The Dangerous Math Used To Punish Criminals

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Documentaries, television and movies are obsessed with crime. Is the accused actually guilty? If not, who is? If so, will they get away with it? All these questions matter -- but the most important question might be what happens when a criminal is sentenced.

Determining a fair and just sentence for an offender is a delicate balance of punishment, rehabilitation and protection. From Aristotle to restorative justice initiatives, we’ve spent thousands of years developing theories of sentencing and striving for better ways to implement them. But no matter how refined our concept of justice becomes, it’s also subject to overt biases and both conscious and unconscious discrimination based on any number of factors, from age and race to completely unrelated societal forces. Does that mean real justice is impossible? And can we combat the failings of the human mind by replacing people with mandated algorithms?

The answer is yes -- and no. When Marvin Frankel conceived of a justice system that would remove bias and variations in sentencing from United States federal sentencing, he was convinced that he’d ushered in a new, fairer regime of sentencing. In a way, he had… when Congress passed the Sentencing Reform Act of 1984, criminal sentencing became significantly more consistent. But it also opened the door to even more sinister discrimination with mandatory minimums and disparate impacts on minorities -- precisely some of the problems the sentencing reform was meant to address. It also rendered useless the professional experience of judges and ran complex crimes, and their victims, through a dispassionate algorithm that failed to tailor results to specific circumstances.

Justice is hard, and we continue to figure out how to do it right. Maybe it can be based on numbers. Maybe it should be based on feelings. And maybe it’s just impossible to achieve perfect justice.

*** ADDITIONAL READING ***

Marvin Frankel, “Criminal Sentences: Law Without Order”: https://www.amazon.com/Criminal-Sentences-Law-Without-Order/dp/0809013746

Chapman v. United States, Supreme Court transcript: https://www.supremecourt.gov/pdfs/transcripts/1990/90-5744_03-26-1991.pdf

New York Times review of Frankel’s “Law Without Order,” 1973: https://timesmachine.nytimes.com/timesmachine/1973/05/13/90954511.html?pageNumber=342

“Measuring Interjudge Sentencing Disparity: Before and After the Federal Sentencing Guidelines,” The Journal of Law & Economics, 1999: https://www.jstor.org/stable/10.1086/467426

The Sentencing Project: https://www.sentencingproject.org/

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Hosted and Produced by Kevin Lieber
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Research and Writing by Matthew Tabor
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Editing by John Swan
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Huge Thanks To Paula Lieber
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