The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.

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Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was CompStat — the NYPD’s use of statistical analysis to focus police presence in places where it was needed most — with significant results on the occurrence of crime in those “hot spots.” The NYPD also began aggressively stopping and frisking people who fit the profile — not a racial profile, as everyone where it was happening were of the same race, but instead a “social” profile of “the thousand small clues that policemen recognized already.” Poor communities had to put up with more police intrusion, but they benefited from “a disproportionate gain in crime reduced.” (And though the NYPD uses stop-and-frisks of low-level offenders to identify them in the system in case they commit a real crime later, the other police forces around the country use it to actually lock up marijuana possessors — an offense that’s been decriminalized in New York since forever, but that still gets you jail everywhere else, it seems.) The result in New York City has been criminals being forced to stop committing crimes brazenly in public — many have either taken their activities indoors (and thus ended much need for violent turf wars) or stopped altogether.

Preventing criminals from doing their thing in place A did not lead others to do it in place B, but rather to nobody doing it at all. People stopped getting used to crime happening, stopped seeing people they knew committing crimes, and THAT was the biggest factor of all.

So what really happened was a cultural shift. Crime stopped being so much “something everyone’s doing,” and so much less likely to be something an individual would consider. Conservatives don’t like this, because it means it’s pointless to get tough on criminals. Liberals don’t like this, because it means it’s pointless to be nice to criminals.

So back to prison. If it doesn’t rehabilitate anyone, and it has hardly any deterrent effect whatsoever, then nobody should be in prison for a nonviolent crime. Locking up marijuana dealers and Ponzi schemers is pointless. They’d be just as deterred by the threat of lost reputation and assets, and having to do community service as their new full-time job — and if that won’t deter them then prison won’t either. Instead, prison should be reserved for that one person in a thousand who is a violent threat, or who has committed a truly awful crime.

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 It’s a lovely bit of writing, and our TL;DR précis doesn’t do it justice. Longtime readers of The Criminal Lawyer will note some common ideas, so it’s no surprise that we think so highly of it.

There’s a lot of scholarship going on right now about what’s wrong (and what’s right) with the American criminal justice system. Gopnik does a good job of summarizing what’s being published out there right now, and putting his own spin on it. Of course there are things we’d say differently, things we disagree with, points we think unrealistic. We could add plenty of things like how poor minority communities in the late ’90s actually teamed up with law enforcement, voluntarily and expressly waiving some of their Fourth Amendment rights to enable the cops to catch the drug dealers who were destroying their neighborhoods. We could argue that the whole “Northern/Southern” thing is a load of hogwash on both sides. We could take issue with the characterization of what conservatives actually believe. Still, we’re here not to bury Gopnik, but to praise him. This one’s not about what we think, for a change.

So give it a read. You won’t regret it.

There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:

Law is a quantitative variable. It increases and decreases, and one setting has more than another. It is possible to measure the quantity of law in many ways. A complaint to a legal official, for example, is more law than no complaint, whether it is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. So is the recognition of a complaint, whether this is simply an official record, an investigation, or a preliminary hearing of some kind. In criminal matters, an arrest is more law than no arrest, and so is a search or an interrogation. An indictment is more law than none, as is a prosecution, and a serious charge is more than a minor charge. Any initiation, invocation, or application of law increases its quantity, even when someone brings law against himself, as in a voluntary surrender, confession, or plea of guilty. Detention before trial is more law than release, a bail bond more than none, and a higher bail bond more than one that is lower. A trial or other hearing is itself an increase of law, and some outcomes are more law than others: A decision in behalf of the plaintiff is more law than a decision in behalf of the defendant, and conviction is more than acquittal. The more compensation awarded, the more law. And the same applies to the severity of punishment as defined in each setting: the greater a fine, the longer the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….

And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.

It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.

It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.

But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.

This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.

