentence for life imprisonment should be accompanied by a cost assessment and budgetary approval. Once again, the community and legislature must decide on how much they are prepared to spend to protect themselves from real or imagined danger (since, as we noted in Chapter 6, it is difficult to figure out which criminals are going to be dangerous and which not).
The whole emphasis of the sentencing guidelines system under this model would be shifted away from numerical assessments of the length of incarceration, and on to the monumental decision of in-or-out of prison. And truly a monumental decision it would be.
One may criticize this system as heartless and cruet, Draconian. But the reply is that the reformers of this century have sought to reach the same goal: to incarcerate only those offenders that we really need to incarcerate. Both the argument and the practice of the reformers have been made on the wrong grounds by focusing on the claim that only a small proportion was "dangerous" or whatever.(5)
The need for incarceration that we refer to is the need of the community (1) to have punishment done, that is, to get a maximum amount of punishment for its money, and (2) to feel safe.
The pleas of the reformers have never been heeded, and the reason, which we have noted several times already, is that they did not provide alternative punishments for those who were not to be put in prison. They also allowed for short prison terms, "soft" prisons such as prison farms, which makes the in-out decision not a monumental decision at all. Populations of prisons have gone right on growing, and the public feels none the safer.
Sentencing Guidelines and Corporal Punishment
Sentencing guidelines could be very useful when judges are feeling their way with the new punishment of electric shock as outlined in Chapter 5. Researchers would need to survey judges, look at past practices of jurisdictions where corporal punishment has been used. Clearly, the matching of each punishment to each crime category according to the crime's seriousness will be difficult.
One can see that even though corporal punishment of electric shock is essentially a numerically based punishment, there is much diversity in the way it may be administered and manipulated. For example, all the current sentencing guidelines which use prison as a punishment simply specify prison, along with the scale of the number of years, varying this according to the seriousness of offense and the offender's background. With electric shock, it would be possible to vary the intensity of the shock (that is how many volts) with the duration of the application of the shock (that is, apply the shock for so many seconds or minutes) and as well vary the number of punishment "sessions" (for example, three sessions of five minutes over a one week period).
One can immediately see the broad range of choices that faces the sentencing judge, and here at last he or she will have some discretion worth using!
After sentencing guidelines have been used with corporal punishment and the "dust has settled," we may find that various levels of punishments would be agreed upon for various offenses. The limits of sentencing would thus be developed by collegiate practice.
Matching Acute Punishments to Crimes
Because of the old retributivist emphasis on the act rather than the actor, we should lean more towards a notion of the injury and harm done by the offender as the criteria of sentencing, rather than the inherent wrongness of the act. Therefore, the amounts of pain administered may better, and perhaps more easily, be adjusted to the injury and damage of the offense.
The model of the old retributivists should hold sway up to a certain point-the decision to incarcerate-and at that point of no return, the religious retributivists should come into play. This position would require the re-writing of a lot of laws, especially to remove the "mental element" that is so often part of their definition. This would be especially the case in jurisdictions that did not want to spend too much money locking people up, since they would have to punish them with corporal punishment instead, and it would therefore be useful to write many crime statutes in terms of injury and damage, the harms they cause, rather than the evil intent that supposedly underlies them.
However, acute corporal punishment could be maintained quite well under existing criminal codes. All that is required is, through practice and experience, to come up with the amounts and combinations of corporal punishment that may be matched to the scale of crimes.
Where does one locate this scale? How does one match the scale of corporal punishments to the scale of crimes? This is a severe problem that confronts all philosophers of punishment. It is actually that nasty problem that will not go away: the limits problem.
The sentencing guidelines approach is the most straightforward solution to matching the crimes to punishments because it may be adapted to the needs of the local jurisdiction. But while most jurisdictions will not go to extremes, it is predictable that some will. The question remains, therefore, how to avoid these excesses, even though they will be the exception.
