Ever since imprisonment was enthusiastically accepted in the nineteenth century as a humanitarian alternative to the hanging rope and the whipping post we have been uncertain about just what it is supposed to do. The Quaker vision of moral regeneration through harsh solitude soon faded, but confinement has until recently remained the staple response to all but petty crime. Today the American prison population is not much less than 500,000.
There are several reasons why it is impossible to do without imprisonment. For very serious crimes a lesser response would in most cases not be perceived as adequate. While we must not exactly match punishments to the crime (should we rape the rapist or throttle the mugger?), anything falling below a certain proportionate degree of severity would simply not be understood as constituting punishment at all. A $1000 fine for murder looks more like a sumptuary tax than a punishment.
If this sense of fairness calls in some cases for a degree of severity that only imprisonment can acceptably supply, so also does the practical need for deterrence that preeminently justifies the penal system. Judge Forer, in her book on sentencing, is scornful of deterrence as a goal on the ground that many offenders repeat their crimes (so that deterrence clearly did not work for them), while most other people never get to hear of sentences imposed on particular defendants. But this is a prime mistake. The theory of deterrence does not rest on the belief that imprisonment can be exactly calibrated to stop an offender from repeating his crime or to dissuade others from emulating him. It asserts more generally that knowledge of the existence of a seriously punitive process is an important element in keeping most of us more or less law-abiding.
For many people the process of accusation and trial (or pleading guilty) is only perceived as truly degrading and depriving because imprisonment is known to be a possible outcome. Cases are fought desperately, money is spent, motions are filed, and appeals are taken in the effort to keep defendants out of prison. (This is a reason why imprisonment is often unnecessary in some white-collar crimes where the inevitable loss of office, job, or professional license may be a sufficiently awful outcome.) In theory it may not be necessary that any offender should actually be sent to prison. As Bentham suggested, deterrence could be served if people were deceived into believing that criminals were severely punished when in truth they were not. But since such a deception is impractical and objectionable the only way to maintain deterrence is to imprison the worst offenders. We cannot of course say how many people would commit serious crimes if there were no prospect of incarceration, but the number would surely be much greater and gravely threatening.
There is a clinching reason why imprisonment cannot be dispensed with. Some criminals are so dangerous that confinement is socially welcome because it partly incapacitates them. (Only partly since many violent crimes are committed in prison.) This motive of social defense is independent of the aims of punishment and it works very inefficiently since an offender may continue to be dangerous after release. It is nevertheless a useful bonus.
But however deserved or necessary imprisonment may be in some cases, we must rigorously question the need for the horrifying social costs of keeping nearly half a million people confined, often in inexcusably brutal and degrading conditions. A parliamentary working paper in Britain has recently concluded that a prison population there of under 50,000 is intolerably burdensome, although this is proportionately less than half that of the United States.
Judge Forer is then clearly right in making the choice of whether or not to send an offender to prison the critical question in her book on punishments. She sat for ten years in the Court of Common Pleas in Philadelphia, presiding over a wide variety of criminal cases, and her experience has led her to identify sharp disparities in sentencing as a prime vice of our criminal justice system. For example, the director of the Federal Bureau of Prisons pointed out a few years ago that the average sentence for forgery in the northern district of Mississippi was sixty-eight months, while in southern Mississippi it was seven months. Judge Forer bravely wants to propose standards that might avoid such inequities but her attempt suffers from a lack of mastery over the scholarship in the field and a failure to state the primary questions with sufficient clarity.
In trying to refine our selection of those who go to prison and to seek for rough equality in sentencing we must answer three related questions at the outset. First, should principles and guidelines for sentencing be codified or otherwise authoritatively developed? Second, if principles of this kind are to be stated authoritatively, who should be charged with developing them? Third, who should make final dispositions of individual offenders? American criminal justice systems have never found fully successful answers to these questions.