First of all, Law. Generally speaking, law is the rules by which a society lives. If life were a board game, law would be the sheet of instructions. In circumstance A, you can do either B or C, but you’re not allowed to do D unless E. But that’s not exactly accurate. There are plenty of rules by which we live that do not count as law. Politeness, morality, custom, tradition — there are tons of rules that apply to us that, though they may perhaps even be more important or powerful than law, are not law. Law is different. It’s that subset of societal rules that are imposed by an authority, fixed, only changeable by official act of that authority, applicable to everyone unless their own exceptions say otherwise, and perhaps most critically they are enforceable by that authority. The nature of the authority itself doesn’t really matter — it could be religious or political, dictatorial or democratic. Neither does the source of the law matter — it could be imposed by a supernatural being and thus unchallengable by mere humans, it could be crafted by delegated experts or judges or tyrants, it could be legislated in and out of existence by popular vote. What matters is that there is some authority, that the authority defines particular rules for everyone to follow, and that the rules are enforced by that authority.

There are different kinds of law. Some law is statutory, created by legislators or rulers with legislative authority. When most people think of laws, they’re thinking of statutes. Some law is regulatory, created not by a legislative authority but by a governmental agency or ministry. Regulations are rules for dealing with that agency or ministry, or for otherwise statutory subjects that have been delegated to the agency’s rulemakers. Regulations typically affect people such as those receiving government funds or whose actions have significant effect on the general population. A third type of law, common law, is created by judicial decisions that try to clarify what the enforceable rules actually mean, including customs that are so strong and important as to merit enforcement. Finally, constitutions are the laws of how governments are to exist and operate, and what their general authority is and is not. (Some countries’ constitutions are more akin to legislation, but that just means they’re using the word wrong.) These kinds of law exist at almost every level of society, from local community rules to international law.

The law may have more or less effect on a given society, depending on how much it adheres to the rule of law. A society that gives greater precedence to familial, tribal or commercial ties than it gives to the law is going to behave differently than one where the law is expected to apply to everyone regardless. Feuding behavior is better understood in a context of the rule of law (or more particularly, its absence) than a sociologist’s context of simultaneous social distance and closeness. Ditto for criminal consequences, civil lawsuits and commercial transactions. A “hostile takeover” has a much different meaning on Wall Street than it does in a society where one’s contracts and property rights are only enforceable to the extent you’re bigger and stronger and better-armed and better-connected than your competitors. Apart from the rule of law, different societies vary in their acknowledgement of particular human rights, property rights, and even how enforceable law is seen to be. And some laws are more of an idealized vision of how a society sees itself, than an accurate codification of what is really acceptable. So law itself is going to have different weights and values in different societies.

Governmental intrusion is another concept that’s important to understand. It’s not the same thing as law. It is when an authority interferes with a person or another authority. When the police frisk you or eavesdrop on you or arrest you or incarcerate you, that is not the creation of more law but a governmental intrusion that is either permitted by existing law or not. When the federal government takes over a state function, supersedes a local prosecution, or dictates a county’s educational policy on pain of a funding cut, that is not the creation of more law but a governmental intrusion on another government that is either permitted by existing law or not. Governmental intrusions are a critical variable in studies of human conflicts and interaction, and they must be understood for what they are. They are not law, but acts subject to the law.

Governmental enforcement is another important concept. Enforcement is a big part of what makes law Law, but it is not law. When a plaintiff wins a case, the government now empowers him to collect his compensation from the defendant, using the state’s courts and sheriffs to do so if necessary. That does not create more law, but more authority for enforcement. When two parties enter into a binding contract, as opposed to a less-binding agreement, there is not more law but instead authority for the government to enforce the agreement. When a defendant is convicted of a crime, that does not create more law but rather authority to enforce the law by imposing punishment.

Punishment is also different from law. Punishment is a severe form of governmental intrusion depriving a citizen or subject of life, liberty or property, or inflicting pain or distress, as a consequence for violating certain laws. Not just any laws, but those laws deemed so necessary for public safety and security and decency that violation requires just such extreme measures — either to dissuade that person or others from doing the same, to remove the threat from society, to otherwise make the criminal less likely to reoffend, or to satisfy a visceral desire for vengeance. Imposing more punishment does not create more law, but is instead a function of the application of existing law to individual circumstances.

It is important to understand why government intrusion, enforcement and punishment vary from circumstance to circumstance. But to do so, one must understand what they are. Lumping them together is not useful, and further lumping them in with the concept of law is epistemologically counterproductive.

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Separating these and other important concepts would, however, be very useful to the practitioner of Pure Sociology. Social distance, for example, plays an enormous role in the creation of law, its applicability or exception, and its outcomes. But it plays out in different ways.

