Real Sentencing: Not Nearly As Interesting
People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU'D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect.Ken goes on to provide a working explanation of the federal Sentencing Guidelines, which (according to the USSC, at least) still provide the starting point for federal sentences. Every criminal defense lawyer who practices in federal court is well aware of the impact of the Guidelines. Indeed, one of the first things we do is get a working understanding of how the Guidelines would apply in a case, so that we can explain to our clients what they are facing.
The problem is this number — the sum of the maximum sentence for all the crimes charged in a federal case — usually bears almost no relation to the sentence the defendant actually faces.
For those who think these stories of ELEVENTY MILLION YEARS influence plea decisions, they fail to comprehend that there are lawyers involved who, assuming they know their function, have provided a more accurate assessment. That said, the numbers under the Guidelines are often high enough to scare a defendant into a plea. The statutory maximums aren't needed for that, even if we didn't dispel the silliness off the top.
The fact is that stories of crime and punishment have long fascinated people, and so they are reported with abandon. By abandon, I mean inaccurately. Repeating statutory max's is a common mechanism to catch people's interest, to take the story from the sublime to the ridiculous. After all, who wouldn't be astounded that whale sushi could land a chef in prison for ELEVENTY MILLION YEARS!!!
The problem is that it makes people stupider. This became painful during discussion of the Aaron Swartz suicide, where story after story recited that he faced decades in prison. Of course, there was no potential of that ever happening, but this framed the discussion and skewed any potential for meaningful discussion of what was wrong with the system. It detracted from focus on the real problems by presenting an absurd strawman problem. So many fine minds lost to such nonsense.
Whether non-lawyer or lawyer who doesn't practice criminal law, the interest in the criminal justice system remains strong and broad. This is a good thing, as the more people interested means the more people who will pay attention to the things that go horribly wrong and the need to change for the better. But that positive is obscured when the wrong isn't real, but just a rhetorical trick played by the ignorant or deceitful.
While many reporters simply don't understand that these numbers are a meaningless sham, some do and play them up anyway. It creates controversy and gets them readers, and that's more important than illuminating. Ironically, when a criminal defense lawyer tries to straighten out the misinformation, we're frequently told that we're the idiots who don't get it. After all, how can so many credible sources be wrong?
Ken's post was a public service. I wish I had written it, but deeply appreciate that Ken did so. If this takes some of the pizzazz out of the stories for you, and makes them a bit less fascinating, them's the breaks. From where I sit, the stories are harsh enough when based on reality rather than some statutory max flight of fantasy. Better we discuss the real issues than engage in fantasy.