J A N U A R Y 1 9 6 0
by Judge Irving R. Kaufman
IF the hundreds of American judges who sit on criminal cases were polled as to what was the most trying facet of their jobs, the vast majority would almost certainly answer "Sentencing." In no other judicial function is the judge more alone; no other act of his carries greater potentialities for good or evil than the determination of how society will treat its transgressors.
In 1957, the average sentence for auto theft in the federal courts of eastern Oklahoma was thirty-six months, while in New Hampshire the average commitment for the same crime was less than a year. It is difficult to discern why the forging of a check should be twice as serious in the middle district of North Carolina as in the eastern district of that same state, but this is just what a breakdown of the average sentences for that year would seem to indicate. Last year, the average prison sentence meted out in the federal courts ranged from nine months in Vermont to fifty-eight months in southern Iowa. Of course, examination of the facts in the individual cases may reveal reasons which justify the differences. But, on the surface, the disparity in different sentences for the same offense seems unfair.
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The fact that this problem is neither new nor limited to one system of
courts is borne out by a study made several years ago of the sentences
imposed in more than 7000 criminal cases by six judges sitting in a state
court. One judge imposed prison terms in 57.7 per cent of his cases.
Another judge committed only 34 per cent of the prisoners before him. One
judge granted probation in 32.4 per cent of his cases; another in only
19.5 per cent.
A few years ago, two youths were arrested while trying to break into a gas station in a small Southern town. A third boy made his escape in the car in which the three had been driving. The two arrested youths readily admitted that they had stolen the car from a small city in upstate New York. They had intended to return it after a half hour's joy ride, but once in command of the vehicle, had decided to drive it to Florida. Halfway to their destination, their money exhausted, they had been about to ransack the gas station for money and food when a policeman observed them.
In the meantime, the alarm had been spread for the third boy and the car. He burglarized several gas stations along the highway but was finally arrested after having driven less than 150 miles. However, his attempt to escape had put him in a different state. Thus, a few weeks later the boys came before different judges, charged with automobile theft. They were all fifteen or sixteen years old, they had similar backgrounds, and their records showed no previous convictions. Basically, they all had committed similar crimes, but their sentences did not reflect this fact.
The youth who had escaped and committed additional offenses before his arrest was eventually placed on probation with no prison term. His two companions were each sentenced to three years' imprisonment. When two able and conscientious judges reach such startlingly disparate results in cases with striking similarity, it is plain that our sentencing procedures need to be re-examined.
OUR theory and practice in the area of sentencing have undergone a gradual but dramatic metamorphosis through the years. Primitive man believed that a crime created an imbalance which could be rectified only by punishing the wrongdoer. Thus, sentencing was initially vengeance-oriented. Gradually, emphasis began to be placed on the deterrent value of a sentence upon future wrongdoing.
Though deterrence is still an important consideration, increased emphasis on the possibility of reforming the offender -- of returning him to the community a useful citizen -- bars the harsh penalties once imposed and brings into play a new set of sentencing criteria. Today, each offender is viewed as a unique individual, and the sentencing judge seeks to know why he has committed the crime and what are the chances of a repetition of the offense. The judge's prime objective is not to punish but to treat.
This emphasis on treatment of the individual has created a host of new problems. In seeking to arrive at the best treatment for individual prisoners, judges must weigh an imposing array of factors. I believe that the primary aim of every sentence is the prevention of future crime. Little can be done to correct past damage, and a sentence will achieve its objective to the extent that it upholds general respect for the law, discourages those tempted to commit similar crimes, and leads to the rehabilitation of the offender, so that he will not run afoul of the law again. Where the offender is so hardened that rehabilitation is plainly impossible, the sentence may be designed to segregate the offender from society so that he will be unable to do any future harm. The balancing of these interacting, and often mutually antagonistic, factors requires more than a good heart and a sense of fair play on the judge's part, although these are certainly prerequisites. It requires the judge to know as much as he can about the prisoner before him. He should know the probable effects of sentences upon those who might commit similar crimes and how the prisoner is likely to react to imprisonment or probation. Because evaluation of these various factors may differ from judge to judge, the same offense will be treated differently by different judges.