In more traditional, localized and homogenous societies, law and the rules of conflict resolution are more likely to come from custom, moral authority, or religious belief. They aren’t likely to be codified in any particular way. Kinship and personal relations are much more important in how the rules are applied, or whether they apply at all.

But as societies grow larger, more structured, more heterogenous and complex — with more interactions, kinds of conflict, and opportunities for conflict — there is a greater need for fixed general laws, explicit formal rules, and a rule of law making them applicable to everyone equally. As society becomes more complex, it creates a greater demand for law. As human interactions become more likely to involve people unconnected by kinship or loyalty, the demand grows for clear systems of conflict resolution and enforcement.

Interactions between individuals within a tribal society are going to have different variables and outcomes than those of a large post-industrial society. To accurately predict what people and institutions will do, these differences must be understood. The same goes for international relations — the citizens of a post-industrial nation are going to perceive a conflict differently than members of a more traditional society, and they are going to perceive different potential solutions, dramatically affecting what the outcome will be. To understand an internal genocide, borderless terrorism or a full-on war, one must understand how the particular peoples perceive the rules by which they must live.

It can be hard to do, of course, because people generally don’t understand their own rules very clearly. They may have a sense of what’s right and wrong, what’s done and not done, but they may not be able to explain the philosophical principles on which those conclusions are founded. Real conflict resolution requires serious drilling down to the core principles underlying the competing positions, to either find common principles on which to base a solution, or to make plain the hidden causes of the conflict and thus enable the crafting of a workable resolution. Sociologists and philosophers can do real good here.

The same goes for the crafting of criminal laws, sentencing policies and rehabilitative programs — sociologists with a real understanding of not only what is going on but why, and what solutions are most likely to get the desired result, can be a source of great justice in the world.

But only if they are careful in their study. They cannot measure the myriad normative values, formal rules, and patterns of interpersonal and governmental interaction, unless they can first name what they are measuring. If you’re lumping everything into the same bucket, you’re not going to do anyone any favors.

One of our favorite topics here at the Criminal Lawyer has been the interaction of brain science and criminal law. So it’s with a pleased tip of the hat to Mark Bennett that we have the video linked above, an excellent summary of modern neuroscience as it applies to deep policies of our jurisprudence — Culpability, free will, the purposes of punishment, and how (or whether) to punish. The lecture was given about a year and a half ago by David Eagleman, a neuroscientist with a gift for explaining the stuff to non-scientists like us.

Most popularized science is weighed down with histories of how we got here, rather than discussions of where “here” is and where we might be going next. It’s a necessity, but unlike most popularizers Eagleman manages to cover that ground in just the first half of the lecture, rather than the more usual first 80%. So if you want to cut to the chase, you can skip to around the 15-minute mark. We enjoyed watching it all the way through, however. Once he gets going, he neatly and clearly presents ideas that many should find challenging — not because they undermine criminal jurisprudence, but because they challenge much that it merely presumes.

One particularly challenging idea of his is that, as we understand more and more how the brain works, and especially the smaller and smaller role that free will plays in our actions, the less focused on culpability we should be. Rather than focusing on whether or not an individual was responsible for a criminal act, the law should instead care about his future risk to society. If he’s going to be dangerous, then put him in jail to protect us from him, instead of as a retroactive punishment for a crime that may never happen again. The actuarial data are getting strong enough to identify reasonably-accurate predictors of recidivism, so why not focus on removing the likely recidivists and rehabilitating the rest?

Of course, as we mentioned the other day, there’s an inherent injustice when you punish someone for acts they have not yet committed, just because there’s a statistical chance that they might do so at some point in the future. That kind of penalty must be reserved for those who have actually demonstrated themselves to be incorrigible, those who reoffend as soon as they get the chance. Punishment must always be backwards-looking, based on what really happened, and not on what may come to pass.

We have quibbles with some other points he makes, as we always do when people from other disciplines discuss the policy underpinnings of criminal jurisprudence. But on the whole, this is a worthwhile watch, and we’d like to hear what you think of it.

Last week, the prosecution and the defense filed their sentencing memoranda in the Rajaratnam case.  Raj was convicted of 14 counts in all — 9 counts of securities fraud, and 5 conspiracy counts.  So what do the parties think that’s worth?  The feds asked Judge Holwell to sentence Raj in the range of 19.5 to 24.5 years.  The defense didn’t make a specific request, just said it ought to be “well below” what the feds want.

