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October 1, 2014

Peculiar (judicial?) screed against evidence-based sentencing "fad" based on the "need to be realistic"?!!?

GalI have long been intrigued and generally impressed by the writings and work of Colorado state judge Morris Hoffman.  However, this new USA Today commentary by Judge Hoffman, headlined "Emptying prisons is no panacea: Deterring others matters as much as rehabilitation," has me scratching my head about what prompted a thoughtful judge to produce a peculiar screed against evidence-based sentencing.  At the risk of making this post much too long, I will reprint the whole commentary before explaining why it made my head hurt this morning:

Just days before Attorney General Eric Holder announced his resignation, the Department of Justice announced one of his signature achievements. After growing for decades, the federal prison population has started to decline.  The new data were greeted with wide acclaim, but before we embrace the idea that fewer prisoners is always good, let's step back and consider whether at least one of the drivers of our declining prison population is a good idea.

Like all humans, judges are susceptible to fads.  Anger management became a popular feature of American probationary sentences in the 1980s.  Teen courts and drug courts followed.  The new fad is "evidence-based sentencing."  It is both a refreshing attempt at rationality and a dangerous rejection of human nature.

Evidence-based sentencing purports to redirect judges' attention from old-fashioned retribution to enlightened deterrence and rehabilitation.  Judges across the country are attending innumerable evidence-based sentencing conferences that focus on how incarceration affects recidivism rates.  The claim is that incarceration costs much more than its deterrent benefits.  Judges should think twice before throwing away the key.

We don't need conferences to make that point.  One of the hidden truths of criminal justice is that most judges, including me, give criminals chance after chance before we sentence them to prison.  There are exceptions, such as serious violent crimes and drug crimes that carry mandatory prison sentences.  But, for the most part, defendants have to really work hard to land in prison.

We should applaud efforts to put data over gut instinct when trying to predict the future behaviors of our defendants.  But we also need to be realistic.  There's a reason science stinks at predicting individual behavior.  An almost infinite number of bits of data contribute to human decision-making, including the billions of base pairs in our DNA and a lifetime of brain-changing individual experiences, among other things.  Not to mention that unscientific interloper: free will.

There is a much more serious problem with evidence-based sentencing.  It ignores the most important reason we punish wrongdoers.  When I sentence a bank robber to prison, the idea is not just to deter him from robbing again ("specific deterrence").  I also want to deter other people who might be considering robbing a bank ("general deterrence").

General deterrence is what makes us a civilized society.  It is the glue that holds us together under the rule of law.  It is so deeply engrained, every human society that has left a record shows evidence it punished its wrongdoers.  Indeed, our tendency to punish wrongdoers is most likely an evolved trait, which we needed in order to keep our intensely social small groups from unravelling in selfishness.  By focusing on specific deterrence, evidence-based sentencing mavens ignore 5,000 years of civilized wisdom and 200,000 years of human evolution.

They seem to recognize this failing, but only half-heartedly.  They tend to downplay crimes such as rape and murder to focus on low-harm crimes.  But burglary and theft tear the social fabric more broadly simply because they are more frequent.  Indeed, low-harm crimes are often crimes of cold economic predation rather than hot emotion.  For them, deterrence can be more effective.  Giving thieves and burglars a stern lecture and probation, just because some social scientists tell us prison doesn't rehabilitate them, is a surefire way to increase thefts and burglaries.

Those of us fortunate enough to live in civilized societies owe that civilization to the rule of law, which means nothing without the bite of punishment.  Punishment must be merciful, but it should not be abandoned to misguided claims that it does not deter.

Candidly, this commentary has so many disconnected and illogical assertions, I have too many criticisms to fit into this blog space. But I can start by highlighting how curious it is that the AG's discussion of the reduction in the federal prison population, brought about largely through changes in federal drug sentencing policies and practices, leads to a state judge worrying we risk not punishing "thieves and burglars" enough to achieve general deterrence.  Moreover, AG Holder was bragging last week that in recent years we have lowered prison populations AND lowered crime rates.  What evidence-based sentencing seeks to do is find ways to better achieve both specific and general deterrence without continue to rely so heavily on the very costly and too-often-ineffective punishment of imprisonment.

More fundamentally, what really troubled me about Judge Hoffman's analysis is his misguided and harmful perspectives (1) that focused attention to data and evidence about imprisonment's impact on crime is a "fad," and (2) that only lengthy terms of incarceration constitute "real" punishment that can deter.  On the first point, I wonder if Judge Hoffman urges his doctors not to be caught up in the "fad" of practicing "evidence-based" medicine.  After all, given that  "almost infinite number of bits of data contribute" to human health (not to mention that "unscientific interloper, free will"), perhaps Judge Hoffman encourages his doctors to be "realistic" that he is going to die eventually anyway.  Indeed, perhaps we ought to be suspect about all efforts to improve and extend human life by "evidence-based [medicine] mavens [who] ignore 5,000 years of civilized wisdom and 200,000 years of human evolution" which shows we all end up dead anyway.

