Vsauce! Kevin here -- with a math problem. Or a moral problem. Or BOTH.
In 1972, two men were convicted of cashing fraudulent checks, one for $58.40 and the other
for $35.20. Neither had a criminal history. One got 30 days -- the other got 15 years.
In the Arizona v. Marlow murder case, the defendant was sentenced to death -- and his
co-defendant who also participated in the killing got just 4 years.
And a 2016 working paper from the National Bureau of Economic Research
showed that judges in Louisiana gave harsher sentences to juvenile offenders on the Mondays
after the LSU Tigers football team lost a game.
What makes criminal sentencing so unfair?
At the most basic level, justice is ‘giving people what they deserve.’
Part of that might be punitive -- if you’ve harmed someone else or society in general,
maybe you deserve to be punished. Part might be protection -- that society shouldn’t be exposed
to continual threats of harm. Or should sentences be purely about restitution and rehabilitation,
with a restorative focus on healing the victim and improving the offender? If so,
should a criminal only serve as much time as it takes to make sure it won’t happen ever again?
A just sentence has to find a balance between all these valid philosophical questions -- and
outcomes can vary tremendously from judge to judge. TREMENDOUSLY.
In 1973, the sentence in the United States for a federal charge of kidnapping was “any term of
years to life.” You could get probation or you could get 25 years -- depending on the judge.
Federal judge Marvin Frankel called the potential for sentencing disparities, “... unthinkable in a
government of laws, not men.” His book “Law Without Order” exposed shocking
variations in federal sentencing as a result of a complex system in which hundreds of years of
ever-evolving law can determine your guilt, while a robed public official who’s in a bad
mood because they’ve got heartburn can make you pay whatever price they want in that moment.
Frankel highlighted, “... the almost wholly unchecked and sweeping powers
we give to judges in the fashioning of sentences,” and he called them,
“terrifying and intolerable for a society that professes devotion to the rule of law.”
But the math-based cure was worse than the disease of human variability.
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Okay. Here’s the thing.
Sentencing is hard. Look. Let’s try to solve sentencing for property crime
right now: a judge calculates the amount of labor it takes the crime victim to get a thing,
and a thief serves exactly that amount of time as punishment for stealing it. So let's say you
make $20 an hour, someone steals your $1,000 TV. So, they'd serve the 50 hours of labor
they took from you. The sentence fits the harm done in the crime, and everyone’s sentence would
be calculated without prejudice. That sounds perfectly fair, right? WRONG.
We’ve just incentivized everyone to go steal Elon Musk’s car
because your punishment would only be the 2 minutes of labor it took him to buy it.
Every incarnation of justice has unintended consequences.
But you can eliminate statistical outliers.
The Sentencing Reform Act passed in 1984 as a result of Frankel’s advocacy for a fairer,
more consistent justice system -- and both Republicans and Dem ocrats supported its
introduction of objectivity: putting crimes through a complex algorithm to determine
sentences, with mandatory minimums and maximums that lessened the impact of
outright bias and just plain philosophical disagreement among judges. Rehabilitation was
abandoned; simple punishment was the goal. And what’s more objective than numbers and formulas?
It worked like this.
A crime was assigned one of 43 levels -- so, trespassing is Level 4, kidnapping is Level 32.
Then levels could be added or subtracted based on the specifics of a crime. A Level 20 robbery would
become a Level 25 if a firearm was brandished, and a Level 27 if it was actually fired. If the
offender was a lesser participant in the crime, 4 levels would be taken away down to Level 23. Did
they accept responsibility? 2 more levels gone. 1 level gone for pleading guilty. Back to level
20! Then that number was put into a 6-category criminal history table to calculate the range of
sentencing: for a Level 20 offense by someone with a Category III criminal history? 41 to 51 months.
But even determining levels ended up having problems.
In the 1991 case Chapman v. United States, the court decided that the medium in which a drug was
transmitted would count as the weight of the drug being factored into a dealer’s sentence. The case
involved LSD -- selling 100 doses in sugar cubes came with a sentence of 188 to 235 months. Another
dealer with 100 doses in paper would get 63 to 78 months because paper weighed so much less than
sugar cubes. 100 doses of pure, unadulterated LSD with no mixture? Only 10 to 16 months.
ONE SINGLE DOSE OF LSD IN THIS GALLON OF CHOCCY MILK WOULD GET ME SENTENCED FOR ABOUT
4 KILOS OF SCHEDULE 1 DRUGS AND SERVE OVER 20 YEARS IN PRISON AS A FIRST TIME OFFENDER.
NONE OF THIS MAKES ANY SENSE.
An appeals judge said, "To base punishment on the weight of the
carrier medium makes about as much sense as basing punishment on the weight of the defendant.”
Running crimes through rubrics and point systems to determine arbitrary numerical values divorced
sentences from the unique aspects of the crime and its victims, and the characteristics
of the offender. It also totally nullifies a judge’s lifetime of professional expertise.
But mandatory federal sentencing guidelines…
actually DID solve problems. A study by the US Sentencing Commission found that in 1986,
sentences varied by about 17% -- and just 7 years later that variation was cut to 11%. Mandated
sentences cut down the influence of judges’ whims -- against some defendants and in favor of others.
But it didn’t matter.
The Supreme Court struck down federal sentencing mandates in 2005
citing a violation of the 6th Amendment. Just 3 years after Marvin Frankel’s death, sentencing
mandates were now just suggested guidelines -- and the variations in sentencing came right back.
So, in some ways the algorithm worked. It reduced extreme sentences,
some systemic bias, statistical noise, and standard deviations.
And it also failed badly with its robotic, arbitrary, and sometimes nonsensical results. That
flatout made some things much worse. Like messed up mandatory minimum and determinate sentences.
Judges were happy to get their professional discretion back -- 75% preferred the new
system of using the guidelines as an advisory tool while only 3% preferred pure mandates.
But how does one human mind discern exactly the right amount of punishment?
If you steal something, why isn’t it enough just to pay the person back?
How fair is it that someone can take a life, yet only pay with 10 or 12 years of their own?
To what exact degree does a first time offender differ from a second time offender from
a tenth-time offender? Do we ever just give up on rehabilitation?
Is a criminal responsible for the harm he does to future generations?
Does an eye for an eye mean severe retribution? Or does it actually place a limit on a fitting
punishment? Are there any crimes we should just... accept? Should senile elderly
people be responsible for the crimes of their youth? Should we even have victimless crime?
Is the possibility of injustice the price we have to pay for a chance at perfect justice?
Are we trying to punish criminals? Rehabilitate them? Separate them from society? A combination of
all three? If so – what’s the proper balance of that? And how do we reduce conscious
bias, unconscious variability and noise at a national level that still allows for the nuance
of individual circumstances to be addressed fairly – city, state, and country-wide?
What’s the algorithm to figure out all of that?
What’s the algorithm… for morality?
What’s the algorithm… for justice?
And as always, thanks for watching.