So 20 years, huh?  Wow, he must have been an awful bad guy.  Must have hurt a whole lot of people, right?

After all, a mugger in a dark alley only takes one person’s wallet.  A “white-collar criminal” can steal from thousands of people — and takes not just their wallet, but their life savings!  Right?

Well, hang on.  Did Raj actually steal from anyone?  How many investors did he really harm?  And did any of them really lose enough money to warrant locking someone up till we all have flying cars and jetpacks?

Judging from the feds’ sentencing memo, you bet.  Just look at this, from the introduction:

Raj Rajaratnam’s criminal conduct was brazen, arrogant, harmful, and pervasive.  He corrupted old friends.  He corrupted subordinates.  He corrupted entire markets.  Day after day, month after month, year after year, Rajaratnam operated as a billion-dollar force of deception and corruption on Wall Street.

Wow, that sounds awful.  So the victims are… who again?

But wait, there’s more:

Rajaratnam repeatedly leveraged the power of money and his position as the head of a 7-billion dollar hedge fund to induce friends, employees, and associates to participate in his criminal activities.  Although already rich, Rajaratnam did this to drive up his personal wealth through profitable trading in his hedge fund.  He did it to make sure that investors did not pull their money out of Galleon and to attract new money to his fund.  And he did it because of his egomaniacal drive to triumph over his competitors on Wall Street.

Again, wow.  (The feds sure like their adjectives, don’t they?  Comes off a tad over-the-top, if not insulting to the intelligence.)  So he was trying to increase his wealth, gotcha.  But at whose expense?  Guess we have to read more:

That was what he cared about: money and success.  What he did not care about, at all, was the extensive harm he left in his wake: harm to the capital markets; harm to the average, ordinary investors who played by the rules; harm to the companies whose secret information was misappropriated; and harm to the lives of those he corrupted.

Well, that sounds a little more like it… but again, who was harmed, and how?

Although particular investors on the other side of Rajaratnam’s illegal trades are not easily identifiable, there should be no question that ordinary investors paid the price for Rajaratnam’s crimes and that public companies were harmed by Rajaratnam’s repeated theft of corporate secrets.

Oh for crying out loud.  Are they joking?  Stripped of its demagogical rhetoric, this translates to “We have not identified any actual victims.  But we shouldn’t have to.  It’s obvious that lots of people must have been harmed, even if we don’t know who they were.”

If they don’t know who — or even whether — anyone was actually harmed here, how in blazes do the feds justify asking for 19.5 to 24.5 years of imprisonment?  Here’s how:

[The feds want that much time because they feel it is] proportionate to the historic nature of his crimes.  He is arguably the most egregious violator of the laws against insider trading ever to be caught.  He is the modern face of illegal insider trading.

That’s it.  That’s all.  “Because this is the first time we’ve ever caught someone so red-handed,” and “because this case got so much press.”  Those are the sole reasons why they are looking to put this guy away until he dies of old age.

Really?

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For the record, we’re predicting something around 180 months — 15 years or so.  We base that prediction on other sentences by this judge that we’re aware of, and a bit of that amorphous experience we call our gut.

But is even that what this case is really worth?  When all is said and done, who really are the victims of insider trading?

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It depends on how the crime was committed, really.  There’s more than one way to skin a cat, and there’s more than one way to commit securities fraud.  Some kinds of insider trading have more obvious victims than others.

For example, let’s say you break into the offices of 3M, and read a secret file that shows they are about to announce the release of a phenomenal new kind of sticky note that will revolutionize office work forever.  You max out your leverage and buy all the 3M call options you can afford.  When the news is announced a week later, you’re an instant millionaire.

Now, did your actions change the profit or loss of any other people?  Nobody else’s stock price went up or down a penny because of your actions.  3M’s shareholders are just as wealthy as they otherwise would have been.

What about the counterparties to your trades?  Didn’t you defraud them by buying at their price when you knew the price would be higher?  Not really.  Fraud implies misrepresentation.  The only thing you represented was that you thought the price was going to go up, which was true.  They did the deal not because of any representation you made, but because they calculated it to be worth it.  So nobody in the market seems to be a victim here.

