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February 20, 2008

Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

This phrase in John McCain's speech last night really caught my attention as a sentencing geek: in his most-quoted line, Senator McCain cautions against "the false promises and failed policies of a tired philosophy that trusts in government more than people."  Though I know this is means as an attack on liberal social policies, it strikes me as an especially effective attack line against "tough-on-crime" political rhetoric that seeks to increase incarceration for any and all criminal offenses.

Consider this issue, for example, in the context of white-collar prosecutions and sentencing.  After the Enron scandal, sentences for white-collar crimes went up dramatically.  But this "tough-on-crime" approach did not prevent all the mortgage fraud and predatory practices that helped contribute to the current economic woes.

Of course, an even more obvious example is the seemingly endless "war on drugs."  As long sentences for all sorts of non-violent drug crimes continue to be imposed,  I cannot think of a more fitting setting in which we see, year-in and year-out, politicians promoting "false promises and failed policies of a tired philosophy that trusts in government more than people."

February 20, 2008 at 09:19 AM | Permalink


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Tracked on Feb 20, 2008 11:38:17 PM


A "a tired philosophy that trusts in government more than people" would also be in part responsible for our country's continued practice of the death penalty, by which the State kills one of its own citizens. The citizens must trust the government to get the identification and prosecution of the defendant correct, and have no trust in the possibility of redemption for the individual.

Posted by: Reader | Feb 20, 2008 9:25:34 AM

Granted the phrase "tough on crime" is merely words, and harsher sentences tend to be fleeting, so what do you propose as a solution? Surely lesser sentences send the wrong signal, don't they? Or are "signals" part of the problem? What about the time honored cry for swifter prosecutions, sentencing, and commencement of the sentences?

Posted by: Ernie King | Feb 20, 2008 9:39:38 AM

What do people in our prisons have in common?
1) Most of them are poor
2) Many of them have an alcohol/drug dependence
3) Many of them dropped out of school often by ninth grade
4) A surprisingly large number have some type of disability
5) A substantial fraction have a serious mental heath problem (in particular female inmates)
6) A very high percentage were admitted to prison because of repeated parole/probation violations

The probation violations are particularly troubling because the judge though they were a good candidate for a prison alternative but unfortunately the judge was wrong. Once they are in prison the long sentences and mandatory minimums apply.

What troubles me the most about modern sentencing is that for some offenses the punishment is no longer proportional to the severity of the offense. It appears to me that sentencing policies are arbitrarily tossed out with the trash in a fit of legislative hysteria brought on by public outrage over a heinous crime.

Posted by: John Neff | Feb 20, 2008 11:06:48 AM

Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

It's rhetoric, meant to make a particular point, and not to be applied literally to other things.

The criminal law generally could be said to be "a tired philosophy that trusts in government more than people," but only if one believes that vigilantism and survival of the strongest is the best way to run a country. After all, why trust the government to second-guess the judgment of murderers (who happen to be people) as to who needs killin?

Using the courts instead of the voters to attack so-called "extreme" sentencing is probably closer to what McCain's talking about.

Though I'm sure Obama's speechwriters could find an effective way to argue that whatever Obama opposes falls within the scope of that rhetorical point.

Posted by: | Feb 20, 2008 12:34:59 PM

"lesser sentences send the wrong signal"

I despise this line of reasoning. As I've written here recently, if you want to send a message, rent a billboard. Laws only have legitimacy when they focus on outcomes; they are not, or shouldn't be, public relations tools. Let the pols pay for TV ads if that's what they want to do - that's not the purpose of the prison budget.

If harsher sentences generate worse outcomes, who cares about the "signal" it sends?

Posted by: Gritsforbreakfast | Feb 21, 2008 9:28:59 AM

So, if we are to trust the people more and the government less, should juries play a larger role in sentencing? I don't mean merely in returning a verdict, but in determining the length of the sentence itself. A few state systems (e.g., Virginia) give the jury the statutory max and min terms, and then tell the jury to sentence the defendant.

Posted by: Random Clerk | Feb 21, 2008 1:25:43 PM

Random Clerk, that's what we do in Texas, too. A first degree felony, unenhanced, gets you 5-99 at the jury's discretion.

Posted by: Gritsforbreakfast | Feb 21, 2008 3:11:30 PM

I think it would be great for juries to play a larger role in sentencing, especially in federal court, and I think this is likely what the Framers had in mind. It is also, of course, what happens in capital cases, and in the military, and in setting punitive damages, and...

Posted by: Doug B. | Feb 21, 2008 5:13:19 PM

"What troubles me the most about modern sentencing is that for some offenses the punishment is no longer proportional to the severity of the offense."

Of course sometimes that works to the benefit my clients as well.

Posted by: | Feb 21, 2008 7:45:14 PM

If the minimum is 5 years and the maximum is 20 years and the vote is 2 for 5 years, 2 for 10 years 4 for 15 years and 4 for 20 years what is the rule for computing the sentence? The harmonic mean is 12.8 years, the mean is 14.2 years and the median is 15 years. For a good time credit of 1.2 days for each day served the actual sentence lengths are 5.8, 6.4 and 6.8 years.

If the jury is told about the good time credit will that influence their vote?

Posted by: John Neff | Feb 21, 2008 8:34:47 PM

Professor Berman, I am inclined to agree with you. Good for Texas for giving juries more of a role. I am much more in favor of giving juries discretion in sentening than giving judges such discretion because I think they are more connected to the real world consequences of crime, both to the criminals and to the vicitims.

But perhaps you, and others who are usually seeking lower sentences, should be careful what you ask for. If you let juries see everything a judge sees when making a sentence, I submit that while you will get shorter sentences in many drug cases, you will get longer sentences in other cases, especially in child porn and child molesting cases.

Posted by: Random Clerk | Feb 22, 2008 12:05:27 PM

In Virginia at least from my experience, letting jurors determine the sentence operates to almost completely deprive defendants of the right to a trial by jury. Rarely, if ever, given the lack of parole in Virginia and the large statutory range for most crimes (for example, robbery can result in a sentence from 5 years to life in prison without the possibility of parole) do the defendants take a risk of a jury trial.

Be careful what you wish for when it comes to juror sentencing if you care about the right to a fair trial - experience in Virginia suggests that leads to more bench trials and guilty pleas (since the Commonwealth also has the right to a jury trial they can often extort guilty pleas simply by demanding a trial by jury, especially in drug cases where the guidelines might call for 2 years in prison but the statutory sentencing range is 5 to 40 years in prison).

Posted by: Zack | Feb 26, 2008 10:39:52 AM

I would think that John McCain would be old enough to remember that the first Republican actually said something crazy like this once, "government of the people, by the people, and for the people." Then again the neo McCain is very different than the John McCain the media has been inventing.

Posted by: No John McCain | Apr 12, 2008 8:16:55 PM

Is no one looking at the big picture???? This so called 85.5% law is got the whole system out of wack. Not to mention in oklahoma where the governer is still sighning off on paroles. We are very overcrowding due to this 85 law inmates, loved ones they are people too everyone messes up once in there life and they need a solid ground and judges can't see that never mind the overcrowding lets put someone else in prison.

Posted by: Ashley | Nov 2, 2008 8:05:26 PM

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