Truth be told, what is truly a "fad" in light of "5,000 years of civilized wisdom and 200,000 years of human evolution" is the extreme use of extreme terms of imprisonment that has come to define the modern American experience with punishment.  Brutal physical punishments and public shaming punishment have been the norm and the means use to deter crime in most other societies throughout human history (and in the US until fairly recently).  Moreover, all serious social and scientific research on human behavior has demonstrated that the swiftness and certainty of punishment, not its severity, is critical to achieving both specific and general deterrence.  That is one (of many) reasons evidence-based sentencing makes long-terms of imprisonment look a lot less effective, at least relative to its high costs, than various other possible punishments.

I could go on and on, but I will conclude by encouraging everyone to appreciate that evidence-based reforms in lots of settings often provoke these kinds of old-world reactions: typically, folks who benefit from or prefer an old-world "faithful" view about how they think the world works will be eager to question and seek to discredit reformers who suggest science and data provides a new perspective that requires significant reform and changes to the status quo.  And though I always hope to show respect for old-world "faithful" perspectives, I get worked up by attacks on evidence-based reforms because I am ultimately much more a creature of science than a creature of faith.

October 1, 2014 at 10:21 AM | Permalink


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To me this just looks like people are starting to notice the horrifying draconian system that's been built, and this is a way to make sure that good and decent folks (like them and their family) are not subject to it.

Evidence-based punishment will be adopted only to the extent that the "evidence" shows those nasty people across the tracks should get the stick--and hard--but it won't apply to them.

Kinda like Calvinism now that I think about it.

Posted by: Boffin | Oct 1, 2014 11:42:33 AM

"[F]or the most part, defendants have to really work hard to land in prison."

Maybe in Colorado and other states with primarily discretionary sentencing. But not in the federal system, where the sentencing guidelines, even though technically advisory, generally make landing in prison very, very easy, and avoiding prison very, very hard.

Posted by: AFPD | Oct 1, 2014 12:05:54 PM

"Moreover, all serious social and scientific research on human behavior has demonstrated..."

But that's a rank appeal to evidence, Professor, which is the whole problem. Checkmate, I'm afraid. Checkmate.

Posted by: Michael Drake | Oct 1, 2014 1:07:05 PM

I agree with the Judge but for entirely different reasons. Evidence based sentencing is a fad; it's a feel good slogan that seeks to befuddle people into not asking the key question: what counts as evidence? And when we look at that question we find that what counts as evidence is mostly statistical garbage that is pulled right out of "How to lie with statistics". It is the same abuse of the social sciences that we see in Atkins. Sociological research doesn't have to prove anything beyond a reasonable doubt, most of the time it can't prove anything at all...it merely offers up a correlation.

"But that's a rank appeal to evidence, Professor, which is the whole problem. Checkmate, I'm afraid. Checkmate."

The fundamental problem is that peer-review and a legal trial are two fundamentally incompatible modes of truth seeking. One is based on consensus and collegiality and the other is based upon fighting--an adversarial system. We social scientists shouldn't play dumb; we are tools being used in someone else's war. We palter with our authenticity at our peril.

Posted by: Daniel | Oct 1, 2014 3:33:05 PM

Daniel, I'm not sure I see how the fact that our system is adversarial gives a sentencing court license to ignore evident, robust consensus in the social sciences. But if that's the license it provides, then the problem is hardly confined to sentencing.

Posted by: Michael Drake | Oct 1, 2014 3:50:13 PM

AFPD--as it should be. If you find yourself in the crosshairs of the federal authorities, chances are this is not your first rodeo. Indeed, outside of the white collar context most federal defendants are frequent flyers who have been participating in the state's "catch and release" program for years. If the system functioned as it should (not saying it currently functions this way all the time), the federal system would be reserved for the worst offenders. So, we would expect those people to land in jail most of the time. If you have been convicted umpteen times previously and still can't seem to know the difference between right and wrong, then I have no sympathy for you when the federal hammer comes down.

Posted by: Anon | Oct 1, 2014 4:39:54 PM

"ignore evident, robust consensus in the social sciences..."

And those findings would be?

Posted by: Steve | Oct 1, 2014 7:06:54 PM

"And those findings would be?"

See, e.g., "Five Things About Deterrence," from the DOJ-funded National Institute of Justice.

Posted by: Michael Drake | Oct 1, 2014 7:27:11 PM

Bad syntax on that link. The url is http://nij.gov/five-things/Pages/deterrence.aspx.

Posted by: Michael Drake | Oct 1, 2014 7:28:04 PM

Will a lawyer please comment on the following appellate argument?

Punishing a defendant to scare a future criminal he has never met and over whom he has no influence because he does not exist yet is called general deterrence.

General deterrence violates the procedural due process right to a fair hearing guaranteed by the Fifth Amendment.

Any utterance alluding to general deterrence in the least is unfair, unethical, and unlawful. It should result in an immediate motion for a mistrial, the recusal of any judge making the utterance, and the impeachment of any judge repeateing it after reversal on appeal.

Is this argument not self evident? Has this argument never been used? Isn't it absolutely simple minded and common sensical?

