The Many Foes of Discretion in Criminal Cases

The left and the right often are against discretion in criminal justice

The Obama Administration, in the person of Attorney General Holder, has proposed reforms that are intended to make mandatory minimum sentences less common for low-level drug offenders in selected federal drug cases, and, allow federal prisoners to have compassionate early release in certain circumstances (e.g., terminal illness, death of the other parent of the prisoner’s young children). Having advocated for these sorts of changes from the inside and outside, I am very pleased by these policy proposals, but also expect that they will meet with some significant resistance, and not just from the political right.

Mandatory minimums and indeed the broader move in the 1980s towards invariant, tough sentences in drug cases is often misremembered as an entirely conservative invention. It was not, for a reason I have outlined before:

Much of the U.S. public now sees the federal government as a malign, dreaded influence in their lives. Some conservative politicians share this perspective and work hard to fan such popular fears. Meanwhile some liberal politicians see any allowance of discretion and autonomy by civil servants as an invitation to disparate treatment based on race, sex, class, disability etc. These two camps make common cause to tie down the federal government with as many rules as possible.

Many liberals supported the transformation of criminal justice penalties that occurred in the 1980s, with Tip O’Neil being the highest-profile example. Part of this had to do with many of them representing urban areas full of residents who were sick of crime. But it also had to do with many liberals’ instinctive distrust of governmental discretion. Such people argue — not without reason — that if you let judges determine sentences, some of them will hand out stiffer punishments to minority criminals than they do to white criminals convicted of the same offense. Expect at least a few leftists who gain a platform in the coming debate about Obama’s sentencing reforms to raise this concern.

My own view is that mandatory minimum sentences don’t reduce discretion so much as move it from judges to prosecutors, and more generally that (warts and all) I would rather have sentences determined by people with personal knowledge of individual criminal cases than by elected officials in a faraway city. For that reason I would like to see the Congress endorse even more governmental discretion by restoring parole within the federal prison system, which it abolished in 1984. If we are willing to have correctional officials make judgments about who deserves compassionate early release because of illnesses and family tragedies, then we should be equally willing to let the same officials make judgements about who might be released because they are rehabilitated and unlikely to re-offend.

Author: Keith Humphreys

Keith Humphreys is a Professor of Psychiatry at Stanford University. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans and drugs. He is the author or co-author of numerous books and scholarly articles, and has written for the New York Times, Wall Street Journal, Washington Post, The Guardian (UK), the San Francisco Chronicle and other media outlets. When he is not in the San Francisco Bay Area, he is usually in London, where he is an ad hoc policy adviser to the national and city government, an honorary professor of psychiatry at Kings College, a senior editorial adviser to the journal Addiction, and a member of The Athenaeum. When he is not in the San Francisco Bay Area or London, he is usually in Washington D.C., where he serves as a frequent science and policy advisor to federal agencies, and where he has served previously as an appointee to a White House commission and several Secretarial task forces. From July 2009-2010, he served as Senior Policy Advisor at the White House Office of National Drug Control Policy. When he is not in the San Francisco Bay Area or London or Washington D.C., he is usually in the Middle East, where since 2004 he has volunteered in the international humanitarian effort to rebuild Iraq’s mental health care system. This work has taken him to Turkey, Egypt, Iraq, Jordan and Lebanon to teach and consult with Iraqi health professionals and policy makers.

14 thoughts on “The Many Foes of Discretion in Criminal Cases”

  1. Well, it is hardly a secret that Stephen Breyer was heavily involved in the creation of the federal sentencing guidelines, so I’m not fundamentally in disagreement with any claim that progressives have made their fair share of mistakes. At the same time, it’s hard for me to subscribe to a “pox on both your houses” assessment of the situation. There are substantive differences between the mistakes that progressives and conservatives have made, and I would argue that the perpetual clamor for “tough on crime” policies (in its worst form, whenever a Republican gets excited over making political hay out of death penalty cases) has had a far stronger influence on the political climate than anything progressives did.

    Ultimately, if the electorate has a strong bias one way or the other, policy making is heavily constrained by such a bias, and Republicans have been stoking the fire of public opinion for decades (and keep doing it) in order to create such a bias, making a rational discussion of difficult and often counterintuitive policy choices difficult.

    1. @ Katja: I wrote “misremembered as an entirely conservative invention. It was not.” What you are saying is consistent with what I am saying, as far as I can see.