The task of improving our sentencing techniques is so important to the nation's moral health that it deserves far more careful attention than it now receives from the bar and the general public. Some of those at the bar and many civic-minded individuals who usually lead even the judges in the fight for legal reform approach this subject with apathy or with erroneous preconceptions. For example, I have observed the sentiment shared by many that, after a judge has sentenced several hundred defendants, the whole process becomes one of callous routine. I have heard this feeling expressed even by attorneys who should know better.
Last year, an experienced lawyer rose to urge me to reduce by five years the sentence I had imposed on a particularly vicious narcotics offender. The prisoner was one of the most dangerous and unregenerate men ever to come before me, and his attorney was hard pressed to find plausible arguments in his behalf. Finally, after I had pointed out that everything in the prisoner's long and sordid record demanded long commitment, the lawyer turned to me and said, "But, your Honor, five years is a long time."
Of course, every judge is aware that five years in a penitentiary is a long time. He well knows that in many cases a prison term not only withers the life of the prisoner but spreads like a stain in an ever-widening circle, blighting the lives of innocent members of the family. Every judge is painfully aware of what five years without a father may mean to a prisoner's son. But society must be protected, crime must be deterred, dangerous offenders must be segregated, and prisoners must be reformed. Someone must decide what sentence will best effectuate these objectives. In the federal courts this task falls to the judge, but the problems of the sentencer would be the same no matter what his title.
In our federal court in New York, a single judge may pass sentence on ten or more defendants in a day. Often, sentencing occupies a large portion of the court day. A lawyer who grows verbose arguing a motion may be prodded by the court, but I have never heard of an attorney being hurried when asking mercy for his client. Respect for the dignity of the individual demands that the attorney be heard fully.
The fair resolution of the forces pulling for severity or leniency is a judge's most important and difficult task. It is an easy thing for a judge to acquire a reputation as a stern, or a humane, jurist by the way he responds to the ever-present forces urging excessive leniency on the one hand and unnecessary severity on the other. But resisting the pressures has its own reward -- the satisfaction of being able to say to oneself, "I have never consciously rendered an unjust decision." The day a judge is unable to make that statement should be his last day on the bench.
CONGRESS and the state legislatures make the basic policy decisions in regard to sentencing, through the setting of maximum, and occasionally minimum, sentences. The judge must take this legislative guide and apply it to the particular circumstances of the case before him. He must work within the legislative formula, even if he does not agree with it. Often the special circumstances of the case will demand the most severe penalties set by the statute. At other times, society's aims can be accomplished with a fine or a suspended sentence. This was the situation in the case of an elderly lawyer who, through weakness or stupidity, had become implicated in an embezzlement scheme. This elderly man had known no profession but the law, and even there a serious physical defect had restricted his activities to those of researcher and brief writer. He had neither relatives nor close friends and was entirely dependent upon the income from his legal work. His conviction itself meant automatic disbarment. From that moment, any lawyer who employed this man would be breaking the law. This prisoner was hardly a dangerous criminal to be segregated for society's protection, and the shock of his conviction had already chastened him more than any other punishment that might be imposed. In view of the circumstances, society could gain nothing from this man's imprisonment. He received a suspended sentence and was placed on probation.
However, in many cases, a judge's duty to consider the protection of society means that he must visit unhappiness upon people who did not act out of vicious motives and whom he would like to help, were he free to do so.
This would be true in a case, for example, where the prisoner is a food producer who, though honest enough, is completely inefficient. The record shows that on several previous occasions he has been fined for maintaining filthy premises from which unsanitary foodstuffs were shipped in interstate commerce, and, this time, the report, with its reference to dead rats in the flour bins, reads like one of the more vivid chapters of The Jungle. Repeated warnings have proved ineffective, and between warnings dangerously unsanitary products have been shipped. It is clear from the pre-sentence report that further admonitions would be useless and that even a prison term would not change this man's nature. In such a case, the judge might take advantage of the flexibility of modern procedures and place the prisoner on probation, on condition that he completely divorce himself from the bakery business. The sentence would probably mean the end of a business built up by hard work over many years, but the court's duty to the public might compel such a result.
Often the object of the sentencing judge is to place the prisoner in a position where he can do no further harm. This is the one theory of punishment upon which all schools of thought agree. There are some criminals who simply cannot be permitted to remain at large. However, segregation, while it may prevent certain crimes, will not prevent criminals, and the permanent isolation of all offenders is as economically unfeasible as it is ethically unthinkable.
