Since 97% of all criminal prosecutions result in conviction, sentencing is a matter of universal concern to all practitioners of criminal defense law.  Yet many have never given sufficient thought to what constitutes the legitimate purposes of sentencing.  The impetus for this discussion comes from Mark Bennett’s discussion.  As he has done amazing work with higher order issues, I realized that some of the basics remain untouched.

Before turning to the criteria, consider this.  In New York, with indeterminate sentencing, how does a judge arrive at a sentence of 22 years?  Why not 19 years, 7 months?  Frankly, the numbers are relatively loopy.  When the Legislature provides a span of 15 to 25 years at the bottom of the sentence for murder, why do judges routinely ignore the 15 to 20 span, and start at 20 to 25 to life?  On the lower end of the spectrum,

I recall a judge (now on the Appellate Division, First Department) who invariably refused to consider a sentence of time served for marijuana because “You know I don’t do that,” even though the Legislature determined that to be a proper sentence.  Since when do judges get to reject viable sentences because, well, just because?

And finally, consider cases where the defendant is a predicate felon who is convicted of a felony that, as an element, includes a prior conviction to elevate its degree from misdemeanor.  The defendant is thus twice punished for his prior.  This would be double counting under the guidelines, but is part of the sentencing scheme in New York because the Legislature neglected to recognize how the various parts of the law impact each other.

The following discussion relates solely to state criminal law, since the feds use the “advisory” guidelines, which may be mandated or advisory, according to which day of the week it is.  But the Guidelines present entirely different issues, and since the vast majority of defendants are sentenced under state law, this post intends to limit itself to state sentencing.

In order to structure an argument that goes beyond some judge’s visceral reaction to your client or the crime, which generally results in a sentence that defies rational explanation, I offer the following.  There are 4, and only 4, legitimate purposes of sentencing:  Specific Deterrence, General Deterrence, Rehabilitation and Incapacitation. 
Hey, wait a minute.  Didn’t you forget Retribution?  Nope.  Retribution, vengeance, whatever you want to call it, is not a purpose of sentencing.  We do not imprison people for the sheer joy of hurting them.  The “eye for an eye” theory of punishment has no place in our criminal justice system.  It’s conceptual basis is that of a rational system designed to provide a positive outcome rather than simply a way to vent one’s anger toward another.  Victims of crime will be outraged by this, but the State does not enforce its laws to assuage the victims, but rather to protect its citizens.

Specific Deterrence:  This factor applies to the particular defendant, imposing a sentence that serves to deter the specific individual from engaging in further criminal activity.  Simply put, how much time is enough to persuade the defendant that he does not want to commit another crime and go back to prison.

General Deterrence:  This is the Paris Hilton factor.  How severe a punishment is necessary to convey the message to people other than the specific defendant that they don’t want to commit this crime, lest they suffer the same consequences.  This factor varies with the degree to which the public, or the target audience, is aware of the case, as a larger audience will result in a broader message.  On the other hand, consider some of the white collar defendants who are convicted of stealing millions and millions of dollars, and end up with a few years in prison.  Would you give up 5 years of your life for $20 million?  Plenty of people do 5 years for a whole let less.  On the flip side, not many of us have an opportunity to get our hands on $20 million under any circumstances, so the message has its own inherent limitations.

Rehabilitation:  This factor applies more appropriately to those defendants who are driven to crime by an underlying cause that can be ameliorated through the imposition of some sort of services, be they drug and/or alcohol rehab, mental health, medical or educational.  So many people in prison are there for lack of an educational alternative, coupled with the cultural (i.e., drug) influences that permeate certain strata of society.  Before tears well up in your eyes, bear in mind that this factor is often illusory, since these defendants get tossed back out on the street without meaningful support when their sentence is over, putting them right back into the situation that gave rise to their resort to crime as way of life.  While we pay a lot of lip service to rehabilitation, we do a really lousy job of it, even though it is potentially the most meaningful route out of recidivism.

Incapacitation:  Some defendants present a threat to society or particular individuals in society.  These defendants are properly removed from society for the purpose of safety and protection of others.  Along the lines of “your rights stop at the tip of my nose,” there is always an underlying legitimate purpose of protecting others from defendants who are violent.

By arguing sentencing in light of these four legitimate sentencing goals, we are able to arrive at a rational and justifiable period of time to place a person in prison, or impose some lesser sentence as may be appropriate under the given circumstances.  What we remove from the mix is the sentence imposed out of anger and outrage, impervious to rational explanation and wholly subjective in nature.  Sentencing is not a judges’ chance to be the avenging angle, or pander to the collective outrage of the community.  The fact that legislatures have provided for a span of sentencing options does not mean that courts are given a free hand to impose whatever sentence strikes them as “right” or consistent with a judges’ personal sense of “justice”. 

Bear in mind, this is still far from a scientific method of determining sentence, and leaves a great deal of discretion to judges to fashion a sentence.  Sometimes a sentence may still, rationally, fall in one of those strange places like 21 years in order to distinguish between co-defendants, or between one defendant and a sentence recently imposed on another in a well known case, to recognize differences.  It may be used as an incentive or disincentive under particular circumstances.  But at least it will begin to bear some sort of rational connection to the defendant, and case, and the legitimate purposes given the state to put people in prison. 

It’s a start, and it is far better then the blind, thrashing about for something nice to say about a defendant that usually characterized sentencing in state court.