Rating Injustices

Law Prof Doug Berman of Sentencing Law and Policy has a post up today asking readers to rate the following injustices:

1.  The federal sentences for two border patrol agents, Ignacio Ramos and Jose Alonso Compean, who each got more than 10 years' in prison for the shooting of a suspected Mexican drug dealer in Texas (details here).

2.  The state sentence for Genarlow Wilson, who got 10 years' in prison for having consensual oral sex with a fellow teenager (details here).

3.  The possible (but not certain) limited period of extreme pain that a convicted and condemned murderer might feel in the course of an execution.

I'll go with number 2, the sentence with Genarlow Wilson. But, I'd have given another example, one of the many defendants serving life in prison for crack offenses due to the sentencing disparity in powder and crack cocaine penalties.

The U.S. Sentencing Commission is calling for public response (pdf) to various guidelines, including those for crack and powder cocaine offenses.

The Commission identified as a policy priority for the current amendment cycle ending May 1, 2007, the "continuation of its work with the congressional, executive, and judicial branches of the government and other interested parties on cocaine sentencing policy", including updating the Commission's 2002 Report to Congress, Cocaine and Federal Sentencing Policy, which is available on the Commission's website...

In working to address this priority, the Commission currently is updating the information contained in its 2002 Report. As part of this process, the Commission gathered information at a public hearing it held on cocaine sentencing policy on November 14, 2006. At that hearing, the Commission received testimony from the executive and judicial branches of the federal government, State and local agencies, the defense bar, medical and drug treatment experts, academics, and community interest groups.

Witnesses at that hearing expressed a variety of views about the nature and characteristics of cocaine offenses and offenders and suggested a number of proposals for addressing federal cocaine penalties. Testimony of the witnesses, as well as a transcript of the public hearing, can be found on the Commission's website.

The Commission invites comment on any or all of the testimony received at the November 14, 2006, public hearing, including comment on any of the suggestions at that hearing or any other suggestions (such as possible changes in the Drug Quantity Table) for addressing federal cocaine penalties.

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    I'm with you on picking (none / 0) (#1)
    by scribe on Fri Jan 26, 2007 at 12:22:08 PM EST
    #2 as being the most unjust.  Frankly, the #1 guys could have gotten two or three times as long and I wouldn't be disturbed by it (and should have, IMHO).  They were cops who turned criminal.

    This morning in single-digit pre-dawn cold, while going to my car, I got to watch a bunch of cops go to a building, lights and sirens off, to try to make a bust for something or other.  First, they rang the bell at a different unit and then, despairing of waking anyone not in the target unit to let them in, busted in the building's front door.  Needless to say, they'll doubtless balk at paying for the damage to the door and frame, let alone the increased heat bill their kick, crash and enter tactic caused.  They didn't even bother to leave any indication for the building owner that the damage was not the work of some random punk.  An hour or so later, I saw the building owner gawking at the damage with a confused look on his face:  "how did this happen?"

    FWIW, given the way the cops came streaming out in the minute or two after going in, and the way they were poking under every bush and trash can and running around the block shining flashlights, I think they either got the wrong building (which I doubt), or the guy (I assume it was a guy) got away or was never there.

    I recognize serving warrants (assuming they had one) and arresting absconders is a necessary part of living in a society of law, but when the cops cross the line, they should get the answer:   "You're a cop.  You should know better."

    Up with the Bush administration! (none / 0) (#26)
    by LonewackoDotCom on Sat Jan 27, 2007 at 04:43:55 PM EST
    I guess if you have no use for the Border Patrol - as do the far-left, Dem leaders, and the Bush administration - you can cheer #1. Others may wonder about the sealed evidence, why our government spent so much effort finding and giving amnesty to a drug dealer, the very possibly wrong government claim that the dealer wasn't armed, and all the rest.

    And, of course, there's the possibility that this was an attempt to send a message to the BP not that they should do their job better but that they should do their job as the Bush administration wants: hardly at all.


    #2 (none / 0) (#2)
    by Gabriel Malor on Fri Jan 26, 2007 at 01:43:19 PM EST
    #2 is the worst injustice, followed by #1.