I do not believe that we live in a den of potential thieves and cutthroats, held in check only by the terror of punishment. I have seen too many examples of the honesty and decency of the American people to believe that. On the other hand, it seems clear that, in many situations, crime has been discouraged by the knowledge that offenders will be treated severely. In 1956, the federal narcotics laws were stiffened to provide for a sentence of from five to twenty years for a first offender and from ten to forty years for a subsequent offender. A startling decrease in the number of newly reported drug addicts followed. For example, it is reported that in New York state the number dropped from 4138 in 1956 to 2836 in the first eleven months of 1958. Other states showed similar decreases. There are other examples of such successful deterrence. And yet the wisdom of a rigid high minimum sentence, fixed by statute with no discretion left to the sentencing judge, has been questioned by many.
Like most judges, I accept deterrence as one basic purpose of any sensible sentencing program. The need to discourage future crime often forces a judge to ignore his own sympathy for the prisoner. Let us consider the case of an illegal immigrant brought before a federal judge. The prisoner tells a truly heart-rending story. A native of an impoverished section of Europe, he had been unable to support his six children and in desperation had smuggled himself into this country aboard a freighter. Once here, he worked hard and sent most of his earnings to his family. The judge might seriously consider merely suspending sentence and ordering the prisoner's deportation. Surely this is no bad man. But the prisoner's record shows that this type of treatment has been tried unsuccessfully several times in the past. The man has simply stowed away on the next United-States-bound ship. It is clear in such cases that, if we continue to be lenient, it will become known that a man with a touching story has nothing to lose by illegally entering the United States again and again. Judges would be encouraging the violation of the very laws they were sworn to uphold. In this situation a judge might well find it his unpleasant duty to impose at least a short prison sentence on that offender as a deterrent to others.
In determining what sentence would be the best from the point of view of deterrence, neither the judge nor the legislature has any real scientific guide. I believe that more severe treatment may be warranted in the areas of narcotic violations and crimes endangering the national security. However, it does not follow from the general theory of deterrence that lawlessness can be completely eliminated simply by increasing the severity of sentences. Sooner or later, a point of diminishing returns is reached. For example, I doubt that there are many potential bank robbers not deterred by the present twenty-year maximum sentence who would be restrained by a forty- or sixty-year maximum sentence. Furthermore, sentences so high as to be out of proportion to the crimes committed have historically had an effect opposite from the one intended.
Occasionally a legislature, instead of strengthening the law enforcement agencies which provide the surest deterrence of crime, will attempt a cut-rate anti-crime campaign by the simple process of increasing the minimum sentences for a particular offense. If this minimum is so high that the public believes it manifestly unjust, the law may well be nullified by juries refusing to convict, even in the face of incontrovertible evidence. Those laws often become dead letters, and the legislature, by attempting to provide too much protection, succeeds in providing none.
The fact that about 65 per cent of those admitted to our prisons are recidivists indicates that in many cases even those actually subjected to the theoretically deterring punishment are not discouraged. If we are to reach our idea of the perfect sentencing policy, we must determine in a scientific manner the validity of the deterrence theory in various areas. We must answer such questions as: At what point does punishment stop chastening and begin embittering? What type of criminal activity attracts the type of men who will be deterred by threats? How much deterrence do we gain by an absolutely rigid, and hence predictable, sentence? How much does rigidity cost us in other fields?
The cost of deterring crime by long periods of imprisonment is frightfully high. Long prison terms mean large and costly institutions, and the human havoc thus created must sooner or later be paid for by all of us. Now, if it appears that in certain types of cases little is to be gained by deterrence-oriented sentences, the judges and legislatures might concentrate upon the reformation of the prisoner, with the view toward assuring that we shall never again have to foot the bill for this man while he is in custody, or repair what he breaks while he is at liberty.
The situation is somewhat complicated by the fact that segregation, deterrence, and reformation are not the only factors to be considered in sentencing. The judge and the legislature must also give weight to the impact the sentence will have upon society at large. I realize that the theory that a crime creates an imbalance rectifiable only by punishment is a much deprecated one, but it is a view held by a large segment of the population and must be recognized as a factor in the sentencing process. In speaking of retribution, I most emphatically do not mean that a sentence should be based upon a judge's personal indignation or upon vengeance. Men should not be condemned to prison for terms varying with the state of the Court's digestion, nor should the judge permit himself to be influenced by public hysteria.
