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March 31, 2024

"Shocking Sentences"

The title of this post is the title of this new article authored by John B. Meixner Jr. now available via SSRN. Here is its abstract:

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds.  Most arguments focus on how sentences arising from these penalties are disproportionate — that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: they lead to sentences that are totally unexpected — indeed, shocking — to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences.

We can better understand the problem of shocking sentences (and how to solve it) by understanding the psychological phenomenon that likely causes it: the exponential growth bias.  Across a number of domains, people making quantitative decisions tend to presume linear growth will occur, even in light of evidence that the growth is exponential.  I argue that this phenomenon happens in sentencing as well, and explains — at least in part — why defendants don’t anticipate these types of sentences.

Understanding the psychological underpinning of shocking sentences helps us understand why they are harmful: they undermine due process and predictability in the law, they limit potential deterrence, and they’re out of line with everyday intuitions about sentencing.  Flatly, they’re bad sentencing policy, and we should reduce them or eliminate them outright.  But even if eliminating shocking sentences is politically untenable, there may be ways to reduce the effect of the exponential growth bias.  Applying lessons learned from the psychological literature, I suggest ways to provide increased notice of recidivist sentencing provisions aimed to make them less shocking.

March 31, 2024 at 07:36 PM | Permalink


Since a lighter message didn't get through perhaps shock is what is needed.

Posted by: Soronel Haetir | Mar 31, 2024 10:31:14 PM

Why does “shocker” have to go in one direction only?

Silly me. I know the answer.

Posted by: TarlsQtr | Mar 31, 2024 10:41:44 PM

I think higher sentences for recidivists are the way to go. But I think the ramp-up should be a smooth, and probably rapidly increasing, curve. Not a sudden jump when certain criteria are met.

Federal Sentencing Guidelines criminal history make a lot of sense, though they could probably stand to count criminal history more than they do.

Laws that depend on difficult-to-resolve questions such as whether or not crime X is a "crime of violence", then use the result of that to raise the penalty by a double-digit number of years, are not such a good idea.

Posted by: William Jockusch | Mar 31, 2024 11:31:02 PM

The 845-year long sentence that my friend Sholam Weiss received for his convictions on 74 counts of white-collar crimes arising out of the looting of National Heritage Life Insurance Company in 2000 is one of the longest sentences ever rendered by a Federal Judge in American history. Weiss' 1999 trial lasted for 9 months in the Middle District of Florida. Weiss had posted $500,000 in cash bail, which he forfeited. The Judge was pissed that Weiss disappeared a few days before the jury rendered their verdict, so he as convicted and sentenced in absentia. The angry Judge gave Weiss the statutory maximum sentence for each of the 74 (or so) counts of conviction and ran all counts consecutive to one another to reach 845 years, and to achieve what the Sentencing Guidelines call "total punishment". It is doubtful that the Judge would have been so punitive if Weiss had no fled, but had remained in Court for the verdict and sentencing. The 150-year long sentence that Bernie Madoff subsequently received arose out of a 35-year fraud and ponzi scheme that involved more than $20 billion. Interestingly, Weiss' investment strategy of buying troubled mortgages for NHLI at a large discount ultimately paid off. As he had predicted, the mortgages performances turned around and increased dramatically in value, to the point that at a court hearing, the Judge agreed that the restitution had been made and no further restitution was due. Weiss served 81 years of the 845 year sentence, before receiving a commutation from President Trump on his last day in office. Two months later, Weiss had a stroke, from which heh as mostly recovered. Weiss and Trump knew one another from Studio 54 (which Weiss had co-founded) and from Weiss's plumbing supply business, which supplied the Trump family apartment and office buildings with plumbing fixtures and supplies.

Posted by: Jim Gormley | Apr 1, 2024 11:02:54 AM

Weiss served 18 years before his sentence was committed, not 81 years.

Posted by: Jim Gormley | Apr 1, 2024 11:04:40 AM

Shock doesn't have to be a huge sentence. Any small sentence is a shock.
The author leaves out the proclivities of judges and prosecutors. It's a sickness.

Posted by: fluffyross | Apr 1, 2024 1:05:31 PM

Good one tarls.

Posted by: federalist | Apr 2, 2024 6:09:53 PM

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