Constitutionally tailoring punishment.

• Author: Bierschbach, Richard A.
• Position: II. The Procedural Justice of Sentencing C. The Virtues of Multiple Viewpoints through Conclusion, with footnotes, p. 426-452

3. The Virtues of Multiple Viewpoints

   Legal scholars often adopt a monistic worldview. Retributivists may seek exclusively to implement a particular Kantian or other deontological approach to punishment, while law-and-economics scholars may focus on the monetizable costs and benefits of incapacitation and deterrence. (154) In Isaiah Berlin's terminology, both kinds of scholars are hedgehogs, drawn to a simple, theoretically pure, unified ideal of substantive criminal justice. (155) That approach might seem to go hand in hand with a simplified criminal procedure, giving all power to an idealized legislature, an expert judge, or a prosecutor to neutrally weigh and apply that pure theory of justice. (156)

   But, as the Apprendi and Graham lines of cases implicitly recognize, real-world criminal justice needs both substantive and procedural pluralism. We should be foxes, not hedgehogs. Although retributive blame is at the core of punishment decisions, many actors must weigh a variety of other considerations as well. Thus, as this Section explains, Apprendi and Graham were right to nudge the constitutional regulation of sentencing in a structural and process-oriented direction. The core of our normative account is the need for institutional collaboration to specify morally appropriate punishments, both across and within individual cases. Such a system calls for both substantive and procedural pluralism and the give-and-take between actors and perspectives that comes with it. (157)

   1. Substantive Pluralism

      Our democracy is pluralistic, and our system of criminal justice pursues a wide array of competing values and objectives. As Henry Hart expressed it in his classic, The Aims of the Criminal Law, because none of those values and objectives wholly exclude the others, society's criminal law choices demand "multivalued rather than ... single-valued thinking." (158) Multivalued approaches are often messy, and no philosopher or economist will ever be satisfied with the resulting hash. (159) But as a matter of political theory, a process that aggregates and reconciles the competing values is more democratically legitimate and responsive than one left entirely to a single perspective. (160)

      Criminal justice, for instance, is simultaneously forward- and backward-looking. Many law-and-economics scholars focus on criminal law's ex ante effect of making the costs of committing a crime exceed the benefits for an individual, which thus deters and reduces the costs of crime for society. (161) That perspective calls for ensuring that police catch suspects; that prosecutors and juries apply clear, simple "decision rules"; and that judges mete out predictable2 punishments. (162) Some advocates of equality have likewise favored predictable ex ante rules that minimize official discretion and the possibility of discrimination, arbitrariness, or unequal outcomes. (163)

      But, as Graham and Miller make clear, blanket rules that look clear and simple ex ante can be unjust ex post (that is, at the retail level of deciding individual cases). Many retributivists stress the particulars of crimes and criminals in ways that resist easy codification. (164) Advocates of incapacitation, rehabilitation, and reform may want to focus on a particular defendant, looking at the particular danger he poses, his need for treatment, and his remorse, repentance, and action to turn his life around. (165) And fans of individualized justice stress that across-the-board sentencing rules promote formal equality at the expense of substantive inequality, treating unlike cases alike. Our justice system needs both perspectives, balancing the ex ante and ex post visions of the law. That means announcing fair conduct rules and applying them even-handedly to give notice and predictability, yet leaving room in applying decision rules for discretion to weigh and reflect particulars that cannot be codified.

      More generally, there is great disagreement about how to weigh and apply the varying purposes of punishment. Experts vary widely in the extent to which they would direct criminal punishment toward serving public safety, just deserts, mercy, and other goals. (166) Scholars agree somewhat on negative retributivism--that defendants should be punished no more than they deserve--but much less on positive retributivism--that they should ordinarily be punished as much as they deserve. (167) Even retributivists vary widely among themselves on the extent to which blame correlates with wrongful intent, harm, and other criteria. (168)

      Laymen agree somewhat more. Paul Robinson and his coauthors show empirically that ordinary citizens ground their punishment intuitions primarily in retribution. (169) But even so, citizens leave some room for other principles, such as incapacitation, to temper the sentences they would impose. (170) They also agree much less on how to translate their agreed-upon ordinal rankings into absolute quantities of punishment. (171) And there is little agreement on how to reconcile lay and expert perspectives.