But the general attitude of the public toward a particular type of crime is a different matter, and it must be taken into consideration if respect for the law is to be upheld. If people are continually shocked by sentences they regard as too lenient or by the granting of probation and parole without selectivity, they begin to believe that the criminal law has failed them and that there is a cleavage between their moral code and the law. The inevitable result is a decrease in public confidence in and reliance on the law.
WITHIN the last few years, cooperation among judges, lawmakers, and experts working in the rapidly developing behavioral sciences has given judges a series of extremely effective devices for determining how best to treat prisoners. Probably the most widely used of these is the presentence report.
In our court, these reports are prepared by the probation officers. These men go into the field and interview the prisoner, his family, his neighbors, friends, and employers. The voluminous data collected are then carefully analyzed and put into the form most useful to the busy judge. Last year, investigations were made of 89 per cent of the convicted criminal defendants in the federal courts of the United States.
The judge is able to study these presentence reports at home or in chambers and again on the bench. By the time the prisoner stands before him, the judge has a good picture of his background and of the forces and circumstances that led the prisoner from early childhood to his present predicament. The report enables the judge to arrive at reasoned answers to troublesome questions.
On the basis of this information, he can tailor the sentence to fit the situation at hand, confident that he is aware of most of the facts. There are occasions when the presentence report fails to give the whole story because the defendant has been uncooperative in giving information concerning his past or has been deceitful. Other tools have recently become available to the federal judges in such cases.
Early this year, one of these new devices proved extremely useful. The case involved a young stowaway. As a first offender guilty of a minor crime, the prisoner would ordinarily have received a suspended sentence or a very light sentence if warranted. But the case troubled the judge. Although the prisoner had been pronounced sane after a preliminary psychiatric examination, the presentence report indicated bizarre behavior patterns. Furthermore, the information he had given concerning his identity and background did not check out. In fact, the authorities knew almost nothing about the prisoner.
A few months earlier, the judge would have had no practical choice but to base the sentence on the information at hand, inadequate as it was. But Congress recently enacted a statute designed to cope with just this dilemma.
Under the new law, the court was able to commit the stowaway to a federal prison for further study before finally determining the length of the sentence. There he was given a long series of tests and examinations. His activity was observed for weeks, and skilled interviewers began gradually to piece together the scraps of information the prisoner inevitably revealed. Five months later, the picture was complete, and the sentencing judge received a full report. This young man, who might have been handled as an ordinary petty offender, was in fact an escapee from a state mental hospital, where he had been diagnosed as a schizophrenic. Had the new sentencing statute not been available, he would have been released, to the great detriment of society and himself. Thanks to the new law, he has been transferred to a state hospital where he will receive the care he requires and will be unable to harm others.
Inquiry into the mental and emotional state of a prisoner does not often require the expensive procedure followed in the case of the young stow away. Most such investigations can and should be handled locally by personnel attached to the court, and for this reason some of our more forward looking states have provided their courts with psychiatric clinics. Last year, the clinic attached to the court of special sessions in New York City made diagnostic examinations of seven hundred new cases and provided consultation and instruction for a staff of approximately seventy probation officers. The dividends from these activities far exceeded the clinic's annual cost of $72,830.
It is unfortunate that budgetary limitations often deny our courts not only adequate psychiatric consultation but even the staffs needed to prepare the essential presentence reports. Such economy is shortsighted. The premature release of a single dangerous criminal often costs the community far more than the yearly budget of the probation department or psychiatric clinic that could have uncovered the peril in time.
NEWLY developed diagnostic methods may indicate that the prisoner's chances for reformation are excellent and that this can safely be accomplished outside prison, through probation. Unselective use of probation is a positive danger to society. It is corrosive of the principles of deterrence and segregation and of the court's efforts to uphold public respect for the law. But, when intelligently employed, probation, under an efficient probation department, promises immense savings in human resources and in public funds.
