How Do Judges Decide?

The Search for Fairness and Justice in Punishment

Cassia Spohn

• Publisher: SAGE Publications, Inc
• Year: 2008
• Print ISBN: 9781412961042
• eBook ISBN: 9781483342948
• Edition: 2
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

How are sentences for federal, state, and local crimes determined?
Is this process fairly and justly applied to all concerned?
How have reforms affected the process over the last 25 years?

Offering a comprehensive overview of the sentencing process in the United States, How Do Judges Decide? The Search for Fairness and Justice in Punishment explores these questions and more. Author Cassia Spohn first discusses the overall concept of punishment and then analyzes individual aspects of it, including the sentencing process, the responsibility of the judge, and disparity and discrimination in sentencing. This Second Edition offers new information on the impact of sentencing reforms, including recent research and case law, updated statistics in tables and figures, and new boxed highlights.

Key Features

• Helps students understand patterns in the wide discretion and latitude given to judges when determining penalties within the framework of the U.S. judicial system
• Engages the reader with "Focus on an Issue" sections, which analyze key issues such as gender and sentencing (Ch.4) and the impact of race on sentencing for drug offenses (Ch.5)
• Examines sentencing reforms and their impact, providing students with up-to-date information on how punishment is meted out in U.S. courts.
• Contains boxed excerpts in each chapter from books and articles, with a variety of case studies on topics such as the O.J. Simpson murder trial, judicial surveys, and comparison of sentences in different jurisdictions by gender
• Offers new material on specialty courts and the prosecutor?s role in sentencing
• Concludes each chapter with discussion questions

How Do Judges Decide? is an ideal text for upper-division undergraduate and graduate courses on the judicial system, criminal law, and law and society.

ONE

THE GOALS OF SENTENCING

Punishment is an institution in almost every society. Only very small and very isolated communities are at a loss about what to do with transgressors, and even they recognize the punishment of children by parents. . . . It is an institution which is exemplified in transactions involving individuals, transactions that are controlled by rules, laying down what form it is to take, who may order it, and for what.

—Nigel Walker, Why Punish? (1991:1)

Deciding how much to punish is an agonizing process, in which conflicting aspirations compete.

—Andrew von Hirsch, Doing Justice (1976:59)

What should be done with a person who has been found guilty of a crime? Should he or she be punished? If so, what is the purpose of the punishment? And if punishment is justified, what should the punishment be? Should the person be required to pay a fine or provide restitution to the victim? What amount should be paid? Should he or she be placed on probation? For how long and under what conditions? Should the sentence be incarceration in jail or prison? How long should the period of incarceration be? Or should the person receive the ultimate punishment and be put to death?

Questions such as these have been pondered and debated by philosophers and legal scholars since the beginning of time. The answers to the question, “Why punish?” have varied, with some scholars contending that punishment is justified because a crime has been committed and the offender deserves to be punished for it (H. Moore 1968; M. Moore 1992; von Hirsch 1976) and others arguing that offenders should be punished “to promote good (and/or prevent evil) in the future” (Hospers 1977:25). Answers to questions about the type and amount of punishment that should be imposed—which ultimately depend on the answer to the question, “Why punish?”—are similarly varied. For example, the death penalty was once viewed as an appropriate penalty for a variety of crimes other than murder; today its use for even the most heinous crimes has been called into question. Controversy also surrounds the use of incarceration, with some scholars contending that only those who commit the most serious crimes or who pose the greatest danger to society should be imprisoned—and then only for short periods of time—and others claiming that lengthy incarceration is an appropriate penalty for all but the least serious offenders. Finally, there is much disagreement about what to do with offenders for whom incarceration is not appropriate.

Questions about the purpose and distribution of punishment are not simply academic questions. In fact, the answers to these questions provide the foundation on which sentencing policies and practices rest. Legislators, who determine the penalties associated with particular crimes or categories of crimes, cannot make these determinations in the absence of beliefs about the justification of punishment. In other words, a legislator’s views of the goals of punishment affect his or her decisions as to whether burglary should be punished more or less harshly than robbery or whether manufacturing drugs should be penalized more or less severely than possession of drugs. Judges and corrections officials, who must decide what to do with particular offenders, are similarly constrained by their views about the purposes of punishment. A judge’s assessment of the appropriate penalty for a serial rapist—or the parole board’s decision whether to release a serial rapist—will be influenced by personal beliefs about what the punishment is designed to achieve. To understand the sentencing process and to evaluate sentence outcomes, then, we must first consider the diverse and often conflicting goals of sentencing.

In this chapter we address the question of crime and punishment, which David Garland has characterized as “one of the most pressing problems of our age” (Garland 1999:5). We begin by describing and analyzing five different justifications for punishment: retribution, deterrence, incapacitation, rehabilitation, and restitution or restoration. We explain how each theory would answer the question, “Why punish?” We then discuss the allocation or distribution of punishment; that is, according to each theory, who should be punished and how much?