But you stole.  You out-and-out stole secret information that you weren’t entitled to.  The value of that theft can be calculated a few different ways, but the simplest way is to look at how much you yourself profited from the theft.

It’s not really insider trading, then, so much as a simple act of burglary.  Applying the securities laws doesn’t seem to be called for.  But it is still considered security fraud and insider trading at the moment, and there is certainly an identifiable victim: 3M.  And an easily calculable loss: either your gain, or some other book valuation of the info you stole.

Another example where there is a clear victim and a clear loss is when a short seller gets wind of some confidential information that’s bad for Company X, and the short seller starts shorting Company X all over the place, further driving down the stock price.  Company X’s shareholders are tangibly harmed by this, because their assets just lost a lot of value they probably wouldn’t have but for this trading on inside information.  (If the trader was someone who actually owed a duty to Company X — an executive or other fiduciary — there’s an added sense of disloyalty, but the harm is still the same.)

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But apart from those examples and maybe one or two more, there just aren’t situations where insider trading really has any victims.

So why is it a crime?

“Because it undermines consumer confidence in the markets,” is the official line.  That’s hogwash, of course.  Consumer confidence would only increase if there were more insider trading.  Share prices would be determined, not by guesswork and conjecture, but by actual solid data.  Heck, it ought to be mandatory.  If the information is material, and it’s a publicly traded company, then the information ought to be public.  Theft of trade secrets should be the only law on the books here.

Not only is it beneficial to the markets, to have pricing based on accurate information, but there is no element of fraud involved.  It really isn’t securities fraud.  Nobody is being deceived; everyone is engaged in arms-length trades, buying and selling for precisely what they think the stock is worth.

It’s no different than if I buy a rare book from you for $10.  You think it’s worth maybe a buck on a good day, and you’re happy to sell it to me for what I offered.  I, on the other hand, know it’s worth at least $1000 to a collector I happen to know.  So what?  My purchase isn’t fraudulent or criminal in any way.  (Presuming you hadn’t hired me to assess the value of the book, of course.)  How is this different from insider trading in the stock market?

The simple answer is that, absent outright theft or misappropriation of secrets that don’t belong to you, insider trading doesn’t have any victims.  It doesn’t hurt anyone.  In many cases, it’s probably actually a good thing.

The only reason it’s against the law is because it’s politically fashionable for it to be so.  People love railing against “corporate greed” and “Wall Street crooks,” those amorphous evils of the populist psyche.  When the economy takes a hit, for good and basic economic reasons that have nothing to do with any criminal activity, there’s an outcry for punishment of the financial wizards doing things with money that we don’t understand.  Folks on the left pass more laws and regulations outlawing efficient market behavior.  Folks on the right pass stiffer sentences.  Prosecutors break their legs tripping over each other to indict the next big press case.  And so it goes.

Who are the real victims of insider trading?  In some cases, maybe it’s the people who get charged with it.

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Even so… 20 years?

Really?

Really?

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to make a buck.  Not because you want prestige.  Not because you can’t think of anything else to do.  Not because you want a cool job.  If those are your reasons, you don’t belong.

2.  Can a Cop Lie to You About Whether He’s a Cop?

Of course he can.  Cops are allowed to lie to you about pretty much anything, and that includes whether they’re really an undercover.  Cops are trained to make false statements in order to elicit a confession — it’s not the only way, but it’s a time-honored investigative technique that gets results.  Whether that is ethical or not is not the issue.  But there is no ethical question when it comes to whether an undercover has to admit he’s carrying a badge.  The slightest bit of thought should make that obvious.  An undercover dealing with some dangerous thugs is likely to get shot if they find out he’s a cop.  At the very least, if he himself isn’t killed, the investigation sure will be.  It would be beyond stupid to require undercover officers to announce that fact if someone asked them.  Nevertheless, idiots continue to ask “you’re not a cop, right?” and then go ahead with their crime when the cop says no.

3.  What Crimes did Goldman Sachs Commit?

None that we’re aware of.

Certain people like to rant that there aren’t enough criminal prosecutions to punish the Wall Street types who “caused” the financial meltdown of the last few years.  We’d like to remind those people that stupid business decisions are not a crime.  Neither are smart business decisions undercut by market forces beyond one’s control.  Neither are decisions to hold off on extending credit in uncertain times, especially when the uncertainty is exacerbated and extended by foolish governmental actions.  And neither are those foolish governmental actions criminal.

