Friday, November 30, 2007

Trial Penalty

Doug Berman at Sentencing Law and Policy has been running some great stuff, such as this, on the “trial penalty” associated with longer sentences if you decide to go to trial rather than plead. When we were studying WI sentences a couple of years back, we found exactly the same thing in state cases there for the offenses we were analyzing. To me, the trial penalty is the clearest statement possible that sentencing in America is completely and totally unprincipled. It doesn’t matter whether the trial sentence or the plea sentence is the “right” one or if neither is. That one occurs if the defendant pleads and the other if s/he doesn’t, regardless of which is “right,” however defined, is all the proof we need that there is no more empirical basis for the sentences we give than medicine had for blood-letting back when it was at the same stage of professional development that sentencing is now. Unless and until we establish a philosophically justifiable ground for the goals, practice, and actual outcomes of sentencing, these kinds of unjust but common results are inevitable.

Enough talk about guidelines as the primary focus of sentencing deliberation. Let’s figure out what we want from sentencing in particular to start with and what evidence we have to support it or to deny alternatives. Let’s find out what sentences get closest to what we agree should be the proper social outcome(s) and desire(s) and get the data to show how well we do. This floundering around and gamesmanship may be fun for the practitioners like the ones in Doug’s “comments” who are clearly so deep in the kool-aid that they don’t know it even exists, but the rest of the community has to live with the poked eyes and diminished confidence that the system’s outcomes are based on just and reasoned conclusions at all. Once we get to a place at which we can talk intelligently about reasoned sentencing, then we can discuss how guidelines might or might not accomplish it, especially when those of us who’ve been involved in far too many sessions of guidelines development know that one goal of many framers is overtly to create the very “trial penalty” that corrupts everything about our sentencing.

Here’s some of the section Doug links to that makes the point less emotionally or pugilistically:

Now imagine that you might face [a 35-year] sentence if found guilty. Imagine, too, that you believed yourself innocent of all charges, but recognised the great complexity of the case and the ease with which a prosecutor might twist evidence against you before an uninformed (perhaps prejudiced) jury. You might suppose you had a one-in-five chance of being found guilty. That would be particularly plausible if you had run out of financial resources and so were unable to retain a first-rate legal team. What would you do if the prosecutors offered a plea bargain, under which you would serve just 37 months in prison in your home country (and pay $7.3m in restitution to the Royal Bank of Scotland, now the owner of NatWest)?

The answer is that most people would plead guilty, not because it was true but because it is what any risk-averse human being would do. To my mind, this system is tantamount to extracting confessions of guilt under a form of psychological torture. That torture consists of the reasonable fear of being found guilty and fear of the length of time one might then serve in prison and of what might happen while one was there. A ll but exceptionally brave people will confess to almost anything to escape even the possibility of torture. In the same way, the majority of people would surely confess to almost anything to avoid the possibility of spending the rest of their lives in prison.

Recognition of the meaninglessness of confessions extracted under threat of torture was the main reason civilised jurisdictions abandoned its use. The same objection applies to pleas of guilty made under the kind of plea bargaining employed in the case of the NatWest three. Let me be clear: I am not asserting that the men are innocent. But the fact that they have made a plea of guilty does not prove their guilt. It could just as well show that the US judicial system has a potent machine for extracting pleas of guilty to lesser charges. In this way, it has also effectively eliminated a presumption of innocence.

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