Thursday, December 8, 2011

Why Present Day Sentencing Reminds Me of the Salem Witch Trials

As one of the articles below points out, the goals of sentencing have changed. In the 1800’s, the Anglo-American system of imprisonment was for reform and penitence.

Recent cases cited here clarify that prison is no longer intended for rehabilitation.

SF Gate, San Francisco Chronicle

The only purposes of imprisonment are “retribution, deterrence and incapacitation, not rehabilitation,” said the Ninth U.S. Circuit Court of Appeals in San Francisco, relying on the U.S. Supreme Court’s recent interpretation of a 1984 sentencing law. The ruling, written by one of the court’s most conservative judges, Andrew Kleinfeld, overturned a Hawaii man’s two-year sentence for violating the terms of his release and sent the case back to the trial judge to impose a shorter term.

Los Angeles Times:

Judges may not send criminals to longer terms in federal prison with the aim of rehabilitating them, the Supreme Court ruled.

Efforts by the US Sentencing Commission and various state sentencing commissions have always been aimed at some form of judicial equity whereby two people committing the same crime get the same punishment, all other things being equal.

Unfortunately, that’s not what happens.

One gross injustice is the plea bargain issue where prosecutors offer defendants a small amount of time behind bars. Defendants who decline that offer and opt for a jury trial frequently end up with a much longer sentence than they were offered to plead guilty. This essentially compromises the basic constitutional right to a jury trial, making the penalty far greater if one exercises their right.

Lately, there have been efforts to punish people “more” than they might ordinarily be punished with inflated sentences to set a standard and use as an example.

Such a recent example this week is that of former Governor Rod Blakojevic:

USA Today:

"When it is the governor who goes bad, the fabric of Illinois is torn and disfigured and not easily repaired," U.S. District Judge James Zagel told Blagojevich. "The harm is the erosion of public trust in government."

U.S. Attorney Patrick Fitzgerald said at a news conference that the sentence "sends a strong message that the public has had enough and judges have had enough. This needs to stop."

Fitzgerald said the sentence is the longest ever imposed on an Illinois governor. The prospect of "a significant penalty" should deter other politicians who think they can get away with corruption, he said.

State Rep. Jack Franks, a Democrat who served on the impeachment committee, says he hopes the sentence serves "as a warning to those in public service" that "accountability and integrity" still matter.

US Sentencing Code: 18 U.S.C. § 3553(a) seeks to define the goals of sentencing:

(a) Factors To Be Considered in Imposing a Sentence. - The court

shall impose a sentence sufficient, but not greater than necessary,

to comply with the purposes ….of

(1) the nature and circumstances of the offense and the history

and characteristics of the defendant;

(2) the need for the sentence imposed -

to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the


to afford adequate deterrence to criminal conduct;

to protect the public from further crimes of the

defendant; and

to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established

for -

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the guidelines

To further complicate this, we have the “crime du jour,” the bandwagon of the era where everyone jumps on and says “we should punish this crime more than all the others.”

In the 1980’s and 1990’s, it was crack cocaine. The belief that crack cocaine was so much more dangerous than cocaine powder (though they are the same substance), led to harsh sentencing inequities that are still being remediated today.

What I see in our criminal justice system is emotional response, anger and mob lynching attitudes taking over any reasonableness and fairness in the sentences being given.


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