The one criminal case that was brought, against Bear Stearns executives, was a flop because those guys didn’t commit any crimes either, and the jury saw it pretty clearly.  The case shouldn’t have been brought in the first place, and wiser heads have prevailed against calls for further similar arrests.  The prosecutorial focus has instead shifted to frauds that were exposed once the market turned sour, and to the current fad of insider-trading cases.

4.  Would Adam Smith Approve of Insider Trading?

Depends on which Adam Smith scholar you ask, and on your definition of insider trading.  Speaking generally, he’d probably be in favor of economic decisions being made rationally, taking into account all the relevant information.  He’d probably be opposed to keeping such information secret in the first place.  Still, we’re not an Adam Smith scholar (thank goodness — he’s almost impossible to read).  For a thoughtful and insightful summary of his writings, however, we heartily recommend P.J. O’Rourke’s take “On the Wealth of Nations.”

5.  What Should You Say to the Judge at Sentencing?

It depends on your particular case.  In some cases, especially where there’s been an agreed-upon plea deal, you don’t need to say anything at all.  In some cases, you the defendant opening your mouth is only going to piss off the judge so he gives you a few extra months or years in the slammer.  In other cases, a sincere statement can demonstrate that you’re not the kind of person who ought to get a harsh sentence.  Depending on your circumstances, this could mean a statement of remorse, of change, of compassion, or other things likely to make a difference.

Even if you don’t say anything yourself, and it’s not an agreed-upon plea, it is often a good idea to have a lot of people in your community write letters to the judge showing why you should get a lighter sentence.  These letters should not be sent to the judge, but instead should be sent to your attorney, so he or she can put them together as an appendix to a sentencing memorandum arguing for a lighter sentence.  Letters should be from people who actually know you.  They should state facts about you, specific things you’ve done, as specific as possible.  Provide facts from which the judge can draw conclusions.  The worst letters just provide the conclusory statement that this guy deserves a lighter sentence, without providing any facts to support it.  No, we take that back, the worst letters aren’t about you at all, but are about the writer of the letter — how much they’ll miss you, how hard it will be on them if you go to jail, etc.  Sentencing is not about them, it’s about you.  The judge isn’t going to feel like he’s the one putting them through any hardship; you are.  Just focus on reasons why you shouldn’t get a higher sentence, period.

And if saying anything will just make it worse, then don’t say anything.

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There.  Nothing too in-depth here, but we hope it sorta answers some of your questions.

Dang, that wasn’t as time-consuming as we’d hoped.  Now what else are we going to do this afternoon?

Bill Otis, a former AUSA and now an adjunct at Georgetown Law, had a piece earlier this month in the Federalist Society’s magazine Engage titled “The Slow, Sad Swoon of the Sentencing Suggestions.”  His article opens with the sentence “The Guidelines are a lost cause.”  We were in total agreement so far.  But by the next sentence, he’d lost us.

It’s a good article, don’t get us wrong, and well worth reading.  But Prof. Otis’ main point is that the Guidelines stopped being useful after Booker made them optional.  He’d prefer to completely do away with them, but only to replace them with more stringent rules that remove most of the discretion judges now have in sentencing.  We cannot agree.

The Guidelines were enacted back in 1987 largely in response to a perception that sentencing was too unpredictable.  For any given crime, Judge A might give three years in prison while Judge B might give only one.  Or Defendant X might get prison while Defendant Y only got probation.  The Guidelines corrected that by removing much of the discretion judges had.  For a given offense, and a given criminal history, there was a range of permissible definite sentences that could be imposed.  Some discretion was allowed for slight downward or upward departures to different ranges.  Less discretion was allowed for variances, sentences that rejected the Guidelines as inappropriate.  Needless to say, judges hated this loss of discretion from day one.  The Guidelines were not mere guidelines, but strict rules.  It stayed that way until the 2005 Booker decision restored them to the general rule-of-thumb they were meant to be.

Now, the Guidelines are still important at sentencing.  Everyone uses them, everyone applies them.  Now, however, once the appropriate Guideline range has been calculated, there is more room for advocacy to seek a different sentence, and judges are able to consider different sentences on a case-by-case basis.

