Imaginarily Sufficient But Not Greater

It’s always struck me as silly that we as a society have decided that justice is somehow best measured by time in confinement. Speaking with an experienced former prosecutor who spent time in a foreign country helping to set up a “modern” criminal justice system, I was amused when he said they were backwards with punishment and human rights.

When someone did wrong, he explained, the punishment might be giving the victim his finest goat. A convicted criminal might even be forced to give the victim his firstborn boy as a slave or his firstborn daughter as a bride for a serious offense. I could only think about how, here in Arizona, we’d just stick the dad in a cage and all but guarantee the son eventually becomes a slave anyway, usually the state-owned kind just like good ol’ pop. The daughter in many instances isn’t much better off.

In those faraway backwards lands, it seems things that provide some benefit to a victim, ideally something approximating the victim’s loss, are the logical punishments. Restitution in lieu of retribution. It makes me wonder who’s sophisticated and who isn’t. It’s not like we don’t do bad things to innocent people. The old chestnuts I still hear daily from prosecutors to defendants about how a defendant “should’ve thought about his children before he did the crime” would seamlessly fit into such a system. I can just imagine the backwards, developing-country prosecutors exclaiming “now look what you’ve made us do!” and “you should’ve thought about what would happen to them when you did the crime!” It would feel just like home, except that CCA, not the victims, gets the benefit here.

Admittedly, confining a human for months or years has the benefit of appearing very fair across the board. Time is the same to everyone, right? A fine for a rich man might not adequately reflect the seriousness of his crime because he can pay it with ease. Warehousing humans has the appearance of mistreating them all equally. The idea that confining people in cages where they’re likely to get beaten, raped, and trained to be better criminals is somehow the only way to achieve “justice,” a generally unclear thing but undoubtedly not the same as making it as right as possible with the victim, is as ingrained in the minds of most people in this country as the idea that a two party system keeps them safe from a crazy minority party being elected and governing them. Like it or not, detention is our currency for punishment.

Also, like it or not, it necessarily follows that people who are authorized to hand out justice almost universally believe that justice means in most cases a very specific period of time in a cage. They think there’s a correct sentence in custody for everything; just as every product has a price in dollars, every crime has a price in prison time. In the federal system, a provision about how federal judges “shall impose a sentence sufficient, but not greater than necessary” to comply with the purposes of punishment has already long-irritated one federal judge who currently has a blog where he discusses this sort of thing. It’s also come up over at Simple Justice, where the same judge commented. I’m glad I’m not the only one who sees a problem with the idea of fashioning a just-right Goldilocks sentence.

In a recent federal case of mine, an enhancement for a prior felony was going to mean a sentence of a number of years for my client. The presentence report recommended the minimum under the guidelines, which was presumably not greater than necessary, rather than any sort of departure or variance. After I obtained more information about the prior and did some research, I filed an objection to the enhancement. The prosecutor agreed with me, and the probation officer changed her report. The new recommended sentence, presumably also sufficient but not greater than necessary, was only a few months and at the bottom of the new range. The judge sentenced my client to that minimum, but I have no doubt she would have given my client the several-times-greater sentence at the bottom of the much greater range had the enhancement actually applied.

Like I said, I am under no delusion that I could have talked her into a downward departure or variance that would get the sentence anywhere near what my client got without the enhancement. Taking that into account, all I could think about was how the prior had the same title and nearly identical facts whether my objection was successful or whether I lost. How then could both the first recommended sentence, which the judge likely would have followed, have been not greater than necessary, when they second one was a fraction of the penalty?

Fascinated by the situation and the idea of thoughtful proportionality, I brought it up to a state prosecutor, a deputy Maricopa County Attorney, in passing in a hearing. His comment was that he was glad he didn’t practice in federal court. His sentiment was basically that it was scandalous for any government employee to ever do anything less than demand the law be imposed against individuals to its fullest extent. That means the most prison. No sentence is greater than necessary. Only the absolute maximum is sufficient. “Off with their heads!” Okay, well maybe he didn’t say that. Either way, I have to hand it to him. To them, really. The county attorney here is consistent. The philosophy of no prison term being too long will never cause the sort of hard, perhaps impossibly so, thinking it takes to fashion a sentence that’s sufficient but not greater.

When thoughtfulness obscures my vision, I can always count on Arizona’s prosecutor’s to cut through the bullshit with surgical precision. Forget about Occam’s razor, they’ve got Sheriff Joe’s tank. Literally, too. It’s the proud symbol of our state’s intellectually consistent commitment to the government doing everything it can get away with as much as it can get with it, and that includes sticking people in cages. Because it’s the only solution we have. And we’d have to think about it harder if we wanted less.

We should all be proud, right?