Knowledge And Decisions

Arguments for “individualizing” the punishment to the criminal, rather than generalizing punishment from the crime, presuppose a result rather than specifying a process. Whether or not such a result is desirable, the question must first be faced whether courts can in fact do it. Merely varying sentences is easy, but to do so in a manner related to the actual personalities of each criminal is neither easy nor necessarily even feasible. As noted in Chapter 2, formal institutions have great difficulty acquiring accurate knowledge about individual personalities. Everything in the criminal justice setting provides incentives for concealment and deception on the part of the criminal, his family and friends — i.e., those actually possessed of the fullest and most accurate knowledge. Banks tend to leave the financing of new small businesses to their founders and the founders’ family and friends for similar reasons. Courts are not institutionally constrained from speculating about personality traits, the way banks are constrained by the prospect of financial losses, but the social costs of such speculation can be even greater when courts rely on either mechanical criteria or psychological guesswork to “individualize” sentences. Moreover, so-called “individualized” sentences in practice mean reduced sentences. No psychological findings or other evidence will legally justify life imprisonment or execution for a petty thief, no matter what deadly personality characteristics are uncovered. It is a wholly asymmetrical process, and should be judged for what it is — one more way of reducing or eliminating punishment.

What are the social costs of this asymmetrical process of sentence-reduction? Insofar as sentences are reduced (or eliminated) to match the presumed personality of each offender, they do not convey as clear or as definite a message as deterrence to others. Moreover, even to the individual criminal, they present punishment not as their fellow man’s assessment of the seriousness of their crime, but as a happenstance deriving from the personality or mood of a particular judge, or the criminal’s own performance in impressing or maneuvering with psychiatrists, psychologists, or probation or parole officials. The social costs also include still more delay introduced into the courts, while all sorts of information, “findings,” and “recommendations” are assembled — a process that can go on for months, even in relatively simple cases where all this activity does not change the end result.

As in other cases of attempted “fine tuning” of social decisions, the question in criminal justice is not what decision we should make if we were God, but what decisions we can make effectively, given that we are only human, with all that that implies in terms of limitations of individual knowledge. Juvenile criminal sentencing is particularly subject to “individualizing” tendencies — in some states, it is solely the well being of the individual young criminal that can be legally taken into account in the disposition of his case — and it is perhaps revealing that it is here that the failure of the system is most apparent in especially rapidly escalating crime rates.

In the emotion-laden area of capital punishment, a recent study indicates several murders deterred for every execution.²⁷⁸ This conflicts with an earlier and cruder study, and the reception of the two kinds of studies by legal and social theorists is revealing. The earlier capital punishment study, by Thorsten Sellin, compared states with and without death penalty laws on their books.²⁷⁹ The later study, by Isaac Ehrlich, compared actual executions rather than laws seldom put into effect. Clearly it is the executions rather than the words in law books which constitute capital punishment, and the question of deterrent effects is a question about executions. It is Ehrlich’s study of actual executions that shows a deterrent effect. Yet the earlier and cruder study continues to be cited as proof that capital punishment is ineffective as a deterrent, while the later study is either ignored or subjected to far more critical scrutiny than the earlier.²⁸⁰ It is clear which conclusion is preferred by legal and social theorists, but the policy preferences of “experts” do not become empirical facts by consensual approval or by sheer repetition.