When we discuss sentencing here, we usually focus on determinate sentencing and structured guidelines, part of the general approach to sentencing wherein, if you didn't "reform" with guidelines and commissions since the 80s, you haven't really done anything worth studying in sentencing policy. As a result, indeterminate sentencing pretty much continues to be ignored data- and research-wise, and defenses of it are rare. However, and I was remiss in posting on this when it came out in September, the UT Sentencing Commission has issued a well-thought and interesting statement in support of the state's indeterminate sentencing process. Makes a nice counterpoint to most of what we obsess on.
One particular thing I want to focus on, though, is the Commission's reference to UT's experience with mandatory minimum sentencing legislation, specifically for child sex offenses, back in the early 1980s. Legislation that got repealed in 1996. Why? Because it didn't work. Let them explain:
. . . experience and research indicated mandatory minimums for sex offenses were failing Utah's justice system, its citizens, and most importantly, the vulnerable victims these mandatory minimum sentences were designed to protect. For instance, mandatory minimum sentences were resulting in more child sex cases going to trial though evidence strongly favored the prosecution. It was observed that in the mandatory minimum scheme, defendants had nothing to lose by going to trial as their time of incarceration was definite if found guilty. In these trials, child victims were forced to re-live their private devastation in a public forum, in the presence of the offender, and under cross-examination from defense counsel. Additionally, for cases that were not incredibly strong or the credibility of the child witness was perceived to be less than stellar due largely to the victim's reluctance to testify, a plea agreement was negotiated and the offender ended up not being convicted of the mandatory minimum offenses at all--rather, they often ended up with a plea agreement to a second or third degree felony when the underlying charge was a first degree felony.
Those liberal, touchy-feely Utahns, huh? Always going soft on criminals.
None of the points made by the Commission about child sex offense mandatory minimums is new today. In fact, those difficulties account for many DAs and some of their state orgs coming out against the more extreme versions of the same stuff. But Utah's been out there with these findings for a decade now. If sentencing policy in this country were in any way guided by research and experience, there's no way any state should have passed a "Jessica's Law." But we did, with some denying experience and research, others just ignorant of it. And this is about laws actually detrimental for the young people for whom they were intended. We know they are hurt in the long run, yet we do these sorts of things anyway. Since we're all symbol and no learning about child sex offenses and their perpetrators and victims, then why would we ever think that knowledge and intelligence will guide any corrections sentencing policy except under very special conditions? As Wendy Kaminer said about the time UT repealed its man-min laws, "Knowledge isn't power in criminal justice debates. Knowledge is irrelevant."
Think of that as you read this story on how we imprison at rates far beyond the Chinese or anyone else in the world and hear defenses of that incarceration as accuracy-challenged and poorly-supported as we get for child sex man-mins today. There's no amount of "getting our message out better" that will work as long as we mistakenly believe that the point of our punishment policies is to be effective in stopping crime rather than shouting down and crushing anyone who doesn't understand who the "good guys" and "bad guys" are. It's sad, and more kids will be horribly harmed, but "Knowledge is irrelevant." UT's proven it.