Wednesday, December 06, 2006

Thought Provocation and You

Doug Berman alerts us to some good new articles at SSRN. There were a couple that I especially liked, both dealing with the question of sentencing goals and how well they can be defined. This one takes on the ambiguities of "desert" and shows it to be something that can either be anything you want, or nothing. Weak reeds upon which to base policy that can later be evaluated effectively on achievement of goals, much less to expect judges to deal with consistently coherently.

This one is the one that freaks you once you get into it, sort of a sentencing "Matrix." I can't do it justice (eek) in this space, but it starts with the premise that, no matter the rationality of intent in sentencing and its goals, we inevitably come to a point at which an irrational "leap of faith" has to be made to pull the underlying philosophy together. The article says there's no avoiding or solving the problem; therefore, we should embrace it. How? By practicing randomization in our sentencing and corrections. There are some specific recs and brain-twirling tours, but the more I thought about it, the more I bought in. I couldn't go as far as the author, but I've seen the decoupled link between goals and sentences, much less the intent of both. We are horrible at linking goals to sentences either in individual cases or as policy. There is a serious "dog that didn't bark" in sentencing after three decades of sentencing commissioning. When have you ever heard at sentencing "here's what the data show is the most effective sentence in reducing recidivism, deterring the offender over his/her lifetime at their minimum possible, satisfying and restoring crime victims, or anything related?" We are operating without data on the real impact of sentences, meaning we're guessing, and, if so, then how is that worse than sentencing randomly?

I've worked with 3 state commissions with or considering guidelines, and in none of them were their guidelines based on what would work, which would require specification of goals and marshaling of data. Instead, they were all based on conclusions of "experienced practitioners" offering opinions, some better informed than others, masked as "judgment." When you realize that, and the demonstrated effectiveness of our "rationality" at sentencing, then maybe some of these ideas are not just intriguing but workable. Anyway, you want to take your mind on a weird but worthy journey? Try this one out, then go to the first one. . . .

Here's another thought provoker. Prevention Works asserts that victims who are offenders themselves deserve the same treatment and empathy as our usual picture of "victim" in our heads, that we shouldn't say there are some victims the state protects and some they don't. IOW, they raise the question of whether or how much the victim's own culpability should count in our judgments and responses. They take the "there but for the grace of God" view, but there's also the "pragmatic" view that letting violent types take each other out actually serves a positive social goal. Again, something to take your brain out for a spin.

Finally, a kind of dessert (not desert, which still confuses me). Corrections Community gives us a link to a stat report on world crime rates so we can do some comparing and considering. I realize "furriners" don't have anything intelligent to say to us, but you can use it for evidence to make fun of them.

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