The history of sentencing practices reveals that during the late nineteenth century the emphasis was on a legislative approach, with statutes fixing sentences so that courts had little discretion. Later on, considerable freedom was afforded to judges to specify sentences within wide bands of statutory maximum and minimum terms. More recently the dominant practice has been the indeterminate sentence where the most important authority has rested with an administrative agency, the parole board. But each of these solutions has involved nothing more than different officials being designated to make the most important decisions; and there has never been any detailed development of principles of sentencing either by legislatures, the judiciary, or parole boards. This lack of theory has left American sentencing policies rudderless.
Plagued by the universal phenomenon of inflation in the crime rate and eager to appear responsive to popular anxiety, some legislatures and public bodies have recently enacted or recommended a return to the old model of sentencing ranges rather narrowly fixed by the legislature or some appointed commission and with which a judge must comply unless he can demonstrate a special justification for a different sentence. So at first sight it might seem that it has taken a century to make a circular tour marked only by the wreckage of failed experiments.
The situation is in fact not quite so hopeless. The new “presumptive sentence” approach, as it is often called, is (in its most thoughtful versions) distinguished from its predecessors by an attempt to construct a coherent “tariff” that fixes a range of prices an offender must pay.1 The principles underlying the tariff try to take into account the nature of the offense, the harm caused, the previous record of the offender, and other aggravating or extenuating circumstances. For example, if we start with a posited “typical” three-year sentence for the illegal distribution of methaqualone (quaaludes), we could subtract time for the youth of the offender, his minor role in the enterprise, the small amount distributed, and so forth. Or we could add time for the large scale of the operation, the supervisory role of the defendant, or his previous drug convictions. Judges of course have always acted on these considerations. What the presumptive sentence approach does is to endeavor to state them openly and systematically and impose them as authoritative guidelines. This would certainly render individual sentences subject to more principled scrutiny.
Nevertheless Judge Forer distrusts this legislative approach and argues instead for reliance on the wisdom of the individual judge. This might be well enough if the bench were occupied by Solomons. Unhappily, judges of the sensitivity that Judge Forer displays much of the time may not be in a majority. Unduly severe or excessively lenient dispositions are frequent, resulting in enormous disparities in sentences for roughly similar offenses within the same jurisdiction. The only cure for this malady is the development of a jurisprudence of sentencing administered by an authoritative reviewing body. Judge Forer seems to sense this and herself tries to supply some guiding classifications, but her attempt is largely unsuccessful.
For example, she proposes that people found guilty of “the irrational commission of a violent or dangerous act resulting in death or serious bodily injury” should be imprisoned for life without possibility of parole. Under this provision the insanity defense would be abolished and the jury would decide only whether the act was “irrational.” Judge Forer appears to believe that, while a finding of insanity is unreliable, the designation of an act as “irrational” is a sure enough touchstone for true life imprisonment. But the present law, in asking the jury to concentrate on the relationship between the act and the defendant’s capacities and mental state, seems more precisely directed at the most relevant questions. Judge Forer’s attempt to divorce the quality of the act from the defendant’s state of mind is quite impractical. An act has no qualities relevant to rationality except in terms of the actor’s state of mind to which the jury would inevitably turn in its deliberations. In the end Judge Forer’s apparently novel proposal would simply obscure the real questions and accomplish nothing more than a confusing transfer of epithets.
Some of Judge Forer’s examples of her own judicial dispositions of particular cases are often questionable, and reveal the brashness of her classifications. In one of her cases Alfie’s girl-friend left him and went to live with Gerald (the names are fictitious). Alfie bought a gun, went to Gerald’s house in the middle of the night and shot Gerald in the face when he opened the door, causing total blindness. Judge Forer sentenced Alfie to nineteen years probation on condition that he pay Gerald $25 a week.