    The decision in the Wilson case is a departure from the Supreme Court's emphasis in Lawrence v. Texas on the importance of the liberty interest in consensual sexual conduct. Yes, Lawrence specifically limited its ruling to adult conduct, however, their silence on the issue of underage sexual conduct should not be construed to mean that there is no liberty interest in underage sex.

    The Court failed us by not clarifying the necessary standard of review in the Lawrence case. They did it because they were afraid of the consequences of raising discrimination against gays to mid-tier or strict scrutiny review. That failure to clarify the necessary level of scrutiny in sex-freedom cases has contributed to the Wilson problem.

    It is noteworthy that, like in Lawrence the individuals were engaged in a cross-racial sex act.

    As precedent (none / 0) (#9)
    by glanton on Fri Jan 26, 2007 at 03:17:28 PM EST
    Don't count on Lawrence for much.  It was a truly refreshing move by people in power, but it ticked off the GOP and as a ruling is bound for overturning at the first possible opportunity, given the new composition of Bush's SCOTUS.

    That being said (none / 0) (#10)
    by glanton on Fri Jan 26, 2007 at 03:21:28 PM EST
    Clearly #2 is the greatest injustice of those named.  

    I agree with most everyone here that #1 was a rare case of enforcement officers facing real consequences for abusing their authority.  A good thing, but not something you see very often.  


    I disagree. (none / 0) (#11)
    by Gabriel Malor on Fri Jan 26, 2007 at 03:29:26 PM EST
    I have to disagree with you there, glanton. The five-justice majority in Lawrence is still in place (Kennedy, Souter, Stevens, Ginsburg, Breyer). Furthermore, I doubt very much that Roberts and Alito would sign on to Scalia's freak-out about the "homosexual agenda."

    Gabe (none / 0) (#12)
    by glanton on Fri Jan 26, 2007 at 03:37:41 PM EST
    My bad, you're right about the extant majority.  I guess Stevens and Ginsburg are just so tentative I sometimes forget they're still there.  Will both hang on for the rest of Bush's term?  Doubtful.  And then of course there's at least a 50% chance that Bush's successor will be GOP.  And then the majority swings, on a host of crucial cases.

    Which brings me to where we disagree completely.  I am frankly very surprised you think either Alito or Roberts would uphold Lawrence. Let me guess: you're one of them there libertarians who don't think there's anything to see here. :-0


    Chief Justice Roberts (none / 0) (#13)
    by Gabriel Malor on Fri Jan 26, 2007 at 04:03:59 PM EST
    Well, there is little to draw on with regard to Roberts' position on this except for his Senate testimony.

    Though he did not answer questions that went directly to the Court's decision in Lawrence, he indicated that he believes that a liberty interest in privacy is protected by the due process clause. He also said that the right extends to couples regardless of whether they are married or not. And he strongly emphasized the importance of stare decisis.

    That all paints a pretty good picture for liberty-interest advocates. And it doesn't hurt that he did pro bono work on the Colorado gay rights case, Romer v. Evans.


    Justice Alito (none / 0) (#14)
    by Gabriel Malor on Fri Jan 26, 2007 at 04:09:06 PM EST
    Like CJ Roberts, Alito did not directly address the merits of recent Court cases like Lawrence or Romer. But he did indicate that he believed there was a privacy interest inherent in substantive due process and that it applied regardless of marriage status. Both of these positions indicate that he at the very least can agree with the Lawrence court if the same question arose again.

    Moreover, nothing he's ever done even suggests the type of gay-hatred that Scalia shows.


    In order (none / 0) (#3)
    by HeadScratcher on Fri Jan 26, 2007 at 01:59:59 PM EST
    #2 is the worst by a large margin because the law he was convicted of was never intended for his act. A consentual BJ from a 15 yr old girl to an 18 yr old is hardly worth 10 years...

    #1 wins the silver since it was something that happened during the heat of the moment while on duty.

    And #3 is the least injustice since it still involves the willful breaking of the law with full knowledge of the risk involved.

    2, 3, 1 (none / 0) (#4)
    by roy on Fri Jan 26, 2007 at 02:28:30 PM EST
    1. Sex between 18 and 15 year olds should be illegal, but 10 years is gross overkill.  The guy should get maybe 30 days, plus promise to return the favor when the girl turns 18.