The Problem of Proportionality
The problem of proportioning punishments to their crimes is largely a modern problem, or at least was first introduced by the utilitarians when they began to focus on the amount of punishment rather than the kind of punishment. Beccaria solved the problem this way:
For a punishment to attain its end, the evil which it inflicts has only to exceed the advantage derivable from the crime... (6)
This sounds like a great solution and the utilitarians have argued for a long time that it provides a rational answer to the essentially mystical question with which the retributivists have had so much trouble. When asked how they figure the proportion of punishment to crimes, retributivists have had no real answer for a couple of centuries. They could once have replied that the question made no sense to them, because they did not think in terms of degrees or proportions of punishment, but rather in types of punishment: their main aim was to make the punishment express the crime.
Furthermore, since in the old times, the classification of crimes into the hierarchy of seriousness was done only in a very broad sense (historically only two, it would seem, public and private, which later became felony and misdemeanor in western law) their preoccupation with types of punishment was much more appropriate. This is in addition to the fact that the amount of pain which resulted from punishment was not seen as entirely the measure of its "seriousness," since their preoccupation with pain as a kind of evil as it is seen today (largely as a result of painkilling drugs) was quite different. The concrete link between such punishments as the pillory or stocks and the particular crime was absolutely clear because they were essentially public (as was even prison in those days).
Today it has become an act of mystification when a particular crime is transformed into a particular proportion of prison, because the punishment has become an abstraction, a mere expression of numbers.
The choice is so difficult that the Supreme Court has ducked the issue on a number of occasions, even in cases where the amount of punishment seemed to be clearly out of proportion by common sense standards-such as the case of Mr. Rummel, and we will look at a number of similar cases in the following chapter.
But the utilitarians are responsible for punishments like that of Rummel which was essentially a deterrent and not a retributive punishment.
The utilitarians say that the evil of the punishment must outweigh the pleasure or gains of the offense. How does this translate into a measure of proportionality of prison? There is clearly no way to do it except in terms of outcome. That is, one could apply more and more punishment until one had completely eradicated or reduced the incidence of the crime in question.
Clearly, we cannot do this, or we run the risk of violating people's sense of justice (which, as Aristotle once said, is related to a sense of proportion).
Unless there were some limit imposed (which, one would have to admit, would be a kind of arbitrary or mystical limit-that is, one that "felt right"), then there would be no barrier to increasing punishments to enormous proportions in order to achieve the desired level of compliance. At the extreme, for example, one could introduce five year prison terms for parking violations and keep on increasing them until parking violations were eliminated. Such punishments would seem out of proportion-that is, unjust-for such crimes of minimal seriousness.
The reason we run foul of such a problem of proportions here is not so much the fallacy in the utilitarian ethic but the abstraction of the punishment into a numerical act which makes it possible to go to extremes without "feeling it."
Going Beyond Proportions
The introduction of acute corporal punishments should give judges a taste of what it is really like to have some discretion. However, this is only a beginning step to the ultimate goal: to rediscover the lost art of reflecting the crime in the punishment. We have seen a number of examples of this kind of punishing, many of them from centuries ago, some of them imaginary as expounded by the great master of analogical punishment, Dante. If one tries to conjure up appropriate punishments that express crimes from the point of view of quality rather than amount, it is extremely difficult to do so.
Some judges have tried on occasion. We can read of these punishments and nod our heads with the response: "He got what he deserved," and there is no really central question of whether the amount of punishment was proportionate to the crime. Rather, it is the quality of the punishment and its ability to address itself to the crime that appeals to us.
Here are a few examples of the innovative punishments that some American judges have tried. However, it will be noted that there are two big differences between all these punishments and those of ancient times: they make use of the offender's background to produce the "unusual" punishment, and they avoid punishments that may be physically painful.
An Oregon dentist was convicted of killing two motor cyclists while he was drunk driving. He was ordered to fix the teeth of the elderly and the poor one day a week at his own expense for one year.(7)
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Former Columbia Pictures President David Begelman who pleaded no contest to stealing $40,000 by forging company checks, was ordered to produce a film about the drug PCP for use in schools-a project the prosecutor said would cost Begelman $45,000. In addition he had to pay a fine.(8)
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An automobile importer convicted of importing cars into California without pollution control equipment was ordered to do a hundred hours of work for a government environmental agency to 'make him aware of the nation's environmental problems.(9)
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San Diego Municipal Judge Artie Henderson sent teenagers caught purse snatching from old ladies to work in convalescent homes.(10)
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Graffitti artists in New York City were ordered to swap their paint sprayers for cleaning brushes.
