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November 19, 2011

Class on Tuesday, 11/22: a day for working on problems (with a running start here)

Our final pre-Thanksgiving class will be a day for discussing problems: (a) I can/will respond to any problems anyone has with completing the second short paper, (b) I can/will respond to any problems anyone has figuring out what they are doing for the final paper, and (c) I can/will ask a bunch of hard questions about Problems 5-4 and 6-1 from the casebook (pp. 383-84 and 456-58 in our text).

I am (justifiably) fearful that 75 minutes on Tuesday will not be sufficient to do justice to both Problems 5-4 and 6-1 from the casebook, especially if/when everyone has a belly full of turkey and stuffing from the SBA lunch.  Consequently, I am eager for initial student discussion/debate in the comments here about the issues posed by Problems 5-4 concerning the role/significance in federal sentencing of these eight offender characteristics:

  1. age
  2. education
  3. vocational skills
  4. mental and emotional condition
  5. physical condition, including drug dependence
  6. previous employment record
  7. family ties and responsibilities
  8. community ties

To foster targeted discussion, I would like to hear in the comments views on whether students think one or more of these offender characteristics absolutely should or absolutely should not be considered at sentencing.  

To get the conversation started, I will assert my (devil's advocate?) opinion that EDUCATION absolutely should be considered at sentencing (based in part on this criminal justice report on "Education and Public Safety"), while PHYSICAL CONDITION absolutely should not be considered at sentencing (based in part on my fear that there is a worrisome tendency of persons to judge poorly those who look different).  Does everyone agree?  

For anyone who agrees that education should be considered at sentencing, would you also agree with operationalizing this view by providing sentencing rules/guidelines stating that for each and every degree obtained (high-school, college, graduate school), there should be a presumptive 25% reduction in the imposed prison term?  If you do not like that rule/guideline, how else might be craft rules for considering education (or other offender characteristics) at sentencing?

UPDATE:  I have linked from this post at my main blog to this article reporting on research which suggest that, for American men, "marriage was associated with lower levels of crime and less frequent substance use [and that] following the birth of a first biological child, men's crime trajectories showed slope decreases."   Perhaps this provides support for, say, a 10% sentence reduction for men who get married and another 10% discount following the fathering of a first child."

November 19, 2011 in Class activities, Guideline sentencing systems | Permalink


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Contrary to Prof. Berman’s view, I believe that physical condition, especially drug dependency absolutely SHOULD be considered at sentencing, along with age. However, previous employment record absolutely SHOULD NOT be considered.

Physical Condition:
I understand the fear that people may judge poorly those who look different from themselves, so I would limit the consideration of physical condition only to chemical and alcohol dependency issues. (Purely appearance-based characteristics like race, weight, hair color, etc would be excluded.) Considering chemical and alcohol dependency is crucial in shaping appropriate sentences because requiring treatment as part of the sentence can be far more useful to society than merely incarcerating an addict for acting upon impulses, depending on the circumstances.

I mention age as a factor that should be considered only to the extent that juveniles are already typically separated from adult prosecutions. I do not believe any special treatment should be given to elderly criminals, nor should there be any difference in sentence between a 25 year old and a 50 year old, for example.

Previous Employment Record:
I believe this should absolutely not be considered for the purposes of sentencing because of the fear that white collar and blue collar workers would be treated differently. Money already plays a heavy role on the ability of a Defendant to hire a private defense attorney, and should not further directly or indirectly effect sentencing as well. Additionally, an unemployed Defendant is not “less” of a person or “more” deserving of punishment for committing the same crime an employed Defendant committed.

Posted by: Biru C. | Nov 21, 2011 8:31:45 PM

I have grave concerns about both of your assertions. It seems to me like you are setting up a paradigm where the most morally culpable could be systematically less likely to receive punishment. By this I mean that educated people, more capable of using that education to lead a non-law braking life, would get reductions where the less educated, more likely poor, offenders would get no such benefit despite a strong argument that they had "less choice" in the commission of their crime due to life factors (obviously this does not hold for all crimes, especially things like sexual assaults). I believe I can even make this point from a utilitarian perspective because I would assume the cost of incarcerating a disproportionate number of economically disadvantaged people creates a net drain on the resources that can (and need) to flow to poorer communities in order to stem the tide of an uneducated population.

Posted by: Kevin S | Nov 21, 2011 8:40:59 PM

With respect to Education, I basically agree with Kevin. Those with more education generally should know better than to break the law and they should also have a greater ability to succeed in life, reducing the need/desire to resort to illegal activities. The 25% reduction proposed by Professor Berman is appalling. If I get a HS degree, a Bachelor's degree, a Master's Degree, and a Doctorate, it then appears that I would be above the law (4x25% = 100%). I might approve a system where someone w/o a HS degree is viewed as having a greater chance of offending again, but everyone else would be treated the same.

