Rule of law or discretion in sentencing?

Hi, I’m Barry Lam, associate professor of philosophy at Vassar College, and the producer of Hi-Phi Nation, a show about philosophy that turns stories into ideas In this video, we’ll discuss the extent to which it should be up to individual judges to decide what punishment defendants receive for their crimes. Let me tell you about David Kent Fitch who was found guilty for making charges on his wife’s credit card and taking money out of her personal bank account. He stole about $56,000 and the typical sentence for the crime he was charged with is about 4 years in prison. The judge sentenced Fitch to 22 years. The surprising thing is, it might have been the morally right thing to do. There’s an ongoing question in the political philosophy of punishment as to whether or not judges should have discretion as to whether or not judges should have discretion in how they apply the law in issuing criminal punishment to convicted defendants Advocates of the rule of law believe there need to be laws matching crimes to sentences that are passed by democratically elected legislatures, who reflect the will of the public. Once these laws are in place, institutions should apply them blindly and uniformly, so that no one is treated particularly leniently, or harshly, depending on the whims and judgments of particular judges. On this view, when it comes to punishments, it should be impartial laws, and not individual judges who determine sentences. The history of the rule of law in sentencing though isn’t pretty. Legislatures started passing mandatory minimums for many crimes, particularly drug crimes, as well as Three Strikes and You’re Out laws. These sentencing requirements gave many people 10 years in prison for even minor drug convictions, and life sentences to people who had three felony convictions, regardless of the severity of the felony. All of these laws dramatically increased the length of prison sentences, and prohibited judges from giving shorter sentences or probation for defendants they deemed no danger to the public. Moreover, the demand for the rule of law in sentencing flies in the face of a crucial value that comes from the ordinary practice of assigning moral responsibility. Wrong acts don’t take place in a vacuum, but involve very specific contexts and individuals that make people sometimes more, and sometimes less, to blame for their criminal acts. Some things mitigate blame, like when a young person deals drugs to make ends meet after being kicked out of their home by their parents because of their sexual orientation. Other things amplify blame, like when a person convicted of illegal dogfighting turns out to have a history of animal abuse. There is no way for lawmakers to try and write out punishments ahead of time for all crimes and all the mitigating and aggravating factors that might be present during those crimes. The only way for punishments to reflect any mitigating or aggravating factors is to leave sentencing to a judge, who’s in a better position than lawmakers to understand the particular facts of an individual’s case and use their discretion in determining the right punishment. Which takes us back to David Kent Fitch. The jury convicted Fitch of taking money out of his wife’s accounts and credit cards, and trying to transfer her assets to his name, and to the name of his lover, who was awaiting him in Britain. A uniformly, blindly applied punishment for these crimes would have been about 4 years in prison. However, at the time of sentencing the Government recommended that Fitch receive 30 years in prison the statutory maximum for bank fraud. This recommendation was based on additional information strongly indicating that Fitch had murdered his wife to effectuate his scheme. Here is the full story. Fitch and his wife told friends that they were going on a “mini trip.” Over the next several weeks, Fitch withdrew thousands of dollars from his wife’s bank account, at least once while disguised, and gave inconsistent answers when asked about her location. Park rangers later saw Fitch discarding several items into a dumpster, including a receipt showing a purchase of chloroform by a “Dr. David.” Further investigators also discovered receipts for rope and a body bag. In the meantime, Fitch obtained a fraudulent passport and traveled to London where he married his lover under an assumed identity. He was eventually caught while on a trip back to the U.S., but law enforcement never found a body, so Fitch could never be charged with murder. All of these facts surrounding Fitch’s crimes were given to the judge, who treated them rightly as aggravating factors contributing to the severity of the punishment and used his discretion to sentence Fitch to 22 years in prison. In this case, it seems like judicial discretion made it possible for Fitch to receive the punishment he deserved. However, it is precisely this kind of discretion that is highly objectionable to advocates of the rule of law because, as they see it, this gives individuals in the system too much power to issue justice according to their own whims. For every judge that gets a sentence right, there will be other judges who get it wrong Many judges hold prejudices, and these biases may make them sentence someone too harshly or too leniently for a crime, based on factors like the defendant’s skin color. All of these are the costs of a sentencing system that relies on the discretion of individuals rather than a uniform application of the rule of law. But if the justice system is to reflect morality, it cannot ignore mitigating and aggravating factors for blame, just like it cannot ignore the injustices that might result when the personal biases of individual judges are left unchecked. Ultimately, morality demands that all of these considerations be factored in when determining how much punishment is deserved. What do you think?