14 October 2020

Criminal Sentencing Law Design Flaws


In the U.S. criminal justice system, when someone is convicted of a crime they are then sentenced pursuant to that conviction to some punishment that has been authorized by a statute.

Outside of death penalty cases, military justice convictions, and a handful of states like Texas that have jury sentencing, the sentencing decision is made by a judge.

If the sentence exceeds the sentence authorized by statute, and was not consented to in some manner by the defendant being sentenced, it can be appealed, or if not timely appealed, possibly subjected to a collateral attack in a post-trial motion or habeas corpus petition.

While some sentences authorized by statute are unconstitutional as a matter of law, the U.S. Supreme Court and other courts interpreting the U.S. Constitution and often parallel provisions in state constitutions, over the years, have afforded legislatures immense discretion in adopting, ex ante, generally applicable statutes establishing sentences for crimes. So, most "design problems" with sentencing statutes that lead to inappropriate sentences for crimes, do not have a ready constitutional law solution.

This means that the most expedient way to solve problems in sentencing law is with statutory amendments to sentencing laws.

This post briefly reviews some of the most serious common design flaws and suggests solutions. I group the design flaws into two general categories: non-discretionary and discretion related problems.

Non-Discretionary Sentencing Design Flaws

There are several ways that sentencing statutes frequently produce unjust results that do not involve a judge (or other sentencing body) misapplying its discretion.

Non-discretionary provisions of sentencing laws usually produce unjust sentences one of several ways.

* Unfair Mandatory Minimum Sentences

The problem of unfair mandatory minimum sentences comes up most commonly for federal crimes where a statute sets a minimum sentence for an offense that is much higher than a judge with more discretion or other jurisdictions set for the same offense, and higher than the overall scheme of sentences in the system suggest is fair.

For example, the federal controlled substances act set a mandatory minimum sentence for possession of small amounts of drugs (often $10 worth) and possession of large amounts of drugs by someone with little culpability (e.g. a "drug mule") that were very high, such as five or ten years in federal prison.

Frequently, an issue is that a crime is defined too broadly and while the mandatory minimum sentence may be appropriate for some conduct that violates the statute, the crime also includes conduct that merits only a less serious punishment. When this happens, the less serious cases that are excessively punished with a mandatory minimum are prosecuted disproportionately in order to secure guilty pleas in exchange for more appropriate although often still high, sentences. 

The statutory solutions are to (1) repeal the mandatory minimum sentence, (2) reduce the mandatory minimum sentence to a more reasonable mandatory minimum sentence, or (3) create a safety valve provision that is broad enough to allow the mandatory minimum sentence to be ignored in cases where the sentence required by law is problematic.

Most criminal offenses have sentences statutorily assigned to them by legislatures, however, are not grossly outrageous in the case of an of a recidivist offender who is convicted of one count of committing a single crime. The problems usually arise instead with either consecutive sentences or recidivist sentencing.

A maximum sentence that is too low creates similar problems that are easily solved by increasing the maximum sentence, at least in circumstances that are aggravated.

* Consecutive Sentences

Legislatures rarely give any serious thought to whether imposing multiple sentences for different counts of the same crime or multiple distinct crimes is collectively appropriate. Often it is not.

Individually, a minor felony may be punishable by up to three years in prison. But it is rarely the case that it is actually just to imprison someone who commits that crime ten times and is convicted of all counts to be sentenced to thirty year in prison.

In general, when someone is convicted of multiple crimes concurrent sentencing is closer to the appropriate sentence. But it is understandable and fair that there should be some enhancement of a sentence for someone who commits more crimes that aren't lesser included offenses of each other, or for someone who commits multiple counts of the same crime - perhaps in the same criminal episode and perhaps not.

A rough justice solution which would be much better than the status quo, would be to require all sentences arising from the same episode of criminal conduct to be served concurrently and for any additional marginal sentence in excess of the longest one imposed for crimes committed in different criminal episodes to not increase the total sentence by more than some multiple or function of the longest sentence, perhaps a multiple of three in the worst case scenario.

One somewhat less rough method would be to first determine the longest sentence imposed for each criminal episode. The longest sentence would be the starting point. A second criminal episode with the second longest sentence could add one half of that additional sentence. A third criminal episode with the third longest sentence could add to the first two sentences, one third of the sentence for the third criminal episode, and so on.

For example, suppose someone committed manslaughter for which a ten year sentence is imposed, car theft, for which a three year sentence is imposed, and extortion, for which an eight year sentence is imposed, in three independent criminal episodes. Under the proposed formula, one would start with a base sentence of ten years. This would be increased to fourteen years (half of the eight year extortion sentence) for the next most serious offense. And, it would be increased from there by one year to fifteen years for the third most serious offense (a third of the three year car theft sentence).

The total sentence would be fifteen years, instead of the twenty-one years that would be imposed typically today, if consecutive sentencing was imposed. Each offense increases the total sentence. The sentence is higher than it would be if just one offense was committed. But it doesn't get endlessly high.

Suppose instead that someone committed ten car thefts punishable by three years in prison in separate criminal episodes. The sentence would be 3 years plus 1.5 years plus 1 year plus 3/4 years plus 3/5 years plus 1/2 year plus 3./7th years plus 3/8th years plus 1/3 year plus 1/10th of a year. This would be a total of 8 years and about 7 months, as opposed to 30 years if the sentences were served consecutively.

Recidivist Sentences. 

It makes sentence to commit repeat offenders to longer prison sentences than first time offenders. They are more likely to commit crimes again if they are released and crime can be reduced with equal amounts of criminal justice resources if these people are in prison longer and others who are less likely to reoffender serve shorter sentences that aim to punish but not necessarily to prevent reoffending to the same degree.