    2. This is a very distant second.  Inflicting pain is a bad thing, but it's nowhere near as severe as actually killing the criminal.  And I think we're supposed to assume that the criminal is in fact guilty and got a fair trial and all that, in which case the death penalty doesn't bother me.

    3. Not an injustice.  Yes, the cops acted in the heat of the moment, but that's why they're not up for attempted murder.  Shooting at somebody 15 times is pretty high up on the evil-o-meter.  And, ironically, all the outrage at the sentences suggests that the sentences will effectively deter other cops from breaking the law in the same way.

    No brainer..... (none / 0) (#5)
    by kdog on Fri Jan 26, 2007 at 02:31:38 PM EST
    I think we'd all agree 2 is the worst by far.

    I'd follow with 3, though I'm not sure that is best described as an injustice, I think inhumane is more apt.  It's an injustice when you execute an innocent man.  Execution in general...just inhumane.

    As for # 1, 10 years for shooting an unarmed man in the back and then trying to cover it up is no injustice at all in my book.

    rated (none / 0) (#6)
    by Deconstructionist on Fri Jan 26, 2007 at 02:35:00 PM EST

      As for 1 and 3. I need more information. I don't know all the facts of the Border Patrol case and might think more or less was warranted depending upon them.

      As for 3, it is far too general. What's the crime? What's the story of case and the conviction? What's the method of exeuction? what's the criminal history of the defendanr? What's the certainty of his guilt?


    2. w/o a doubt. However... (none / 0) (#7)
    by sarcastic unnamed one on Fri Jan 26, 2007 at 02:49:56 PM EST
    ...there's a pretty exhaustive discussion of the case over on the TL Duke Forum.

    Among other things that happened that night, apparently the 5 guys hosting the "party" gang-banged the other girl there, also drunken & stoned, but two years older - 17 years-old.

    The 5 were acquitted of the charges of raping her.

    Also, Wilson was the only one of the 5 to not accept some sort of plea deal from the DA regarding the 15 y/o - as they all were accused of sodomizing a minor (I guess) as she, apparently consensually, orally "did" all 5 of them in a row, per the video tape.

    And, had she consensually "done" them with her privates, he would not have gotten the 10 years, as that would not have been treated as a felony, I believe.

    Also, almost concurrently, GA was modifying their laws such that his offense would not be treated as a felony, unfortunately, I think the "party" took place just before those laws were changed.

    (I may have some of the particulars not exactly right in the above, I'm going from memory, but I think the broad strokes are correct)

    Pretty unsavory behavior all around, not that that means he deserved 10 years by any means, and also not that consensual unsavory behavior is infrequent among teenagers, and I include in that comment my own teenage years...

    the deal (none / 0) (#17)
    by Jen M on Fri Jan 26, 2007 at 06:03:40 PM EST
    was for 5 years

    which was still way too long. Especially considering they will have to leave the state after wards. (remember the story about the new residence laws for registered sex offenders?)


    yes, 5 years is too long (none / 0) (#18)
    by sarcastic unnamed one on Fri Jan 26, 2007 at 06:12:33 PM EST
    Regarding moving out of state, I don't remember that...are you sure about this? A link to the statute or something? It doesn't sound right...

    It amounted to Banishment (none / 0) (#19)
    by Jen M on Fri Jan 26, 2007 at 06:27:55 PM EST

    It was in fact their goal.
    Lawmakers with no soul.
    And I don't mean music.


    Oh yeah, (none / 0) (#8)
    by sarcastic unnamed one on Fri Jan 26, 2007 at 02:50:56 PM EST
    Wilson was 17 - a minor - not 18.

    Another Vote for #2 (none / 0) (#20)
    by Batocchio on Fri Jan 26, 2007 at 07:57:19 PM EST
    #2.  I don't think it's even close.  What's particularly appalling is the "hot potato" aspect of the case that's described.  It's obviously wrong and stupid, so why can't someone in power correct it?  I'm hoping the new law, or whatever remedy is employed, isn't too long in coming.  