      Given this range of constituencies and viewpoints, criminal justice cannot afford to be theoretically pure, sacrificing most other goals on a single altar. As the Court's cases acknowledge, widely shared retributive intuitions belong at the core of our criminal justice system, founded as it is on democratic legitimacy. Even so, the law must simultaneously pursue deterrence, incapacitation, reform, equality, mercy, consistency across cases, and a host of other values that matter to both the public and professionals. It must protect the public while taking individual defendants and victims seriously. It must determine how severely to punish robbery in relation to other crimes, yet it cannot simply stereotype a defendant as a typical robber. It must individualize: that means looking at a robber's own blameworthiness and dangerousness, the harm he has done to a victim, his efforts to make amends and apologize, and so on. Various actors can strive to weigh and apply these purposes to individual cases fairly and justly, but there is no abstract metric for fitting these values together. Retribution, for example, takes shape in the crucible of these deliberations, case by case. Sentencing thus becomes a conversation involving different institutional actors, all of them bringing their own judgments to bear on how best to impose retribution, promote public safety, safeguard equality, and the like. (172)

   2. Procedural Pluralism

      The eclectic hash of values and the institutional competencies of the different actors involved in sentencing decisions demand a pluralistic procedural system. (173) Procedurally, multiple actors can collaborate on designing, running, and improving not only sentencing but also criminal justice in general. For that to happen, the system must be not static but dynamic. That means giving multiple actors the flexibility to experiment, collect feedback, learn from their mistakes, and make changes. Actors and institutions need to be able to cooperate on new projects, such as the structured-sentencing systems that have evolved in recent decades. Criminal procedure should encourage and channel such cooperation while remaining sensitive to the abilities and limitations of the actors involved and the on-the-ground realities of their interactions.

      Unfortunately, many of the Court's recent criminal justice interventions have fallen short of that mark, in part because the individual rights frameworks they employ have proven to be blunt tools for institutional design. One example is how the Apprendi line of cases has at least partly damaged sentencing reform. Before Apprendi, structured sentencing had evolved into a fruitful collaboration of multiple actors in various states seeking to combat the problems of sentencing inequality and arbitrariness. (174) Actors sought to blend the benefits of wholesale and retail decisionmaking, expertise, and popular input to create systems more predictable than indeterminate sentencing systems yet less Procrustean than mandatory statutory penalties. (175) Many of these experiments were successful, such as Minnesota's, Washington's, and North Carolina's use of resource-impact statements to help their commissions craft presumptive guidelines intended to "distribut[e] punishment under conditions of scarcity." (176) As Justice Kennedy put it in his Blakely dissent, "This recurring dialogue ... [is] an essential source for the elaboration and the evolution of the law." (177) Legislatures, judges, probation officers, and others need to cooperate continually to improve sentencing. (178)

      But Apprendi and Blakely disrupted, if not upended, many of these experiments by rigidly insisting on jury fact-finding, even though in practice plea bargaining has largely displaced juries today. (179) The Apprendi Court's formalism blinded it to how its jury-driven check on sentencing power could fail when implemented in a world of plea bargaining. The result has been in many ways the worst of all worlds. In reality, the Apprendi/Blakely line of cases further skewed the balance of power toward prosecutors and away from judges based on "a faintly disguised distrust of judges," leaving juries' abilities to affect sentences largely unchanged. (180)

      Different actors have differing viewpoints and strengths. Legislatures have democratic legitimacy and broad perspectives and constituencies. Judges and probation and parole officers have neutral perspectives, expertise, and firsthand experience. Prosecutors are perhaps most closely acquainted with the details of a wide variety of cases. Scholars and public policy experts apply expertise, detachment, and synoptic perspectives. Juries bring fresh, democratic perspectives to bear in the context of particular cases in all their complexity. Some of these actors look at crime ex ante and in the abstract, as legislatures and (very often) scholars do. Many others--prosecutors, sentencing judges...