On the facts given this seems a misconceived and socially dangerous disposition. Under the judge’s own categories the first question ought to be whether Alfie’s act was irrational, for, if it were, he would merit life imprisonment. But Judge Forer does not even raise this point. The considerations she does bring to bear (Alfie’s future danger to the community, the cost of imprisoning him, the merit of some compensation paid to Gerald) would certainly be relevant in many cases but here they are overwhelmed by the terrible quality of the act done. Gerald ought of course to receive compensation but, if there is no other way, the State should assume that obligation rather than release Alfie just to pay $25 a week. Imprisonment is the only response denunciatory enough to prop up the inhibition against violence in situations where jealousy incites a passion for revenge. A long period of probation with a condition of paying compensation to the victim would certainly be appropriate, but only after a period of confinement.
Judge Forer’s often wise but sometimes eccentric stabs at sentencing proposals are typical of the American weakness in this field. Courts of appeal in some American jurisdictions (notably US federal courts) have no general power to review a sentence. Where the power does exist, as in New York, it is usually exercised as no more than a limited jurisdiction to correct a blatant abuse by the trial court. Appellate courts in New York and other states do not make a regular practice of reviewing and correcting sentences, accompanying their rulings with a statement of principle and comment on the application to the facts of the case. The result is that American jurists have been deprived of the opportunity to create a jurisprudence of sentencing.
Limited attempts can be made by scholars to penetrate the uninformative flatness of individual dispositions through statistical analyses and interviews with judges. Some of these efforts are very valuable, like the recent study of sentencing white-collar criminals in federal courts by Mann, Wheeler, and Sarat.2 But they are no substitute for a routine scrutiny of sentences by a reviewing tribunal that can expound underlying principles, furnish specific guidelines, and eliminate the vicious inequities of gross disparity in dispositions.
A neighborly model exists for such a system. For some decades the Criminal Division of the Court of Appeal in England and Wales has engaged in systematic scrutiny of sentences, explaining many of its revisions or affirmations in short memoranda. The practice of the English Court of Appeal has been invaluably described and analyzed in The Principles of Sentencing3 by D.A. Thomas of the Cambridge Institute of Criminology, perhaps the most important practical study of sentencing published in English and a book significantly never mentioned by Judge Forer.
Under the guidance of the Court of Appeal the English courts have developed an approach under which an offender will normally receive what is known as a “tariff” sentence. The ranges of tariff sentences and their justifications have been developed by judges, at both the trial and appellate levels. For example, with the offense of intentionally causing serious bodily harm, Mr. Thomas’s study notes that the middle (and most frequently imposed) tariff sentence is from three to five years. Within this range sentences may vary according to the nature of the weapon used, the amount of deliberation, the actual injury caused, and the degree of provocation. Occasionally sentences go under the three-year mark, where there was considerable provocation or the injury was caused on impulse and is not extremely serious. Sentences may go up to eight years where there was cool deliberation and the use of a lethal weapon. The eight-to-twelve-year range is reached where grave injuries were deliberately inflicted in the course of committing another crime. Judge Forer’s Alfie would hardly get less than five to eight years in England.
The tariff may be abandoned where the courts feel that some special circumstance calls strongly for different treatment. Such a special circumstance might be strong evidence of prospects of rehabilitation, the mental state of the offender, his extreme record of recidivism, or demonstration of continuing grave threats to the public. Depending on the nature of the special element the individualized sentence might be much more lenient or much more severe than that indicated by the tariff. Interestingly, the English Court of Appeal often tries to help an offender break out of a recidivist tendency by granting a “last chance” period of probation when, under the tariff, a long term of imprisonment would be indicated.
The basic principles of this approach to sentencing are not very different from the “presumptive sentence” now becoming fashionable in the US. The vital difference is in institutional method. Even the proposed revision of the federal criminal code, while giving the circuit courts a power to entertain an appeal against sentence, will not necessarily lead to active appellate review as is the case in England. But this is the one indispensable innovation without which no general sentencing policy can be implemented and no consistency achieved. However busy the calendars of appeal courts, American sentencing practices will always lack a foundation of principle until these courts take up and discuss the trial court’s disposition of the offender with the same gravity and subtlety that they bring to questions of law underlying the finding of guilt.
November 20, 1980