WHY PUNISH?

In “The Brothel Boy,” Norval Morris (1992a) tells the story of District Officer Eric Blair, a young and inexperienced Burmese magistrate who must decide the fate of a young man who has been charged with the rape and murder of a 12-year-old girl. The “brothel boy,” perhaps mimicking the behavior of adults in the brothel where he worked, offered the girl money to have sex with him. She refused, they struggled, and she fell, hitting her head on a sharp rock. Several days later, she died. District Officer Blair wonders whether this unfortunate young man—who is described as “illiterate,” “stupid,” and “quite retarded”— should be punished at all and, if so, what his punishment should be. While acknowledging that the brothel boy should be blamed for what he did, the magistrate questions whether he is guilty of the crimes with which he is charged. “The boy meant no harm, no evil,” he states. “The more I thought about him and his crime, the less wicked it seemed, though the injury to the girl and her family was obviously extreme; but it was a tragedy, not a sin” (Morris 1992a:16).

As he attempts to understand the accused and his crime, Officer Blair discusses the case with Dr. Veraswami, a Burmese physician. Unlike Blair, Veraswami has no doubts about “what should be done with him.” “He will be hanged, of course,” Veraswami tells Blair. Officer Blair argues that the brothel boy “meant no harm insofar as he understood what was happening” and therefore is “less worthy of being hanged than most murderers” (Morris 1992a: 16). Dr. Veraswami disagrees:

He was conscious of what he was doing. And being conscious, backward and confused though he iss, mistreated and bewildered though he wass, he must be held responsible. You must convict him, punish him, hang him . . . you must treat him ass a responsible adult and punish him. (P. 19)

When Officer Blair asks the doctor whether there is no room under the law for mercy, for clemency, the doctor replies, “Justice, Mr. Blair, iss your job. Justice, not mercy” (p. 21). Eventually, of course, the brothel boy is hanged.

According to Dr. Veraswami, justice requires that the brothel boy be punished. But why is this so? Why is punishment, rather than forgiveness or revenge, the appropriate response to his offense? What purpose does punishment serve in this case?

As noted earlier, questions such as these have long intrigued philosophers and legal scholars. In the sections that follow, we define punishment and discuss the justifications for its imposition.

The Concept of Punishment

Before we can answer the question, “Why punish?” we must explain what is meant by punishment. According to H. L. A. Hart (1968:1), an English philosopher, there are five necessary elements of punishment:

• It must involve pain or other consequences normally considered unpleasant.
• It must be for an offense against legal rules.
• It must be of an actual or supposed offender for his or her offense.
• It must be intentionally administered by human beings other than the offender.
• It must be imposed and administered by an authority constituted by a legal system against which the offense is committed.

Stated more simply, punishment involves infliction by the state of consequences that are considered to be unpleasant on a person who has been convicted of a crime. According to this definition, the judge who sentences a man convicted of murder to 30 years in prison is imposing a punishment on him. The prison sentence is an “unpleasant consequence,” the penalty is imposed on a man found guilty of murder, which is an offense against the legal rules, and the penalty is intentionally imposed by a judge who has the legal authority to order and implement it.

It may be easier to illustrate the concept of punishment by explaining what punishment is not rather than what it is. According to Hart’s definition, individual and group acts of vengeance do not constitute punishment. Neither the man who avenges his sister’s rape by physically assaulting her alleged attacker nor the mob that snatches the condemned man from the local jail and lynches him is imposing punishment. Although both cases involve “pain or other consequences normally considered unpleasant,” neither incorporates all the necessary elements of punishment. In the case of the man who avenges his sister’s rape, the person attacked may not actually have committed the crime, and the brother does not have the legal authority to administer the consequences. And even if we assume that the condemned man has been found guilty of a crime, the lynching mob does not have the authority to seize him and put him to death.

In these two scenarios, the unpleasant consequences do not constitute punishment because they are not administered by someone with the authority to do so. But not all government-administered consequences, no matter how painful or unpleasant, are punishment. Consider the forced relocation of more than 100,000 Japanese Americans living in California during World War II. Although the order was issued by the president of the United States and the consequences—internment in relocation camps and, in some cases, loss of property— were certainly unpleasant, the Japanese Americans were not guilty of an offense against the legal rules. They were rounded up and forced to relocate because of a belief that they constituted a threat to national security, but they had committed no crime. Another example would be a government-ordered quarantine of people with an infectious disease. In this case, the government legitimately confines these people to their homes not because of any crime they have committed but because doing so will control the spread of the disease. In both of these situations, there was no crime, and therefore there can be no punishment.

Some scholars add a sixth essential feature to Hart’s five-part definition of punishment. They contend that the person ordering or administering the unpleasant consequences must have a “justification” for doing so (see Packer 1968; Walker 1991). As Walker notes, “A justification is called for because what is involved is the imposition of something unpleasant regardless of the wishes of the person on whom it is imposed” (Walker 1991:2). It is to this issue—the justification of punishment—that we now turn.