With respect to Physical Condition, consider this: juveniles under the age of 18 are generally encouraged to participate in sports because that gives them something to focus on and often keeps them from spending more time around bad influences. Why shouldn't this rationale apply to adults? An adult who stays active and physically fit could (should) be viewed as more disciplined and therefore less likely to re-offend. I think physical condition (drug issues aside) should be considered, even if it is only a minor factor.

Posted by: Bradley Newsad | Nov 21, 2011 11:36:47 PM

I believe that all of these factors should be considered at sentencing. I agree with the principle stated in Williams that “the punishment should fit the offender and not merely the crime.”

However, there are two limiting conditions to these factors carrying significant weight: (1) criminal history and (2) the crime committed. First, these factors should carry more weight when sentencing a first time offender as opposed to a defendant being sentenced for the fifth time. Secondly, the offense convicted of does matter, a misdemeanor or non-violent felony, as opposed to rape or murder, should allow for greater consideration of offender specific factors.

I am more concerned with the justice system being able to weed out the offenders who made a stupid choice from the predators who need to be locked up. A one size fits all approach may help reduce disparity, but it also eliminates necessary discretion.

Justice is supposed to be blind, but it should not be devoid of common sense.

Posted by: Patrick M. | Nov 22, 2011 9:24:11 AM

Age and Mental/Emotional Condition should definitely be considered at sentencing.
- (1) Age is an easily identifiable standard to determine if a person is mature enough to understand the consequences of engaging in certain activity. Therefore, it is necessary to distinguish sentences for minors versus adults. I obviously believe that adults should be punished more harshly as a result. However, I disagree with Biru about not considering the age of elderly in sentencing. I think that if the imprisonment term would serve as no deterrence due to the elderly age of the individual, then age should be considered and imposing a fine or another alternative might be a more suitable form of punishment.
- (2) Mental and emotional condition can affect mens rea. Both can be abnormalities which reduce the moral culpability of an offender. However, the standard of proof should be high to claim either condition. Depending on the condition, some offenders may have the inability to make reasonable judgments, understand the wrongfulness of his actions, or even to control his or her faculties and emotions. Therefore, they must be considered.

Physical condition may be used, but not in the manner that Bradley suggested.
- I absolutely agree that drug dependence should be a factor. Aside from that, I think that physical condition referring to one's health should be considered in sentencing. I do not believe this to mean the way someone appears. The basis of using physical condition referring to health is the same basis I used for considering the age of the elderly.

Education and previous employment record should definitely not be considered at sentencing.
- Education should have no bearing on sentencing. Proposing a reduction in sentencing for the more educated would merely be a tool to create disparate socio-economic results in sentencing. It is an illegitimate factor, because knowledge or lack of knowledge of the law is no excuse for breaking the law. (In addition, playing the devil's advocate, I would intuitively think that educated people would have a better grasp of laws and should be held to a higher standard IF this was a legitimate consideration in sentencing. However, I oppose the use of education altogether.)
- Previous employment should also have no bearing on sentencing. As with education, it does not make someone more or less morally culpable. There is no link between unemployment and fault, which I fear using this guideline would try and do.

Posted by: Crystal M | Nov 22, 2011 11:34:28 AM

I agree that if a court was required to consider education, it should be the inverse of what Professor Berman suggested: the more education you have, the greater your punishment should be. However, the problem with actually implementing such a rule is that there is virtually no way of knowing if the level of education had any impact on the defendant's decision or ability to commit the crime. It may be pure correlation rather than causation. This is in contrast to something like mental condition or drug dependence which are both likely to be a direct causal factor. For example, a defendant may have graduated law school, and based on his education, know full well the consequences and immorality of his actions. But if he becomes an alcoholic after his first year at a big New York law firm, is his level of education still relevant? Or is it his alcoholism that most likely drove him to commit a crime, and he just happens to also have a law degree.

Posted by: Ranya | Nov 22, 2011 11:35:07 AM

I think that it's too difficult to say what should and should not be a factor. There is no one factor that influences each and every criminal. When we contemplate taking away someone's life and/or liberty, a highly specialized approach should be utilized. I think that we are, at times, too focused on efficiency and not focused on the person. Trying to develop some equation of the most guilty criminal (whether putting weight on physical condition, age, education) will inherently be flawed because there is no one equation that can lead to an equitable and just sentence. Though I agree a very holistic approach to sentencing would take significant resources and time, we already expend valuable time and resources on useless punishment (regardless of your approach to the justifications of punishment).

I think PSIs are a good start but there needs to be an even more critical examination of the person who committed the crime.