  2. The whole get-tuff-on-crime movement has been an abject failure. Prosecutors now evaluate themselves not on whether they believe they’ve served justice, but on how many convictions they get, how serious those crimes were, and how long they’ve locked the bad guys and girls up. This has led to the whole sorry mess we have now.

    There are dangerous people out there who need to be kept away from the rest of us. Those people need to be keep locked away. We have better options for the others … our generous host has told us of some: Project HOPE, South Dakota’s 24/7 Sobriety movement. Economic crimes (like tax evasion) should have primarily economic penalties, not lengthy prison terms.

  3. I think another impetus for both mandatory minimums and the sentencing guidelines was that because these sentences were attached to specific crimes or enhancements thereby making their application discretionary with prosecutors instead of judges, the threat of long sentences for everybody in the drug pipeline could be used in much the same way that CCE and RICO laws were used to get little fish (even minnows) to flip and testify against higher-ups in the food chain. Realistically, however distasteful people may find it, there’s simply no other way of getting at higher-ups in a drug operation.

    Certainly, one problem is that sometimes prosecutors rather callously abused their discretion and charged people who simply had nobody to give up in return for leniency. Another is that narcotics is a very violent business. Many people weren’t willing to risk their lives and the lives of family members for leniency. Consequently, there are lots of people with sad stories who got stuck with extremely long sentences. It’s a terrible thing but once they’ve said no to the offer, you can’t really give them a break eliminating the ability to induce cooperation from others in the future.

    Also, I think the desire to have a more objective method for sentencing was also based to a certain extent on concerns about how judges arrived at their sentencing decisions. When I was in the system, I saw what seemed to be a whole lot of “extraneous factors” being considered by judges in sentencing decisions. And I’m not talking about just racial discrimination: I have seen judges who used their religious beliefs, their relationships with particular lawyers or just how they were feeling on a particular day to arrive at some pretty strange sentences.

    Sometimes defendants got undeserved breaks. Somethings they were hammered in equally unjustifiable ways. The entire system of sentencing was totally arbitrary and capricious being based on nothing more than some combination of bigotry, politics, corruption, stupidly and sheer laziness. Whether you got 20 years or probation on the same charge very often depended on the lottery by which cases were assigned. That’s a crazy way of doing business especially since the players in the criminal justice system lest capable of exercising good judgment tend to be judges.

    Another point that’s related to what Katja said is that sometimes the desire to avoid discriminatory outcomes by limiting discretion has unwanted side-effects. Many years ago, I worked in an office where charging decisions in capital cases were insulated from appellate claims of racial discrimination by charging as first degree murder every case that fit the statutory requirements. That way nobody could complain on appeal about our bias in deciding who got charged with first degree murder—we asked for the death penalty in every eligible case regardless of race, colour, creed or whether a person might be genuinely deserving of being given a break. But to have a system whereby individual circumstances are considered on the merits by prosecutors with unfettered discretion is also to create an enormous, possibly fatal weakness on appeal.

    It’s the essential dilemma: To stop defendants from being subjected to unfair and unfettered discrimination, we limit discretion and try to force reliance on objective criteria. Yet sometimes the lack of discretion creates outcomes that seem unfair. My guess is that vesting unaccountable technocrats with discretion isn’t going to be an improvement and probably will have at least the same number of seemingly unfair outcomes.

    1. I share many of Mike’s concerns, below, but I can see the other side too. Overall, it makes me even more against the drug war though. It really doesn’t seem to work.

      I think though that there could also be some sort of outcomes and geographic statistics feedback loop that could be created, so that judges could see what other judges were doing and sort of align themselves. Heck, maybe they already do this? I seem to notice a lot of variation with drunk driving “murder” cases, and I suspect it is based on the victim, and I don’t see anyone doing anything about it. But my concern is based only on particular cases or anecdotes too.

      For me I tend to lean towards judges having at least some discretion, even though occasionally this means you get one of those old coots lecturing rape victims about their clothing. At least it is a human system and the occasional election? Plus, embarrassment can do wonders too.

      1. It seems to me there is a package of tried and true remedies for some of our justice issues, like taping interrogations, making lawyers switch sides every so often, and using stats more. I wonder if any group has packaged these. Someone should.