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A professor arrested in a protest demonstration was sentenced to write a 1, 500 word essay on civil disobedience.(11)
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A thief who stole some saddles from a farmer was ordered to raise pig and a calf for his victim.(12)
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In San Francisco's Castro district, a woman was convicted of selling marijuana brownies. She was ordered to bake brownies and distribute them to the poor and needy in San Francisco. (13)
These attempts to express the analogical function of retribution may be seen as rather pathetic attempts to recapture the art of reflecting punishments. It will be noted that they are mostly in the area of crimes that are less serious. In this case, we might well make a case that they be substituted for such non-punishments as probation.
Yet when one reads these examples, one has the undeniable feeling that the severity of the punishment may not match that of the crime. We must see that this is a symptom of our inability to think of punishments in qualitative rather than in quantitative terms.
And if we look at the relevant United States Supreme Court cases, and a few other major court decisions on the use of punishment, we will see that the courts have been, except in rare cases, unable to think of punishment except in terms of quantity. This is especially evident in regard to corporal punishments, which they have presumed are all the same, when in fact they vary enormously in their painful effects.
1. Cesare Beccaria, On Crimes and Punishments, trans. H. Paolucci (New York: Bobbs-Merrill, 1963). First published in 1764. Beccaria's grandson, the great Italian novelist Allesandro Manzoni, noted ryely that although Beccaria's treatise seemed to have spawned the movement against torture in Europe, the work was badly misinformed as to the criminal justice practices of the day, largely because Beccaria believed the lies fed to him by his intellectual friends, the Verri brothers. These intellectuals pretty much served as ghost writers for Beccaria who was incapable of putting his thoughts together in a coherent fashion, such that, as one translator has observed....... the clauses are strung together in a maze of complexity, as if the author were attempting to express involved thought with a maximum of precision, when in fact he is merely trying to veil his juridical and historical ignorance..."
2. The first strong statement against discretion was by Judge Marvin E. Frankel in Criminal Sentences: Law Without Order (New York: Hill and Wang, 1972).
3. A number of systems even have a provision by which, if the judge feels that he must go outside these guidelines (either to give greater or lesser punishment) he must give an explanation for doing so. Some interpret this practice as providing a constraint upon the judge by requiring him to justify his departure from the usual practice, thus limiting the chances of excessive punishments. In addition, by requiring an explanation as to the reasons for departure, it is possible to review all the exceptions after a given time, and if it becomes apparent that there are more exceptions than the rule, the guidelines may be changed to bring them into line with the general sentencing practices of judges.
Finally, the proponents say, by being allowed to depart in particular cases, recognition is given to the possibilty that there may be some substance to the argument that judges often claim that each case is unique. However, it is very clear from the constructors of the sentencing guidelines that judges do not see each case as unique, that they do in fact see most cases as being rather similar, with only very few requiring exceptional treatment.
4. The apparent cyclical movement of discretion from judges to legislatures and back again is described in A. Dershowitz, "Criminal Sentencing in the United States: An Historical and Conceptual Overview," Annals of the American Academy of Political and Social Science 423 (January, 1976): 117-132.
5. A most eloquently stated plea for this state of affairs is by Simon Dinitz, "Are Safe and Humane Prisons Possible?" Australian and New Zealand Journal of Criminology 14 (March, 1981): 3-19.
6. Beccaria, On Crimes and Punishments.
7. U. S. News and World Report, 11 December, 1978, 85.
8. Ibid.
9. Ibid.
10. Time Magazine, 4 April, 1978.
11. Ibid.
12. Ibid.
13. San Francisco Chronicle, 18 June, 1981, 37.