The functions of sentencing and sentencing reform.

AuthorTonry, Michael H.

INTRODUCTION I. THE FUNCTIONS OF SENTENCING II. OVERT FUNCTIONS A. Norms B. Distribution C. Prevention D. Management E. Communication III. LATENT FUNCTIONS A. Self-Interest B. Ideological Expression C. Partisan Advantage CONCLUSION: RECONCILING OVERT AND LATENT FUNCTIONS INTRODUCTION

Sentencing reform is in the eye of the beholder. When most federal district court judges, assistant U.S. Attorneys, and sentencing policy analysts recently would have said that the Federal Guidelines should be made less prescriptive, less severe, and less rigid, Congressman Tom Feeney introduced and won passage of a bill meant to make the Guidelines more prescriptive, more severe, and more rigid. (1)

"Sentencing reform" means very different things depending on whether the proponent wants sentencing made softer, tougher, fairer, more consistent, more efficient, more economical, more transparent, or more effective at preventing crime. (2) Whether a proposed change counts in the eyes of others as a reform depends on what the proponent wants to accomplish and whether others think that a good thing.

The same observations apply to sentencing. Whether a sentencing system can be said to work well depends on its purposes, what it is supposed to do, and how well it does that. Generally, when theorists and lawyers refer to the "purposes" of punishment, they have normative rationales in mind. At a normative level, some people think the primary purpose of sentencing is to impose deserved punishments proportioned to offenders' culpability, some that sentences should aim optimally to prevent crime, and most, probably, that sentencing should try to do both, to take account of crime-prevention goals while to a significant extent apportioning punishment to blameworthiness. (3)

Examination of normative purposes, however, is only the beginning of analysis of the effectiveness of a sentencing system. Practitioners and policymakers want sentencing to accomplish other things as well. These include efficiency, cost-effectiveness, public safety, and public confidence. They also sometimes want sentencing systems, and legislation affecting them, to advance personal, ideological, and partisan interests.

My subject is the functions of sentencing and sentencing reform. (4) I treat functions instrumentally, as if sentencing systems and policies are machines, and we need to figure out what we want them to do and whether particular models do whatever it is sufficiently well. Whether a machine can be said to work well depends on what it is supposed to do, and typical occupants of various institutional roles differ about that.

A distinction needs to be made between overt functions, the things we want a machine to do directly, and latent functions, collateral things we want from it as byproducts. Here's a homely example. The principal overt function of an annual meeting of a scientific society is the advance of knowledge through presentation of papers and exchange of ideas. The latent functions include expanding networks of professional contacts, looking for new jobs, seeing old friends, visiting a new or favorite city, having a few days paid or tax-deductible holiday, and seeking social and sexual adventures.

Latent functions are more and less legitimate. Expanding professional networks may facilitate learning of new developments and participating in new projects, and thus may relate closely to the advance of knowledge. Visiting a new city and pursuing sexual conquests under propitious circumstances do not.

A good test of the legitimacy of latent functions, in this example, is whether they could be invoked with a straight face as a reason why an employer should underwrite an employee's cost of attendance. The overt functions of presenting papers and participating in organized scientific exchanges pass the straight-face test. So probably, in most people's eyes, do the latent functions of expanding professional networks and looking for a new job (if the employer is kindly disposed). Seeing a new city, having a paid vacation, or pursuing sexual conquests are seldom likely to pass the test.

In the real world, however, people seldom mention illegitimate latent functions when applying for funding to attend conferences. They cite overt functions and plausibly legitimate latent functions, whether or not those are their real motivations. Sometimes motivations are mixed--people want both to participate in scientific interchanges and to see new cities--and sometimes they are entirely cynical. Whatever they may have said to get their expenses covered, some people may have no interest in the conference itself. The invocation of science is disingenuous; new adventures and conquests are what is really wanted.