Posted by: Adrienne C. | Nov 22, 2011 11:47:43 AM

When I first read this post, I made the assumption that Professor Berman was suggesting we decrease sentences for people with LESS education, not with MORE education. I was surprised once I went back and realized that he was suggesting the opposite. My thoughts were similar to those of Kevin and Bradley.

Ultimately, I think education, vocational skills, previous employment record, and community ties should not have any relevance in sentencing. Whether the goal of sentencing is retribution, deterrence, rehabilitation, or incapacitation, I do not see how considering these facts would help further these goals.

As someone who has not given up completely on rehabilitation, especially when it comes to individuals suffering from mental diseases and drug addictions, I believe mental and emotional condition, as well ad drug dependence, should play a role in the nature or place of service of a sentence.
For similar reasons I believe family ties should play a role in place of service.
Lastly, I think age is very important in determining the sentencing nature and extent when sentencing youth and young adults.

Posted by: Sally S. | Nov 22, 2011 11:52:32 AM

From the perspective of trying to minimize sentencing disparity, education seems like a poor metric for determining sentencing severity. Obviously, sentencing disparities generally disfavor poor racial minorities and other politically disenfranchised groups- considering this (taking Michelle Alexander’s point in The New Jim Crow), education as a sentencing seems like a tool of the politically empowered to maintain the status quo- keep the wealthy, white from serving equivalent sentences to the politically less powerful poor, racial minorities.

Using education against the those social classes without it seems like what Law and Economics types call a ‘double-bind’ problem- using an socio-economic disadvantage which creates incentive to commit crimes as a means of imposing harsher punishments on that already disadvantaged group. If we agree that there is inequality in our sentencing system, then why would we choose a sentencing criterion which will only exacerbate that inequality (and further, which is a logical outgrowth of that inequality, i.e. being poor makes one less likely to have an education).

I think a better idea is to use a criterion like age to impose harsher (or less harsh) punishments. Age achieves a similar result as education- older people should know better and are therefore more culpable, or, older people are less likely to recidivate, and thus should be sentenced less harshly. But, unlike education, age is a largely blind in terms of race and class.

Posted by: Will Herbert | Nov 22, 2011 12:22:32 PM

Prof Berman's updated comment is also troubling to me. I do not see the logic in reducing the sentences of people who contain characteristics that should make them LESS likely to commit a crime. If, statistically speaking, they are less likely to commit a crime my intuition is to punish them more because they have not internalized those factors that should decrease their criminal tendencies. It makes no sense to me to automatically decrease a sentence because you are MORE likely to commit a crime then those people with which you share a certain characteristic.

Posted by: Kevin S | Nov 22, 2011 12:34:16 PM

I think that education is a factor that should be taken into consideration. I think that when it comes to detterance and rehabilitation, people who have a higher level of education will probably be more likely to become productive members of society after serving their sentences (this is my own intuition, I don't have any statistics to back this up). I realize that this will create disparity between the sentences of educated vs. uneducated people, but my goal is ultimately to stop crime from happening, and this is an effective guage to do that, then the disparity is warranted.

I will put two caveats on this. First, I don't think that this should be operationalized in the way that Professor Berman has proposed because I think that 25% is too large (as Bradley said, you could eventually become about the law). I think a presumptive percentage might be ok, but probably somewhere in the 5-10% range. Second, I think that all of the items listed in problem 5-4 should be considered when it comes to sentencing. As I said, my ultimate goal is to stop crime, and any indicia that someone is either more likely or less likely to commit a crime after they have served his or her sentence should be taken into account. The problem I run into is about how to fit all of these into a guideline scheme without just leaving it up to the individual judge.

Posted by: Sean B. | Nov 22, 2011 1:12:36 PM

Like a lot of other people who've commented, I'm concerned by the potential for disparity, but not for reasons of what would actually happen if we gave education reductions in sentencing. I'm more worried about the perception of the criminal justice system as illegitimate. Using education as a criteria may be effective from the standpoint of analysis of recidivism, but (and this is a blatant assumption) I think that most people, especially the less-educated ones, would perceive the system to be extremely slanted.

In regard to the argument that educated people should be punished more because they should know better, I think it's an untenable position. You can't hold them to a higher standard of knowing the law, when we expect everyone to know the law at least enough to not commit crime. Ignorance of the law is (usually) no defense, and knowing the law (usually) does not make you more culpable.

Finally, I'd like to pose an empirical question: aren't we already doing this on a de facto basis? Education correlates to recidivism and incarceration rates, and I'd bet that is also correlates to sentence length even if you control for factors like crimes committed. Whether we want to legitimize that disparity is another question, but I think its fair to point out that this probably isn't creating a world a lot different from the one we already live in.

Posted by: Colin P | Nov 22, 2011 1:14:39 PM

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