Let us take the case of an embezzler who a judge believes worthy of probation. The man is immediately assigned to a probation officer. The convicted embezzler will visit the officer at stated periods to report on his progress. He will also receive unannounced visits from the probation officer. With the officer's help, he learns to make his adjustment in the same environment that will face him when supervision ends. If this same man had been committed to prison, he would first have had to adjust to the institutional environment, where he would have borne little responsibility. Upon his release, he would have had to make a second and perilous adjustment to normal life. Probation, selectively used, avoids this sudden decompression.
This type of supervision, which has proved so useful in the administration of justice, costs the taxpayers approximately $150 per year per offender, about one tenth the cost of keeping a man in prison for the same period. There are other and greater savings to be derived from this. During the entire parole and probation period, the contrite offender is a productive citizen, contributing his skills to the general welfare, paying taxes, and supporting his family, which probably would have been thrown on the relief rolls had he been imprisoned for an extended period. What may be more important, the family is kept together, and a more normal environment provided for the probationer s children.
It is difficult to measure statistically the success of probation Since probationers are by definition the most promising of our convicted offenders, it is only to be expected that their rate of recidivism would be considerably lower than the average.
In the federal courts, approximately 40 per cent of all guilty defendants are placed on probation. In our court in New York, more than 90 per cent of these offenders conclude their term of probation successfully. The credit for this high rate of success belongs largely to our probation department, a dedicated group of approximately seventeen officers who have a deep devotion to duty and are motivated by one objective -- an interest in the man who finds himself in an unfortunate position and in his rehabilitation.
Even where the reports and the nature of the crime indicate that commitment is necessary, the judge must still consider the prisoner's capacity for reformation. Occasionally a prisoner's only hope is a period of forced confinement that will isolate him from his former associates and force him to take stock of his situation. Often this forced stocktaking is an extremely effective form of treatment. Only incarceration can bring home to some criminals that society actively disapproves of their conduct and has the power to stop them should their crimes be repeated. Surely there are recidivists who return to federal prisons time and time again, despite the efforts made in the prison to rehabilitate them. But we must also remember that there are many prisoners who have been taught a lesson by their incarceration and have returned to the community better citizens.
Perhaps our greatest advances have been made in the handling of young offenders. Prisoners sixteen to twenty-three years of age present a special problem. Generally they are more responsive to intelligent treatment than older prisoners, but prognosis is extremely difficult, and sometimes coddling of the youthful offender who has shown traits of hard-bitten criminality may do injury to both the offender and society. A judge cannot predict how an eighteen-year-old will react to four or five years in an institution. Enlightened federal and state statutes meet this problem by providing for special treatment for young prisoners. The statutes also permit sentences under which the maximum, but not the minimum, is set by the judge or by law. The offender is then transferred to a specialized institution and can be released under supervision at any time before the expiration of the maximum sentence when he has shown himself ready to re-enter society.
I believe we can take real encouragement from our progress in the area of reformation. True, much remains to be done. We must learn to discover more about the prisoner as an individual and much more about the effects of certain types of treatment. Yet a start has been made.
THE nature of the sentencing problem and its causes are easily stated, but arriving at a solution is difficult. Many suggestions have been put forth over the years, but most of these suffer from fatal flaws.
Rigid, legislatively-set minimum sentences in all cases are no answer. They would negate the years of progress we have made in tailoring the punishment to fit the particular situation before the court. It has also been suggested that the sensitivity of judges to particular offenses might be avoided by allowing the juries to set sentences. I believe that such a system, far from being helpful, contains some serious dangers. A few states do give juries sentencing power in certain cases. In these jurisdictions, the courts are often faced with an insoluble dilemma. If they follow the universal practice in criminal cases and withhold from the jury any evidence of the defendant's past misdeeds, the jury will have little information on which to base its sentence. If, on the other hand, they permit the jury to hear about the defendant's prior vicious acts, they run the very real risk that convictions will be based on a determination that the defendant is a bad man, and therefore is probably guilty of the instant offense. Special post-verdict sentencing hearings before the jury are probably too cumbersome to be used generally and for all offenses.
Some states have taken the sentencing function partly or entirely away from the judge and have given it to a body whose sole function is sentencing. Under some of these plans, the judge must sentence the prisoner to the maximum sentence provided by statute. In other states, he sets the maximum he considers just. But there his power ends. In effect, the prisoner has received an indeterminate sentence. The offenders are then studied by prison authorities and questioned by boards or authorities, often comprised of experts in the fields most concerned with sentencing. They may include men with experience as prosecutors, policemen, and probation officers. The responsibility for determining the length of imprisonment really rests with the boards. This system has the advantage of enabling sentencing to be deferred until the prisoner can be observed and studied.