    #1 shouldn't even be on this list (none / 0) (#21)
    by cpinva on Sat Jan 27, 2007 at 07:44:20 AM EST
    as scribe noted:

    "You're a cop.  You should know better."

    not even an issue for discussion, given all the facts & circumstances, that have been made public, surrounding this case. they should have gotten a longer term, IMNSHO.

    #2 is the only injustice.

    #3, given that execution is merely state sanctioned murder, doesn't qualify for this discussion. if you accept the validity of the state's position, how it's accomplished, and the level of of pain, if any, suffered, is irrelevant.

    Considering Jeralyn's Suggestion (none / 0) (#22)
    by syinco on Sat Jan 27, 2007 at 09:18:14 AM EST
    A different list, such as one with both #1 and something akin to Jeralyn's suggested inclusion, would have been more interesting, and I think more revealing.  Let the additional scenario be a simple drug possession case that resulted in a lengthy mandatory minimum sentence, accept that vagueness, and call it #4.

    How would we then begin to compare the greater injustice?    

    Perhaps by evaluating injustice as undue punishment, and suggesting that #1 is arguably less worthy of being a crime than #4, though many would argue that #4 should not be a crime either.  But forced to choose, I suspect more would opt for a pass for those committing #1, and probably with a more persuasive argument to support their choice.  

    But if we consider injustice on a different basis, that of excessive punishment, we seem to lose our footing for discussion.  How do we begin to evaluate whether a punishment is appropriate to the crime, and if it's not, how do we assess the (relative) degree of inappropriateness?  

    Are there prescribed goals that punishment must satisfy?  Should we then measure the efficacy of the punishment against these goals?  How?  And if the goals aren't written in law, how do we agree on what should comprise those goals?  Must there even be a goal to punishment, apart from a reflexive response to crime?  How should public sentiment factor into what should arguably be a rational exercise?  

    Glancing at the Sentencing Commission's .pdf regarding proposed changes, it seems absurd to me that they are re-assessing levels and departures and such, and with the appearance of such precision, but at the same time do not even consider whether the model they tweak and tune comes anywhere close to providing a reasonable or effective punishment scheme.  I would much rather see some of the suggested debate above than fine-tuning of what may be a fundamentally flawed system.

    Theories of Punishment (none / 0) (#23)
    by Gabriel Malor on Sat Jan 27, 2007 at 11:03:15 AM EST
    syinco, I think it is an exercise in futility to try and find just one theory of punishment which informs our public policy. At least four theories of punishment have shaped our punishment regime.

    First, probably the most common theory of punishment rests at its most basic level on the idea that a justice system should be fair and proportional. It is this type of system of punishment that a person invokes when they say that some criminals deserve to be punished. This is similar, though not identical, to the oft-quoted "eye-for-an-eye" contention. These notions are commonly referred to as the "just deserts" or "retributivist" theory of punishment. It frequently arises in arguments about capital punishment.

    Second, the next-most common theory of punishment is utilitarian in character. This theory makes social utility, usually thought of as  crime prevention, rehabilitation, and deterrence, the necessary and sufficient condition for punishment. Under this model, an act of punishment is "good" if it provides more social utility than the alternatives. One noteworthy feature of utilitarian punishment is that it has no regard for fairness or proportionality, only social utility. (Though, this won't stop utilitarians from arguing that social utility is only achieved through fairness and proportionality, a contention that must be evaluated on its own separate merits.)

    Third, on the rise for the last twenty or so years is the notion of rehabilitative punishment. Under this theory of punishment, the act of punishment is undertaken as a corrective measure. This theory rests on the notion that all or most criminals are capable of correction and reintegration with society.

    Fourth, a younger theory than retributivism and utilitarianism is premised on the idea that punishment is simply the necessary expression of societal condemnation of a behavior. The expressionist theory of punishment is more "democratic" in the sense that, though it has no regard for fairness, proportionality, or rehabilitation, punishments are set based on the priority of revulsion in the public mind.

    syinco, all four of these theories (and probably more) have shaped our criminal punishment system because they are all widely held. In fact, though they are fundamentally irreconcilable, most people move among them as easily as they move through the rooms in their house, picking and choosing as necessary to make their point.