There are several ways that recidivist sentencing is handled. One is to treat an offense committed by a recidivist as a more severe crime than one committed by a first time offender as if it is a separate crime. One is to have a threshold like "three strikes and you're out" after which one has to serve a life sentence or a long term of years sentence, if the number of qualifying offenses are committed. One is to impose a sentence enhancement such as a multiple of the underlying offense sentence, upon repeat offenders, sometimes adjusted based upon how many prior offenses there are of a particular type. One is to require that repeat offenders be sentenced at the middle to high end of the range of discretion for ordinary offenders convicted of the same crime and should not be eligible for "safety valves" or sentences at the low end of the permissible range for a first time offender committing the same offense.

There are several ways that this can go wrong. The worst situations (which have been mostly upheld as constitutional under 8th Amendment challenge) is to elevate minor misdemeanors to felonies for recidivists, to treat the enhanced offense level as felony counts on a three strikes type situation, and to include all prior adult convictions no matter how stale. This is the kind of approach that leads to travesties of justice like life sentences for shoplifting.

One first step is to ignore stale convictions and/or to reduce the impact for repeat offender sentencing for moderately old convictions. Convictions more than ten years old do not increase the risk of a new offense relative to the general population, and older offenses that are not ten years old involve less risk.

Another is to insist that there be some proportionality between the actual crime of conviction and that sentence. A double or treble sentence should be the maximum enhancement all other things considered. Limiting low sentences such as probation and fines rather than prison, or minimal sentences within the permissible range for defendants with long rap sheets is also generally preferable to draconian long sentences.

A third is to insist that enhancement for serious crimes only be imposed when the repeat offender has previously committed other similar and equally serious crimes. Car theft felony convictions should not enhance sentences armed robbery or aggravated assault or rape vey much.s

Another problematic feature of recidivist sentencing is that committing crimes is typically a developmental phase. Adolescents and young adults are most prone to commit crimes, while the likelihood of repeat offenses declines sometime in a person's thirties or so and continues to fall with age. Yet recidivist sentencing laws disproportionately impact offenders at the end of their criminal careers who commit one last offense or two before aging out and become a much less crime prone older person. Ignoring stale convictions can help address this issue, but it points to the need to limit repeat offense sentencing excesses.

Sentencing Discretion Design Flaws

Basically there are two kinds of sentencing problems that can occur from abuses of discretion by a judge within a statutorily permitted range. A judge (or other sentencing body) can impose a sentence that is too low for the gravity of the crime committed, or can impose a sentence that is too high.

There are also different causes of abuses of discretion.

In the usual case where an individual judge sets the sentence, the sentence can be a result of the judge's idiosyncratic biases or inclinations.

Another common issue is that a judge considers inappropriate factors when imposing a sentence. These factors can be particular to a case (like considering acquitted conduct) or can be systemic (like consider race).

Another common issue is that a crime is defined too broadly, so that it includes both more serious and less serious offenses in a single broad sentencing range.

* Establishing Reasonable Mandatory Minimum Sentences

Some serious offenses, e.g. forcible rape or child rape or domestic violence, are a travesty to punish with only a minimal sentence and many offenses have no minimum sentence. Establishing a reasonable minimum sentence that matches the least serious conduct covered by an offense can address this issue. 

Breaking up offenses so that less serious conduct does not have a minimum sentence, but aggravated conduct does have a minimum sentence, can also address this issue.

* Expressly Disallow Inappropriate Factors

Some factors are legally permitted but troubling. Sentencing based upon alleged other acts evidence beyond the offense of conviction, such as acquitted conduct or uncharged conduct, removes the rightful place of the jury to decide what a person is convicted of having done for which they are being sentenced. Only the crime of conviction and relevant offender characteristics should be considered, and recidivist sentencing should be based only on actual prior convictions and not mere alleged prior conduct.

* Reducing Maximum Sentences

Sometimes the legally authorized sentence far exceeds the sentence that is ever imposed in the ordinary course. This is particularly common in the case of municipal ordinance violations and misdemeanor offenses.

Typically, a violation of a municipal ordinance might generically be punishable by up to a year in prison and/or a $1,000 fine, even though only a very rare handful of kinds of violations are ever punished by more than a fine and/or a month in jail. Reducing the statutorily authorized punishment except for the most serious delineated offenses for which more severe punishments are available reduces the risk of an abuse of discretion by a lower court judge that is completely immune to review on appeal despite being clearly unfair and biased.

Circumstances that justify more severe sentences should be broken out, but studying existing sentencing norms should be used to reduce maximum sentences.

* Publicly Evaluate Judges For Bias In A Systemic Manner

Judges in criminal jurisdiction courts impose lots of sentences which creates lots of data. This should be systemically monitored and evaluated, and systemic exercises of discretion out of line with other similarly situated judges should have consequences such as removal from office or informing the public of the fact in judicial retention elections.

* Panel Decision Making For Serious Offenses

Ultimately, sentencing design can't solve every injustice. Creating a solution to individual cases where a judge might impose a one year sentence when a ten day sentence is the norm may be impractical and the harm caused by these abuses, while real, is not the worst of all injustices.

But for serious offenses, it is problematic when a judge can impose a sentence of five years or three decades, for example, a range of twenty-five years of a defendant's life, on what amounts to a whim.

In cases where a judge has significant discretion to impose a sentence which is potentially severe, perhaps, for example, when there is at least a ten year discretion range, sentencing decisions should be made by panels of three or more judges, rather than a single judge, reducing the risk that any one judge's individual biases with unjustly influence the result.

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