“Truth and Deception in Criminal Sentencing”

The title of this post is the title of this new article authored by Paul Robinson and Hugh Rennie now available via SSRN. Here is its abstract:

News accounts routinely report the sentences imposed by judges and there are commonly debates over their propriety that can shift public attitudes and have political consequences. Yet, these publicly imposed sentences commonly have little meaning. In all but a few states, the sentences imposed in court routinely create a highly distorted picture of what terms of imprisonment offenders are actually serving. Half of the states allow a discount of 75% or more off the sentence publicly imposed and two-thirds of the states allow a discount of 50% or more, even if the sentence is publicly represented to be a “minimum sentence.” Part II details these statutorily-authorized discounts and goes on to show that most states make significant use of this early release authority, even for the most serious violent offenses such as rape, aggravated assault, robbery, and murder. The data suggest that in all but a few states, whenever a person hears of a sentence imposed in court, they should probably assume that the actual time served in prison is likely to be significantly and even dramatically less.

There are good reasons for states to institutionalize such sentencing sleight-of-hand. As Part I details, it allows them to announce a dramatic deterrent threat without having to pay the incarceration costs of the publicly-announced minimum sentence. And it provides useful political optics to state governments who want to avoid being seen as “soft on crime” but who, for ideological or financial reasons, also want to minimize incarceration. As Part V documents, institutionalized deception is aggressively pursued by both Republican- and Democratic-controlled states.

As Part III details, however, there are serious societal costs in such deception. The vast majority of crimes are committed by persons previously convicted who therefore are not fooled by the fake deterrent threat. Perhaps even more damaging is the hit to the criminal justice system’s reputation with the community when it becomes apparent that the “minimum sentence” publicly imposed is no such thing. As the system increasingly loses credibility, it will increasingly lose its normative power to gain assistance, cooperation, acquiescence, and compliance, as well as its ability to induce people to internalize its norms.

It is this destructive practice of sentencing deception that has been in large part the motivation for the “truth in sentencing” movement examined in Part IV. In the Sentencing Reform Act of 1984, the federal system moved to require an offender to serve at least 85% of the sentence publicly imposed. Only a few states have followed the federal lead.

The Article does not at all argue for longer prison terms but rather for greater transparency. Whatever imprisonment policy a state decides upon, it ought to accurately and fully describe at the time of public sentencing how the offender at hand will be dealt with. With greater transparency, the public and the politicians can know what is really going on in their criminal justice system, and reforms can be based upon facts rather than mirages. In other words, “truth in sentencing” is not only more likely to avoid the societal costs of institutionalized deception, but also likely to produce more rational and informed policy-making.