Former defense lawyer turned prosecutor Ken Lammers, of  CrimLaw fame, has proven yet again his vast computer skills by the creation of a colorful graphic designed to make the point that Sherry Colb’s post on the “holier than thou” effect, raised by the New York Times, is misdirected.  In its place, Ken offers the “there but for the grace of God” process.  Since everybody else was giving their thoughts cool names, I’ve decided to do it too.

Ken describes Colb’s views on the “holier than thou” effect:

Basically, it is the inability of people see themselves as a person who would fail in situations where they were tempted – through chance, fate, or desperation – to break the societal compact as embodied in the law.

Ms. Colb goes further identifying 4 purposes to criminal law: retribution, deterrence, incapacitating offenders, and rehabilitation. She identifies retribution as the primary focus of the American system based upon the lack of rehabilitation programs in prisons in combination with rapes and gangs. Then she concludes that locking someone away in this situation, away from law-abiding citizens is a bad thing, so that shorter sentences are most likely preferable.

The initial description, that people fail to see themselves as criminals, seems merely a variation on Hart’s moral condemnation theory, explaining the existence of criminal law to address those whom society feels are bad people and in deserving of punishment.  The problem with this definition, of course, is that our criminal laws extend well beyond acts that most people, if independently asked, would believe to reflect a moral failing.  Some of our malum prohibitum laws are a real stretch from evil-doing, but people still chose to believe that only those deserving of moral condemnation end up in prison. 

As for Colb’s “identifying 4 purposes,” these have long been recognized as the bases for the imposition of sentence, both statutorily, by caselaw as well as theory, and are the universally accepted and acknowledged legitimate rationales for the imposition of sentence.  Not sure if Ken really takes issue with them, but by attributing them to Colb as if the invented them, he suggests that there’s something controversial about them.  If so, I haven’t a clue what the problem might be.

And finally, Ken gets to the heart of his problem, that Colb concludes that retribution results in sentences that are counterproductive to the other purposes of sentencing and is societally detrimental.  Here’s where Ken’s graphic comes into play.

Ken explains:

While Ken’s chart is crafted from his personal experience, I really have little issue with the curve.  It’s the same as my experience, without any overly slavish reliance on the specific numbers.  It captures the point. 

Why is there such a severe downslope? Because the greatest number of offenses are treated with mercy. People just don’t get thrown in jail for reckless driving, DUI, writing a bad check, or most misdemeanors the first time they are convicted (without aggravating circumstances). There’s a good chance they won’t go to jail for a second or even third misdemeanor conviction, particularly if they are different types (driving suspended, bad check, assault and battery). Furthermore, there’s a whole slew of felonies wherein the first conviction will only get an offender probation.

Next come the convictions which should lead to incarceration, but do not because they are somehow diverted. Sometimes this is just having a case continued to be dismissed if there are no problems for a year. In other cases there are drug courts, shoplifting classes, anger management programs, and/or community service given in lieu of incarceration.

I think Ken may be ignoring some salient aspects in his equation.  First, that there are invariably going to be a far greater number of petty offenses than what we consider to be the more serious ones deserving of moral condemnation, such as murder, rape and robbery.  I doubt that anyone, regardless of what chair one is seated in, believes that there should be only one penalty for all offenses, regardless of seriousness.  Thus, the fact that there are a far greater number of offenders receiving lesser punishments doesn’t reflect society’s “there but for the grace of God go I” attitude, but merely a proportionate scale of moral culpability.  A jaywalker simply doesn’t deserve the death penalty under any theory of punishment.

Second, Ken’s approach assumes that every criminal offense inherently reflects a societal determination that the conduct itself is evil, as if there was no distinction between malum prohibitum and malum in se.  This ignores the fact that our legislative bodies have disconnected the concept of moral wrong from the criminal law, enacting laws that criminalize conduct that carry no inherent moral fault.  The condemnation stems from the mere fact that it is a criminal offense to do, or not do, a particular act because a legislature has so decided, not because the act itself is inherently wrong. 

There’s no reason why we drive on the right side of the road rather than the left per se, and it only constitutes recklessness because a choice was made to keep us to the right so that we don’t crash into each other if every person was left to his own personal choice.  The problem is exacerbated 10,000 fold when we consider the plethora of technical regulatory violations that are designed to keep us to the right even though, in and of themselves, they are merely choices to smooth out the societal compact.

Rather, I think Ken’s issue with Sherry Colb is the “Goldilocks Syndrome” (see, I told you I had a cute name for my own theory).  Ken’s take is colored by where he now sits, at the table closest to the jury.  Where I see jailing or imprisonment used too frequently in the name of retribution, Ken sees it as under-utilized.  Too much, too little, just right.  It’s different for each of us.

The reason for our difference seems quite plain.  Retribution, unlike the other sentencing considerations, is a purely subjective measure.  How much suffering should be imposed for certain criminal conduct?  Should jaywalkers get the death penalty?  Should murderers get life in prison?  The spectrum ranges from a stern talking-to all the way to the executioner’s chamber.  Where along that spectrum should a particular act fall in order to satisfy the lust to impose some degree of suffering on the wrongdoer?

This isn’t a fair subject for argument.  We each see the degree of appropriate restitution differently, and certainly those of us disconnected from the specific offense see it differently from those who suffered as the victim of the offense.  Most of the time, victims feel that the perpetrator of their suffering have gotten away “too easy,” meaning they haven’t suffered nearly enough for the suffering they’ve imposed.  This is why sentences are supposed to be imposed by a detached person, whose vision isn’t colored by the pain of the victims, and why the “victims rights” movement is misguided.  On the other hand, what basis would a detached sentencer use to determine the appropriate degree of retribution to be imposed?  It’s retribution.  It’s supposed to cause suffering.

Which brings us back to Sherry Colb’s point.  If our purpose in imposing suffering on criminals is retribution, then the question of whether a sentence is too harsh, too lenient or just right is wholly personal and arbitrary.  There is simply no right or wrong answer as we each weigh the degree of moral condemnation differently.  But if the purpose of sentencing is to reduce crime and take wrongdoers and convert them into productive, law-abiding citizens, then retribution is counterproductive to the goal.

For those who think that we are too soft on crime because we say, “there but for the grace of God go I,” I wonder what amount of suffering would satisfy your visceral desire.  How do you propose that society arrive at the “right” amount of suffering?  What cost, in terms of turning out productive, law-abiding citizens, are you prepared to accept to indulge in the imposition of suffering for its own sake?

Most people would insist that some degree of retribution is needed as part of a criminal sentence, provided of course they don’t look too closely at some of the stuff they call criminal these days, but few consider why retribution seems to quiet our soul.  Since it comes at a relatively steep price, we really need to consider the trade-off between our moral outrage and what we expect to get out of prison at the end of the sentence.  We pay for it either way.