My friend L., a magistrate in Britain, is appalled by American-style sentencing, which has taken hold there recently. “So you have this young man who’s been in and out of minor trouble before–public drunk, throwing rocks–but he’s grown up a lot in the last few years, has a wife and a baby and a job. But he falls off the wagon, gets drunk, hassles a neighbor. He needs alcohol counseling. He needs it to keep his job and feed the baby. He needs it, his family needs it, society would be better off, clearly. But I can’t order counseling. The guidelines say we’re to imprison him for six months. What nonsense is that?”
L. was referring not just to the kind of determinate sentencing guidelines that have helped swell our own prison ranks to the most populous in the world. He was also concerned about the particular variation that exists in Virginia and whose ethical ramifications were recently the subject of a New York Times Magazine article titled “Sentencing by the Numbers.” Punishment is premised on probable propensity for crime, which in turn is figured by taking into account age, gender and socioeconomic class–a sentence more severe if you’re young and male, less so if you’re an old lady. Criminal sentencing, in other words, begins to resemble the kinds of actuarial tables used by insurance companies.
Trials are always governed by some measure of probability–burdens of proof are all but labeled as such, i.e., preponderance of the evidence, clear and convincing, beyond a reasonable doubt. But the guidelines to which my friend was referring are much broader: Penalties are doled out according to a fixed scale assigning outcomes based on sociological and psychological predictions that this one is a bad egg, that one relatively harmless. This trend toward limiting discretion in sentencing is designed, ostensibly, to root out the softies in the ranks of the judiciary, but whatever the imagined merits of that, it is troubling.
First, it resembles a form of prior restraint, which is illegal. Second, this removes an essential component of what makes the law just. A judge’s discretion to sentence within a given range of maximum and minimum sentences is where mercy resides. Yes, we could punish all bad acts exactly in the same manner, no matter what the circumstances, but that would make justice not just blind but a little stupid as well. We have historically trusted judges enough to allow them to consider mitigating circumstances for even the admittedly bad actor. But it is a matter of trust, and we do seem to have become a society in which trust is in rather short supply. Third, this sort of econometric reasoning literally imprisons individuals in status stereotypes. I am curious, too, about why so many reject the use of sociological or other group data for inclusive purposes like affirmative-action plans that enhance economic or racial mobility, yet seem unfazed by requiring it in criminal law, where the exercise of state force ought always to be most particularly scrutinized, narrow and cautious.
There seem to be whole bevies of bushy-tailed number crunchers in high places these days, most of them economists– people so obsessed with the elegance of their models that they sometimes forget morality and norms, to say nothing of common sense. Seventh Circuit Judge Richard Posner is always my favorite example of an intelligent man blinded by the theories in which he wraps the purity of his assumptions. In his curious book Sex and Reason, he states confidently, “Contrary to a view held by many feminists, rape appears to be primarily a substitute for consensual sexual intercourse, rather than a manifestation of male hostility to women.” He goes on to fret that “feminists are unlikely to value virginity or chastity, but they see rape as a threat to their control over reproductive capacity.” On and on, this random, bantering assignment of “value” and desire, this confusion of what’s natural and what’s the norm.
Place this next to George W. Bush’s recent statement that since African-Americans die at a younger age, on average, than whites, they should hail the dismantling of Social Security as somehow beneficial because they don’t live long enough to reap precisely the same benefit as the composite white person. (Meaning? Grab the money and run? Gather ye rosebuds while ye may? Or don’t expect this Administration to come up with measures that might actually extend your life expectancy?)
The President’s reasoning echoed the reasoning in an earlier “provocation” so often associated with Lawrence Summers, the notorious memo leaked to The Economist more than a decade ago. This memo, which reportedly was written by an assistant while he was at the World Bank but which went out under Summers’s name, is guilty of exactly the same careless confusion that is evident in his more recent assertions that desire and innate ability rank higher than social factors in predicting why more Catholics don’t pursue banking, why more Jews aren’t farmers and why women are underrepresented in Harvard’s science and math departments. Back in 1991 he hypothesized that “a given amount of health-impairing pollution should be done in the country with the lowest wages…. I’ve always thought that under-populated countries in Africa are vastly under-polluted. Their air is probably vastly inefficiently low compared to Los Angeles or Mexico City. Only the lamentable facts that so much pollution is generated by non-tradable industries…and that the unit transport costs of solid waste are so high prevent world-welfare-enhancing trade in air pollution and waste…. The concern over an agent that causes a one-in-a-million change in the odds of prostate cancer is obviously going to be much higher in a country where people survive to get prostate cancer than in a country where under-5 mortality is 200 per thousand….”
This is the kind of thinking that has informed our decision to pull out of the Kyoto accord. It is the thinking that justifies destroying the safety nets that protect our retirement and disability funds against the vagaries of an increasingly unbalanced economy. It disguises prejudice as preference, poverty as choice. It is the kind of thinking that reduces human beings to numbers, and elevates efficiency at whatever human cost as the greater good.