    For example, Section 1.02 of the Texas Penal Code sets the goal of the Texas criminal justice system as "[insuring] the public safety" by means of deterrence, rehabilitation of convicted offenders, and "such punishment as may be necessary to prevent likely recurrence of criminal behavior."  Setting aside the issue of deterrence as indeterminate at best (and, in fact, nonexistant at worst), the practice of executing criminals ignores and exceeds these stated goals. By the act of seeking execution or life imprisonment, Texas is acknowledging that rehabilitation is not possible or not desirable for these offenders. Texas goes further than the listed goal of recidivism prevention when it not only takes an offender out of society permanently - as in the case of life imprisonment without the possibility of parole- but also executes the offender.


    Gabe, (none / 0) (#25)
    by syinco on Sat Jan 27, 2007 at 03:24:03 PM EST
    I am familiar with these theories of punishment, more or less as you described, and somewhat familiar with the debate that has at times steered us towards one or another of these theories at different times.  Another theory/approach of recent interest to me, which may be an extension of one or more of these theories, is restorative justice, but that's more of an aside for now.

    I asked the questions as I did in part as an expression of frustration and in part to suggest that we might yet strive to identify common basic principles that can guide us in developing a more coherent system of punishment than we have today.  

    Perhaps finding a single or unified theory of punishment is indeed an exercise in futility.  Does that mean that we can't identify, agree on, explore, and refine any basic principles, such as ones that might inform the question originally at hand here, even if they must exist in tension with each other? Alternatively, are there questions we can ask that might lead to "improvements"? (e.g. my question on the role of public sentiment, or asking what role compassion should play in punishment, or asking about the methods and validity of risk assessment, and I could go on ...)

    It's the apparent inability to even frame a discussion on the goals or efficacy of our current systems of punishment that makes it absurd to me that we are focusing significant efforts on fine-tuning these same systems (or doing other things like posing questions asking about relative injustices in these systems).

    It's also a sense that we can do, even must do, "better" than we are doing today that encourages these questions.  I don't have a solution at hand, but I do think it's a meaningful discussion, one that could make for improvements in our punitive approach, one that should be revisited periodically as our scientific and societal understandings change over time.  


    More on 1.02 (none / 0) (#27)
    by syinco on Sat Jan 27, 2007 at 04:56:35 PM EST
    I did look at Section 1.02 of the Texas Penal Code, and it does at least give us that framework, that basis for discussion.  Unfortunately, as you suggest, it seems largely ignored in many cases and thus often practically irrelevant.  

    Even were it properly brought to bear - and I think the results of doing so would be quite interesting, especially for mandatory minimum schemes for victimless crimes - there are of course still worthwhile questions about 1.02 as an appropriate basis for determining punishment.  

    In what cases is deterrence (significantly) effective?  How do we really assess whether a given punishment is proportionate to a crime?  How do we identify "oppressive" punishment in order to avoid it? (proportionality and avoiding oppressive punishment also being goals of 1.02)  Renewed consideration of these questions might lead us to reformulate this guide to punishment.  

    To restate, those are the sorts of questions that should be asked, rather than whether this or that warrants this or that level of departure in the current sentencing model.  That said, I am certainly not opposed to some improvements to the sentencing guidelines, particularly those that would lower penalties for drug crimes.  It's far better than doing nothing.


    Another related theory.. (none / 0) (#24)
    by Deconstructionist on Sat Jan 27, 2007 at 11:17:54 AM EST
     rests on the notion that it is necessary for society acting through government to punish offenders against societal norms in order to preclude rise of an attitude that is necessary for the wronged (or even just the angered) to seek their own justice. Fear of legitimizing vigiliantism also underlies the construct of institutionalized justice.

    I think that has a lot to do with it. (none / 0) (#28)
    by Avedon on Sun Jan 28, 2007 at 03:38:01 PM EST
    Jailing (and killing) people doesn't actually improve society, but I think the idea of rule of law would fall apart if we didn't punish people for committing crimes.  People want revenge or they want to satisfy a "sense of justice", especially in the heat of the aftermath of a crime.  Saying that society might benefit more if criminals were treated some other, more humane way doesn't cut any ice with most people, and the thought that a person who had offended against you would not be punished might drive some people to take their own vengeance.