However, a sentencing judge can achieve the same ends, in cases that seem to warrant it, by deferring sentence until a thorough study is made of the prisoner. Furthermore, where there are large numbers of prisoners to be sentenced or where this function must be performed in widely scattered localities, a sentencing authority must divide itself into sub-boards. As a result there may be little, if any, gain in uniformity.
I believe that the sentencing responsibility should remain where it has traditionally rested -- with the judge. Of all public officials, he is the best insulated from public and political pressures. Certainly the judge is not an expert sociologist or criminologist, but he need not be. He is an expert in making difficult decisions on the basis of the best information available, and this is exactly what is called for in sentencing.
The fact that I do not believe that the disparity problem can be solved by removing sentencing authority from judges does not mean that I despair of an ultimate solution. In fact, Congress has taken a great step in that direction by authorizing institutes and joint councils on sentencing problems. A pilot institute on sentencing on a national basis, attended by federal judges from various parts of the country, was held at the University Of Colorado at Boulder in July, 1959. Out of this, it is hoped that guides for the agendas for regional meetings will be formulated. I expect that a considerable amount of disparity will be eliminated by the mere exchange of views as to which factors should be considered and how heavily they should be weighed. The mistakes and successes of one judge in developing sentencing techniques will be available to other judges.
The safeguards provided during trial are a tribute to our sense of fair play. If a ruling of the trial judge violates any of these procedural safeguards, the defendant may appeal and perhaps secure a reversal of his conviction. However, it should be noted that, once a verdict of guilty has been pronounced, there are few further checks on the trial judge's determinations. Were a judge to impose a sentence completely disproportionate to the crime committed, the higher courts might be unable to prevent the injustice so long as the sentence was within the statutory maximum. For this reason, some judges have advocated appellate review of sentencing.
This system has been tried with varying degrees of success in a number of our states and in England. Under one proposed system, the sentencing judge would be required to write or dictate a memorandum explaining the factors he considered in passing sentence. In most cases, the memorandums would be brief and would require little extra work. Only in the case of dispositions differing greatly from the average would the judge go into great detail. A prisoner who believed himself aggrieved by a sentence would have the right to appeal to a court constituted for this purpose. This sentencing court would be made up of trial and appellate judges selected for short periods on a rotating basis. Under other proposals, sentences would be reviewed by the regular appellate Courts.
If the reviewing court believed a sentence incorrect, it would vacate it and impose a new sentence, either more or less severe than the original. The possibility that the sentence might be increased would prevent a flood of frivolous appeals and keep the work of this new court within manageable limits. The system is no panacea. It would not eliminate sentences that are so lenient as to make a mockery of the law under which the prisoner was convicted, and the judgment of the sentencing judge would probably be overridden only in the clearest cases.
The reviewing court would be required to write an opinion setting forth the factors which led it to revise a sentence. These would be published, and in time a body of opinions would develop, outlining -- albeit roughly -- the elements which should and should not be taken into account, and would also give some idea of the weight to be given each. It would be a flexible standard, but a standard nevertheless.
Appellate review would, of course, involve far-reaching changes and could raise numerous problems of its own, including possible constitutional objections to the increasing of sentences, and I do not favor it, therefore, at this time. We must first try to utilize the weapons available to combat disparity.
As I have tried to show, the defects in our sentencing systems are potentially responsive to a rational approach. We must re-examine in the light of modern scientific knowledge some of our sentencing axioms. We must foster greater cooperation between judges, law-enforcement officials, and the other disciplines that have so much to offer in our quest for the correct sentence. Finally, we must attack the disparity problem realistically and achieve a greater interchange of sentencing information among judges. I firmly believe that, once the importance of the sentencing problem is perceived by the public, we will have set our feet firmly on the road to our goal: the imposition, in every case, of the sentence that promises society the maximum protection and the offender the best possible chance to live a useful and productive life.
Copyright © 1960 by Irving R. Kaufman. All rights reserved.
The Atlantic Monthly; January, 1960; Sentencing: The Judge's Problem