Doing Justice Better

The main ideas in this book are simple. Treat people charged with and convicted of crimes justly, fairly, and even-handedly, as anyone would want done for themselves or their children. Take sympathetic account of the circumstances of peoples’ lives. Punish no one more severely than he or she deserves. Those propositions are implicit in the rule of law and its requirement that the human dignity of every person be respected. Three major structural changes are needed. First, selection of judges and prosecutors, and their day-to-day work, must be insulated from political influence. Second, mandatory minimum sentence, three-strikes, life without parole, truth in sentencing, and similar laws must be repealed. Third, correctional and prosecution systems must be centralized in unified state agencies.

Prediction and Incapacitation

Predictions of future violence by individuals are substantially more often wrong than right. Minority offenders are more often incorrectly predicted to be violent than are white offenders. White offenders are more often incorrectly predicted to be nonviolent than are minority offenders. Use of socioeconomic status variables is per se unjust and disproportionately affects minority offenders. Use of criminal history variables exaggerates differences between minority and white offenders, and increases racial and ethnic disparities. It is unjust ever to punish someone more severely than he or she deserves because of a prediction of dangerousness (or for any other reason). Increasing the severity of a sentence on the basis of risk prediction punishes offenders in advance for crimes they would not have committed. Judges and others using prediction instruments more often disregard low-risk predictions for poor and black offenders than for affluent ones.

Deterrence

There is no need to choose between punishing offenders justly and preventing crime. Zero-sum games exist, but this is not one. It is in the nature of things that convictions and punishments have preventive effects. They are such miserable experiences that many offenders are mortified, decide “never again,” and stick to it. They reinforce important societal norms. Those involving confinement or restrictions on mobility incapacitate. To the extent that threats of punishment deter, they deter. To the extent that terms of imprisonment are proportionate, they deter rationally, reinforcing social norms about the relative seriousness of different crimes. There is substantial reason to be skeptical that increases in penalties, or harsher compared with milder penalties, have significant if any marginal deterrent effects. American criminal justice systems can be made much less expensive to operate, less punitive, and less characterized by unwanted collateral damage to offenders, their families, and their communities.

Deep Disadvantage

Arguments in favor of a social adversity or rotten social background defense are substantially stronger than those against. People disagree in principle whether judges should, in appropriate cases, mitigate the severity of sentences to take account of material differences in offenders’ circumstances and characteristics. Many believe that a deeply disadvantaged background is a material characteristic. Unfortunately, informal mitigation of punishments is not enough. The severity and rigidity of American sentencing laws often deny judges the necessary authority. The moral challenges presented by deeply disadvantaged offenders cannot adequately be addressed without creation of a social adversity defense.

Human Dignity

A comprehensive jurisprudence of just punishment would thus incorporate four propositions: Justice as proportionality: Offenders should never be punished more severely than can be justified by their blameworthiness in relation to the severity of punishments justly imposed on others for the same and different offenses. Justice as fairness: Processes for responding to crimes should be publicly known, implemented in good faith, and applied even-handedly. Justice as equal treatment: Defendants and offenders should be treated as equals; their circumstance and interests should be accorded equal respect and concern when decisions affecting them are made. Justice as parsimony: Offenders should never be punished more severely than can be justified by appropriate, valid, normative purposes.

Multiple Convictions

Little has been written about the sizable majority of defendants who are convicted of several offenses at the same time or have previously been convicted of others. That is not a small oversight. Efforts to address it expose fundamental conceptual problems. The biggest is the multiple offense paradox. Efforts to offer principled accounts of the sentencing of multiple offenses founder on it. In Western legal systems, individuals sentenced following multiple convictions receive a bulk discount that results in a lesser total punishment than if each conviction had resulted in the punishment normally imposed on a first offender convicted of a single offense. By contrast, sentences of people convicted of separate offenses in successive proceedings usually include recidivist premiums that result in harsher punishments, often much harsher, than first offenders receive for the same offense.

Proportionality

Proportionality theory’s influence is waning. It is beset by challenges. Some, such as difficulties in scaling crime seriousness and punishment severity, and linking them, are primarily analytical and of interest mostly to theorists. Others, such as trade-offs between proportionality and crime prevention, relate to real-world applications. Proportionality theory does support two injunctions with which most people, citizens, scholars, and professionals alike, would say they agree. First, no one should be punished more severely than he or she deserves. Second, all else being equal, people who commit more serious crimes should be punished more severely than people who commit less serious ones, and vice versa. Converting that principled agreement into real-world policies and practices is not easy. The post-Enlightenment values of fairness, equality, justice, and parsimony that underlie proportionality theory, however, are widely accepted and are likely to remain influential even if punishment paradigms once again shift. Proportionality theory is likely to be eclipsed but not to disappear.

Philosophy and Policy

Punishment theories and policies have marched in different directions in the United States for nearly 50 years. Philosophers and others who try to understand what justice requires, policymakers who create the rules for dispensing it, and practitioners who try to achieve it don’t communicate with each other very well, or at all. They lack a common vocabulary. More importantly, they lack a shared understanding of what punishment is and does, and what it should aspire to be and to do. This is unusual. Shared understandings exist in most countries and did in the United States through the 1960s. The costs have been high. They include mass imprisonment, extraordinary injustice, assembly-line case processing, and moral impoverishment.