    Without that, there'd be a fair argument that most incarcerations (and executions) are a pointless waste of money.  But you'd never get it to fly.


    i wondered when someone was going (none / 0) (#29)
    by cpinva on Sun Jan 28, 2007 at 05:45:48 PM EST
    to point out the most basic reason of all for punishing wrongdoers: revenge.

    though cloaked in high sounding phrases, revenge is the single most basic purpose for punishing criminals, everything else follows from that.

    gabe, you've cited a (christian) misinterpretation of old testament lore: the "eye for an eye" quote is often misused, to support even more retributive punishment, by people who've not a clue what it actually means.

    it was a warning to the jews, not a suggestion. an "eye for an eye" approach to justice would create chaos, resulting ultimately in the destruction of jewish society.

    the old testament is the jewish, not christian book. if you don't understand something in it, ask a rabbi, they'll be happy to help you out. don't waste your time with a christian minister or priest, it isn't their book.

    syinco, your basic premise is flawed: you assume #1 to be an injustice, it isn't. everything stemming from that premise becomes moot as a result.

    retributivism is often revenge (none / 0) (#30)
    by Gabriel Malor on Sun Jan 28, 2007 at 06:39:58 PM EST

    Revenge punishment fits squarely within the retributivist theory of punishment as I lay it out above. By taking vengeful action against the criminal, the punisher (either society or an individual) is giving the criminal what he deserves, and his deserts are defined solely in relation to his crime and victim. Revenge punishment may not be objectively fair (if there is such a thing) but in the eyes of the revenge-taker (again, either society or an individual), it is perfectly appropriate action (i.e. it is subjectively fair).

    Also, I am well aware of the origins and use of the phrase "eye for an eye." You will note that I referred to it as a "contention" and, with a desire to objectively present the theories of punishment, did not go further in criticising the notion. Suffice it to say, I am not a retributivist.

    With regard to claiming ownership of the Old Testament, it is ridiculous to declare that groups, by nature of their extant identities alone, have a better grasp of its meaning. No persons now living were present during the events of the Old Testament, or even for its dissemination as oral history, or even for its collection into written history, or even for any of its innumerable translation. All are working from the same pieces of history and, as such, as groups none have an advantage based on blood or religius observance or whatnot. Now, if you're arguing that individuals have misunderstood or made mistakes based on lack of scholarship, that's indisputable. But, that's a reason to single out individuals or individual groups who have adopted the interpretations of those individuals rather than a whole religion (while simultaneously elevating another religion based on nothing other than identity).

    Your argument is analogous to the suggestion that a Hindu professor of religion would have a better grasp of the Baghavad Gita than a Muslim professor of religion merely because the text is part of the Hindu professor's religious beliefs. That's nonsense, a fallacious appeal to authority, blood authority, in this case. Their grasp of the Baghavad Gita will depend on their scholarship and intelligence, not their racial or ethnic or religious identities.

    Saying "don't waste your time with a christian minister or priest, it isn't their book", is akin to saying "don't waste your time with an American translator of the Iliad, it isn't their book." As if the American cannot read Greek or, alternatively, as if the Greek translator has a special ability to read and understand the Iliad by nature of his Greek identity.

    Finally, I was very much provoked by syinco's distinction between undue punishment and excessive punishment (though it is almost entirely retributivist in the sense that proportionality is less important for utilitarians and rehabilitationists, and of no importance at all for expressionists). Of the three (now four) options, deciding which crimes are relatively more or less criminal is necessary before we (as a retributivist society) can determine what punishments are appropriate, i.e. proportional to the crime. Once we determine appropriate punishments, we can decide if these specific examples are unjust, i.e. unfair.


    my mistake, cpinva (none / 0) (#31)
    by syinco on Sun Jan 28, 2007 at 07:17:41 PM EST
    I meant to compare the Wilson case, which I mistakenly labeled #1.  I should have been referencing #2 and #4.  

    FWIW, based on what I know so far, I don't think #1 is an injustice either.  I will caveat though by adding that in general I believe we punish more than is necessary; could not essentially the same message be sent, the same effect be achieved, if we sentenced them to half the time that we did?