Posted by: Supremacy Claus | Oct 1, 2014 11:31:18 PM

There are numerous and extreme problems with evidenced based medicine. I can extensively review them if anyone is interested since they also apply to evidence based jurisprudence. To start, very briefly. It appears that medical leaders played hookie the very first day of class of 11th grade Statistics. The error being made in its application is elementary and maddening to anyone who did attend Day One of 11th grade statistics. Such a person wants to bang his head at the wrongheadedness of the majority of research, making most of it worthless.

Posted by: Supremacy Claus | Oct 1, 2014 11:36:27 PM

From the robust literature cited (i.e., "Five Things About Deterrence"):

1. The certainty of being caught is a vastly more powerful deterrent than the punishment.
2. Sending an offender to prison isn’t a very effective way to deter crime.
3. Police deter crime by increasing the perception that criminals will be caught and punished.
4. Increasing the severity of punishment does little to deter crime.
5. There is no proof that the death penalty deters criminals.

The author is Daniel S. Nagin.

I'm not sure what this science is suppose to tell us other than some things are rather obvious while other "findings" are not as robust as they often appear to be or are mere question begging. The truth is that when it comes to this sort of science, the closer one looks the less impressive the results tend to be. But your mileage mat vary.

Posted by: Steve | Oct 2, 2014 1:25:39 AM

Here, the death penalty saves many lives and is not controversial. The vehicle and its chemicals might be imported by states troubled by supply shortages.


Posted by: Supremacy Claus | Oct 2, 2014 1:58:34 AM

"There is no proof that the death penalty deters criminals."

We addressed general deterrence as unlawful.

As to specific deterrence, it is not so. It is getting rid of the person. An expulsion, not a punishment. So the Eighth Amendment should not apply to the death penalty.

But say, at the policy level, general deterrence was valuable. By analogy, everyone agrees, penicillin is a miracle remedy. Before it, 90% of bacterial pneumonia patients died. After it, 90% survived. Miracle. No?

Now, give penicillin 7 years after the onset of pneumonia. Give it to 1 in 100 pneumonia patients. Among those getting penicillin, have it so that 20% of patients do not have bacterial pneumonia. Then price it at $5 million a dose. How does penicillin look now?

Posted by: Supremacy Claus | Oct 2, 2014 2:04:48 AM

Anon at 4:39,
Crosshairs and rodeos aside, in my jurisdiction, the fed beast is feeding on any and all offenders. I have many examples (especially the feds' new business-generator in the child porn industry) but this one will adequately show my point. I had a first timer, with absolutely no criminal history whatsoever, get caught up in some ridiculously-named federally-run, multi-agency task force "operation" to make the world safe from the scourge of the crack-cocaine epidemic, blah, yada. . .who was personally liable for only about 2 grams of cocaine spread out over two weeks comprised of about six transactions. He was very representative of the type of defendant scooped up by this task force: low-level, nickel-and-dime rock-slinger, living with parents, no criminal history, etc. Because the operation did not get anyone the feds could annoint with the title of "kingpin" or Mr. Big, or whatever, they tacked together all of these street kids into some sort of conspiracy, and, you got it, everyone was responsible for all the weight sold by this "conspiracy" over the course of the surveillance and observation. A complete farce and a waste of time and treasure. My guy would have been sentenced to less than two years under state law due to the comically low amount of drugs he actually sold, but went down for nearly 12 under the fed system and its "relevant conduct." And another kid stepped right into my guy's spot as soon as he went down.

Posted by: MarK M. | Oct 2, 2014 2:39:17 AM

"General deterrence is what makes us a civilized society. It is the glue that holds us together under the rule of law. It is so deeply engrained, every human society that has left a record shows evidence it punished its wrongdoers. Indeed, our tendency to punish wrongdoers is most likely an evolved trait, which we needed in order to keep our intensely social small groups from unravelling in selfishness. By focusing on specific deterrence, evidence-based sentencing mavens ignore 5,000 years of civilized wisdom and 200,000 years of human evolution."

This paragraph in nothing but a nice "warm and fuzzy" set of platitudes that the judge uses to justify his existence. Thus was he indoctrinated (like one C&C blogger) and so it must be right. I suggest that he read "The Folly of Fools, The Logic of Deceit and Self-Deception in Human Life" by Robert Trivers.

Posted by: albeed | Oct 2, 2014 8:47:55 AM

The "hostage system" is a complete failure. Drug Prohibition and the cratering of middle and lower class incomes is what has driven our society over the cliff. After Vietnam, we went onto permanent war footing, an endless war against human nature, driven by greed. We need to find a peaceful solution and achieve a global drug amnesty.

Posted by: Gary Wainwright | Oct 2, 2014 11:25:47 AM

"I'm not sure what this science is suppose to tell us..."

What it tells us, for example, is that if a sentencing judge is thinking about increasing a sentence for purposes of deterrence, then that judge's thinking probably isn't very sound. You could dispute that the social science on this point is robust, I suppose; but there's not much disputing that the point (if true) has pretty clear practical implications for a federal sentencing judge.

Posted by: Michael Drake | Oct 2, 2014 2:23:46 PM

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