  4. Many liberals supported the transformation of criminal justice penalties that occurred in the 1980s, with Tip O’Neil being the highest-profile example. Part of this had to do with many of them representing urban areas full of residents who were sick of crime. But it also had to do with many liberals’ instinctive distrust of governmental discretion. Such people argue — not without reason — that if you let judges determine sentences, some of them will hand out stiffer punishments to minority criminals than they do to white criminals convicted of the same offense. Expect at least a few leftists who gain a platform in the coming debate about Obama’s sentencing reforms to raise this concern.

    Maybe, but I doubt it. I think there’s been a learning experience on this point. And as a language quibble, I think the vast majority of my fellow leftists didn’t support this move in the first place. Liberals, on the other hand, did. And then there’s that shameful lie, “I didn’t inhale.”

    1. My memory of the policy debates over limiting judicial discretion through the use, insofar as possible, of objective criteria such as the loss caused, the quantity of narcotics and so forth is very much the same as Keith’s description of why many liberals (and many other stripes of leftists) strongly favored the guidelines approach. Speaking for myself only, I felt that some more objective methods for determining was essential. Partly because I thought that the difference in sentencing from judge to judge was arbitrary and capricious. But also because I concluded that while some unfairness in sentencing was the result of caprice, a significant amount of it was attributable to racialism.

      Again, without presuming to speak for others, I believe that most liberals who were familiar with the criminal justice system stongly favoured the adoption of some form of sentencing guidelines and also held beliefs similar to mine. Yes, there’s always been a lot of disagreement on the tariffs and conservatives have tended to lard up the guidelines in favor of harsher penalties but I believe liberals generally continue to support having guidelines for the reasons Keith describes.

      Where I part company with Keith is on the question of where the limited amount of discretion should be lodged. I believe that prosecutors should have a great deal of leeway because of the difficulties presented by organized crime and that decisions about leniency should be made by judges and not faceless technocrats. Apart from that, I think he’s obviously right in his analysis.

      1. Mitch wrote:
        ” I believe that prosecutors should have a great deal of leeway because of the difficulties presented by organized crime and that decisions about leniency should be made by judges and not faceless technocrats.”

        The issue at hand here is caused precisely because prosecutors have lots of discretion and the judges none. It was never the case that discretion was taken from prosecutors. In fact, it was even enhanced, as your earlier statement notes…

        “…these sentences were attached to specific crimes or enhancements thereby making their application discretionary with prosecutors instead of judges, the threat of long sentences for everybody in the drug pipeline could be used in much the same way that CCE and RICO laws were used to get little fish (even minnows) to flip and testify against higher-ups in the food chain. Realistically, however distasteful people may find it, there’s simply no other way of getting at higher-ups in a drug operation.”

        I’d suggest that these tactics have proven to be a massive failure. Someone thought this was an easy shortcut around difficult investigative work that no one really wants to stick their neck out to do. “Let’s let the criminals do it for us…” Really? I see little evidence of the effectiveness of this tactic for anything except expanding prisons and prosecutors reputations as “tough” — or simply lazy.

        As you’ve described, prosecutorial discretion is abusive and corrupting to the ends of justice. To retain it and keep the judges away from it makes no sense. What’s really needed is to perhaps retain mandatory mins, but make them much shorter and more realistic.

        And the idea that any of this applies to marijuana is pretty ridiculous, for a number of reasons I won’t belabor.

        1. I am glad Mitch raised the issues he did. There are reasons to be worried about discretion as I said in the post.

          On the faceless technocrats issue, well, how many of us can name any of the members of the U.S. Sentencing Commission? Yet it was they, not Congress and not judges, who made many of the essential moves on reducing crack cocaine sentences. Indeed, it was one of many cases where people who need voter support to keep their jobs kicked things to faceless technocrats because they could do what the elected officials felt they could not.

  5. Another side of the “tough-on-crime” and enormous incarceration rates is the almost-complete elimination of the notion of redemption from the criminal-justice lexicon. Anyone else remember the days when ex-cons were said to have “paid their debt to society”? Now you have provisions for keeping convicts in prison after their terms are over, conviction (except white-collar) as a bar to most employment, restrictions on where ex-cons can live and so forth. And we wonder why recidivism.

  6. Paul wrote restrictions on where ex-cons can live and so forth. And we wonder why recidivism.

    This is particularly true in drug cases. George Miller in the House and the Administration made a run at this during the student loan revision process, and very nearly got that restriction struck, but it just barely failed. There will be a new bill introduced this year or next that will make another run at this.

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