Control Over Sentencing Policy

Control over sentencing policy creates a tension between government and the judiciary, as politicians look for easy popularity.

A government that wants to be seen as being "tough on crime" wants to impose stiff mandatory sentences for criminals, which can create two problems:

·      Sentences for some crimes become disproportionate compared to others.

·      Some people are unnecessarily sent to prison, most notably in America.  An article in Time, for example, argued that 39% of Prisoners Should Not Be in Prison.  There are effective alternatives, as described in the next section (5.2.7). 

California’s “Three Strikes and You’re Out” law is a well-known example of political interference in sentencing.  A Stanford Law Society article, Three Strikes Basics, noted how the policy had backfired, lacking proportionality:

“.. the sentencing scheme was intended to “keep murderers, rapists, and child molesters behind bars, where they belong.” However, today, more than half of inmates sentenced under the law are serving sentences for nonviolent crimes.

.. [offenders] have been given life sentences for offenses including stealing one dollar in loose change from a parked car, possessing less than a gram of narcotics, and attempting to break into a soup kitchen.

.. the law disproportionately affects minority populations. Over 45 percent of inmates serving life sentences under the Three Strikes law are African American. The Three Strikes law is also applied disproportionately against mentally ill and physically disabled defendants. California’s State Auditor estimates that the Three Strikes law adds over $19 billion to the state’s prison budget. Criminologists agree that life sentences for non-violent repeat offenders does nothing to improve public safety.”

It is hard to avoid drawing the conclusion that politicians' need for short-term popularity makes them unsuited to having control over sentencing policy.  Careful analysis is more appropriate.  Judges can be respected, and be accepted without being popular, if they are able to explain their decisions.  And they can set sentences that are appropriate to individual cases, taking all the circumstances into account.



(This is an archive of a page intended to form part of Edition 4 of the Patterns of Power series of books.  The latest versions are at book contents).