The Justification of Punishment

Consider the following hypothetical situation. A federal district court judge sentences Jason Miller, a first-time offender who has been convicted of selling 5 grams of crack cocaine to an undercover narcotics officer, to 5 years in prison. When asked why she imposed the sentence she did, the judge replies, “Five years is the mandatory sentence under the federal sentencing guidelines; it is the sentence prescribed by the law.” Is this a sufficient justification for the punishment imposed? It is certainly true that the judge has the legal authority to impose the prescribed penalty. However, this does not explain why this punishment—indeed any punishment at all—is justified in this case. The judge’s response tells us nothing about the purpose for which the punishment is imposed.

Why do we punish those who violate the law? Although the answers to this question vary widely, they can be classified into two distinct categories: retributive (desert-based) justifications and utilitarian (result-based) justifications. According to retributive theory, offenders are punished because they have done something wrong, something blameworthy, and therefore deserve to be punished (Hospers 1977; Moore 1968; von Hirsch 1976). In other words, retributive justifications of punishment “rest on the idea that it is right for the wicked to be punished; because man is responsible for his actions, he ought to receive his just deserts” (Packer 1968:37). In contrast, utilitarian justifications of punishment emphasize the prevention of crimes in the future. Punishment is seen as a means of deterring offenders from reoffending or discouraging others from following their examples (deterrence) or preventing offenders from committing additional crimes by locking them up (incapacitation) or reforming them (rehabilitation). Whereas retributivists equate punishment with desert, utilitarians justify punishment by the results it is designed to achieve.

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BOX 1.1

Why Do We Punish Those Who Violate the law?

Retribution

We punish those who violate the law because they have done something wrong. Justice demands that the guilty be punished.

Every guilty deed

Holds in itself the seed

Of retribution and underlying pain

—Henry Wadsworth Longfellow,
The Masque of Pandora (1875)

Deterrence

The purpose of punishment is to prevent those who are punished from committing additional crimes in the future (specific deterrence) or to deter others from committing similar crimes (general deterrence).

Not that he is punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice, or at any rate, abate much of their evil-doing.

—Plato, Laws II 934 (in Gottfredson
and Gottfredson 1988:143)

Incapacitation

The purpose of punishment is to isolate high-risk offenders in order to limit their opportunities for committing crimes in the future.

The longer a murderer, rapist, child-molester, or armed robber is detained the fewer the people he will victimize in the future.

—Nigel Walker, Why Punish? (1991:38)

Rehabilitation

The purpose of punishment is to reform the offender and thus to reduce his propensity to commit crimes in the future.

In revenges or punishments men ought not to look at the greatness of evil past but at the greatness of the good to follow, whereby we are forbidden to inflict punishment with any other design than for the correction of the offender and the admonition of others.

—Thomas Hobbes, Leviathan ([1660] 1998:101)

Restoration

The purpose of punishment is to repair the harm to the victim and the community, to heal the victim and the community, and to restore harmony between victims and offenders.

Restorative justice has evolved from predominantly victim-focused mediation to a comprehensive approach that views crime as a rupture in relationships and attempts to restore victims and communities, mend relationships, and build communities. Practices increasingly include face-to-face meetings involving families, friends, other supporters, and local community members.

—Leena Kurki, “Restorative and Community
Justice in the United States” (2000:239)

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These justifications of punishment are summarized in Box 1.1 and discussed in detail in the sections that follow. We begin with a discussion of retribution, which we call desert. We then discuss the various utilitarian, or result, rationales: deterrence, incapacitation, and rehabilitation. We conclude with a discussion of restorative justice, a utilitarian justification for punishment that emphasizes repairing harm and rebuilding relations between victims, offenders, and communities.

Retribution: A Theory of Desert

The retributivist’s answer to the question, “Why punish?” is straightforward. We punish the man who violates the law because he has done something wrong; justice demands that he be punished. Stated another way, “we are justified in punishing because and only because offenders deserve it” (Moore 1992:188). Although some might suggest that this sounds like vengeance, Hospers emphasizes that retribution should not be confused with vengeance. “It is not punishment for punishment’s sake, nor the infliction of pain for pain’s sake, that is the justification for punishing. . . . It is rather punishment for the sake of justice” (1977:22). In the case of Jason Miller, the offender convicted of selling crack cocaine, if the judge were a retributivist, she would justify punishing him by pointing out that he was guilty of a crime and therefo...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Preface
• Acknowledgments
• 1. The Goals of Sentencing
• 2. The Sentencing Process
• 3. How Do Judges Decide?
• 4. Sentencing Disparity and Discrimination: A Focus on Gender
• 5. Sentencing Disparity and Discrimination: A Focus on Race and Ethnicity
• 6. The Sentencing Reform Movement
• 7. The Impact of Sentencing Reforms
• References
• Index
• About the Author