People setting sentencing policy or imposing sentences in individual cases also have diverse motives and pursue diverse objectives, and these may be more or less legitimate. The primary overt functions of sentencing are imposition of deserved punishments and prevention of crime. Judges may differ on how best to pursue those objectives, but they are palpably legitimate. In a particular case, a judge up for vigorously contested reelection might impose a much harsher sentence than he otherwise would, or than in his own mind can be justified, as a way to get favorable publicity. The latent goal of sentencing in that case would be the judge's reelection, and few would regard it as a legitimate reason to punish an offender especially severely only because he happened to be sentenced in too close proximity to an impending election.

If Congress seriously considers proposals for comprehensive reconstitution of the federal sentencing system, (5) those involved need to keep a close and unblinking eye on the functions the new system is meant to serve. Reasonable judges setting sentences in individual cases can differ on how best to pursue overt functional goals. Reasonable policymakers likewise can differ over what overt functions should be specified for the sentencing system and how best they might be carried out.

Some latent functions, however, such as pursuit of personal self-interest, ideological purity, or partisan political advantage are as illegitimate in policymaking about sentencing or in setting sentences in individual cases as are pursuit of paid holidays and erotic adventures in seeking funding for conference attendance. The contested and controversial history of the U.S. Sentencing Commission (6) is a byproduct of failures to be clear about the Federal Guidelines' and the Commission's functions, and of policymakers' pursuit of latent goals only incidentally related to the overt goals originally envisioned for the Guidelines.

Nearly a decade passed between Senator Edward Kennedy's introduction of Senate Bill 2699 (7) with bipartisan support from eight cosponsors including Senators John McClellan (Arkansas) and Roman Hruska (Nebraska), influential conservative senators with extensive involvement in crime-control legislation, and the eventual passage of the Sentencing Reform Act of 1984. (8) Senate Bill 2699 set out the basic and never-much-changed framework for the U.S. Sentencing Commission. The bill was based on a proposal by federal district judge Marvin Frankel, (9) as fleshed out in a series of seminars at Yale Law School. (10) The primary overt functions Judge Frankel had in mind for guidelines were achievement of greater consistency and procedural fairness, and reduction of sentencing disparities. The functions of the Sentencing Commission were to be development of specialized expertise and partial insulation of policymaking from direct and short-term political influence. Frankel believed that an independent administrative agency would be better able than Congress to develop and oversee implementation of sound sentencing policies.

None of the Frankel proposal, the Yale seminar elaboration, or Senate Bill 2699 was substantially focused on crime prevention, harsher punishments, or sentencing policy as a means to achieve personal or partisan advantage or promote ideological agendas. During the early 1970s, when the proposals were developed, crime and punishment were not galvanizing political issues. (11) Frankel's and the succeeding proposals shared the assumption that sentencing and punishment were nonpartisan issues best addressed by technocrats and professionals.

By the mid-1980s, few powerful Washington policymakers any longer shared that view. The Democrats' control of the Senate in the 1970s was displaced by Republican control in the 1980s, and Strom Thurmond succeeded Senator Kennedy as Chairman of the Senate Judiciary Committee. "Law and order" had become a galvanizing political issue, one of the wedge issues that Republicans used to undermine Democrats' support among white Southern and working-class voters. (12) The United States was a decade into its continuous, historically unprecedented quadrupling of the imprisonment rate. Legislatures in every state were toughening their sentencing laws in pursuit of both crime prevention and severer punishment. (13)

When the U.S. Sentencing Commission began its work, Frankel's aims for the Commission (political insulation and specialist expertise) and for the Guidelines (procedural fairness and reduced disparities) were no longer in vogue. Instead, the Sentencing Reform Act contained numerous provisions calling for harsher penalties, (14) and the Commission made no serious effort to insulate itself from political influence. In enacting the Anti-Drug Abuse Act of 1986, creating a slew of mandatory minimum sentences for drug crimes, the Congress undermined the Commission's autonomy and authority even before the initial Guidelines were promulgated. (15)

The Commission was caught in a time warp. Premised on one set of views about the goals of sentencing reform and the Sentencing Commission, the Commission was created and devised the Guidelines at a time when very different views influenced policymakers...

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