In a very moving post questioning the cost of, and funding for, the criminal justice system in general, and public defenders in particular, Gideon at A Public Defender poses a challenge to those who try to tweak around the edges in an effort to improve matters:

But it’s all a futile exercise. It’s never going to happen unless there’s a fundamental shift in the thinking. That shift may well be driven by the financial engine. So how about taking a different tact. How about we keep detailed statistics: how many people end up going to jail for a violation of probation for drug problems instead of to a treatment facility? Let’s keep a record of that for 3 years and calculate the cost of sending that person to jail. How about defendants sentenced to 7 years in jail where 5 years would have been just as good. Keep a track of the costs there. How many inmates were denied entry into programs for lack of beds and so instead were forced to take a prison sentence? Let’s keep track of that.

Buried in this paragraph is one sentence that has long been particularly disturbing: How about defendants sentenced to 7 years in jail where 5 years would have been just as good. Sentences, the end result of a plea or verdict, have a magical quality in the public’s mind.  It’s as if they are meted out according to some secret magic formula, determined with some measure of exactitude to serve the various purposes that people think sentences should serve. 

People believe that the sentences judges impose are based upon some hard, real evidence, no proof, of what length of time is needed to accomplish their purpose.  For most people, incidentally, that purpose is retribution only, the sole factor that ever seems to be important to anyone. 

Like the value of a lost leg in a personal injury case, the proper length of a sentence is hardly clear.  In many instances, we can anticipate a sentence based upon generalized experience for similarly situated defendants.  Often, this is due to the options available from the Legislature, which become broader or more limited as different theories prevail.  But assuming a relatively broad sentencing range, it’s left to a judge to fix a point within that range.

How does a judge decide that a sentence of 17 years is proper?  Why not round it off at 15?  What not 17 years, 3 months?  What’s special about 17?  And yet, some defendants are sentenced to 17 years. 

As Gideon notes, every day in prison has a cost, both to the defendant, his family, and for those of you who couldn’t care less about the defendant and his family, to the public.  We pay, and pay big, to keep defendant’s locked away.  It’s a cost that many believes makes sense, at least in most instances, but only a fool is happy to overpay.  If we can accomplish all the retribution that makes us feel better about ourselves in 5 years, why sentence him to 7?

The truth is that judges have no magic powers at all when it comes to sentencing.  Most realize it, but also realize that sentencing is part of their job and they try to do their best.  Some try to justify it empirically, as the federal sentencing guidelines pretend to do, but the best they accomplish is consistency.  This removes one aspect of arbitrariness from sentencing, but doesn’t begin to touch the caprice of contending that 7 years is better than 5 years.  Or 9 years, if you want to push on the other end.

There are some sentencing lines that make sense.  We may feel that a particular crime mandates that an individual spend the rest of his life in prison.  Life sentences are pretty clear.  The next dividing line is 25 years, an enormous length of time that is more than sufficient for any crime that doesn’t mandate a life sentence.  After that comes 10 years, an eternity to almost anyone.  This number is often the dividing line between a plea and trial for serious crimes; Defendants simply refuse to take a sentence of more than 10 years and are prepared to roll the dice before going in quietly.  On the lower end of the spectrum, the dividing lines are 5 years, 3 years and 1 year, reflecting the intervals for crimes of varying severity.

The question is how a judge arrives at the conclusion that ten years is too low but 12 years is just right.  The only time this makes sense is when there are co-defendants, whose conduct is distinguishable such that one should serve a longer sentence than another.  If the defendant whose conduct was bad, but not as bad as his co-defendant, gets 10, then it makes some sense that the co-defendant be sentenced to 12 to reflect his more egregious wrong.  But while this may explain intervals between sentenced imposed on co-defendants, it doesn’t explain the basis for the specific sentence imposed.

As Gideon contends, the years have brought us ever-increasing sentences, with ever-increasing costs.  This followed the “tough-on-crime” trend that was borne of a sense of public frustration largely fed by politicians and media who were busily sensationalizing crime and manipulating the public fear to their own advantage.  Sentence inflation, at best, is palliative, making us feel better without actually improving our safety or the system, and without anyone giving thought to the costs incurred.  This doesn’t touch, by the way, the collateral issue of defendant’s leaving prison drug free and capable of gainful employment, another sore spot.

Gideon is right.  It’s time to scrutinize the bizarre and inexplicable sentences imposed, to terms of 17 years or 23 years or 8 years, and ask what conceivable basis could there be that would compel a judge to sentence a defendant to such an odd length of time.  Every year beyond that which is necessary is a cost society, nor a defendant and his family, should not be forced to bear.  We all suffer from these absurd sentences, and their whimsical imposition must be brought under control.