Some, like Otis, decry this as a return to the unpredictable bad old days, where one’s sentence varied based on the “luck of the draw” of which judge one happened to have.  Others praise it as a movement towards greater individual justice.

The division here is deep, a seemingly irreconcilable difference of core principles of what criminal justice is supposed to do.

On the one hand, you have those who want predictability, uniformity and consistency.  If stealing $50,000 is worth five years (or whatever), then it’s worth five years.  What’s important is the crime, not the criminal.  If society knows that a given crime gets you a given sentence, then the law has a more deterrent effect.  The penalty works to prevent more of the same crime, and society benefits.  Taking into account such variables as the thief’s personal circumstances or the judge’s gut feeling that this wasn’t such a big deal — or conversely variables such as the relative harm suffered by the particular victim or the judge’s gut feeling that this was worse than usual — makes for an unpredictable world where nobody knows what a given crime is worth.  Without predictability, the law loses its deterrent effect.  Society suffers.  The purposes of punishment that are most important to this group are retribution — a given crime is worth a given penalty — and general deterrence.

On the other hand, you have those who want individualized sentencing.  Make the punishment fit the criminal, not the crime.  Justice is not what happens on average, it is what happens to this individual standing right here right now.  And even general deterrence is achieved not by specific sentences, but by the general awareness that some punishment is going to happen.  The uncertainty of what that penalty might be doesn’t lessen the deterrent effect of this awareness.  And the retributive aspect of punishment must be proportional to be just.  A one-year sentence might be devastating to the life of a middle-class college grad whose career will be ended, whose reputation in his relevant community will be destroyed, and who will suffer the consequences deeply for the rest of his life.  That same one-year sentence might be a walk in the park (or as one of our clients once put it, “a nice vacation”) with little or none of the devastation suffered by the other.  Justice demands that individual differences be taken into account.  And that demands that judges be given the discretion to do so.

These two positions — general justice vs. individual justice — are usually irreconcilable because they use the same words to mean different things.  They can’t even begin a discussion because they’re arguing from core principles that don’t correspond.

But beyond that, those who value general consistency over individual appropriateness miss the entire point of our criminal justice system.  The whole point is to ensure individual justice, while protecting the individual from the overwhelming might of the government.  It’s inefficient as hell, but on purpose.  Efficiencies and averages and consistency are bright lines that do not, cannot, take into consideration the details of this particular case, this particular person.  Rules that work fine for most people will always have individuals here and there who suffer unfairly.  Those who say this is a necessary sacrifice to the greater good simply miss the whole point of what our system’s been trying to accomplish since the Middle Ages.

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In a phone conference today, Prof. Otis made some more points in favor of abolishing the current federal sentencing system, and replacing it with mandatory, quasi-determinate sentencing.  There should be mandatory minimums for a given crime.  There should not be a mandatory maximum, however (what he refers to as “topless” sentencing).  He calls this a return to the Rule of Law, restoring the rule of law to sentencing.

He’s right to say that the whole point of the Rule of Law is to constrain the discretion of the mighty.  But how he says it shows that he misses the point entirely.  The point of the Rule of Law is to protect the individual by ensuring that those with power, including the government, are subject to the same law.  But Otis perverts this into an idea of protecting the government (or its stand-in “society”) from the whims of judges with the power to impose lighter sentences than those the government would prefer.  It sounds good when he says that the point of the Rule of Law is to constrain the discretion of the powerful, and replace their whims with written rules that even the powerful must follow.  But he’s not talking about protecting the individual from the might of the state.  He’s talking about protecting the state against judges who would otherwise protect individuals from the state.

It’s almost Orwellian.

-=-=-=-=-

In his remarks today, Prof. Otis decried the fact that judges like to depart downward from the Guidelines.  Before Booker, they were followed 80% of the time, but now they’re only followed 63% of the time, and at the present rate of decline the Guidelines will be disregarded in a majority of cases within three years.  ”Sentencing,” he says, “is now the defendant’s playground.”  Downward departures outnumber upward departures by 20 to 1.  Individual judges are deciding that the Guideline ranges for certain cases (notably white-collar defendants and child porn possessors) are out of whack, and are imposing sentences they believe to be more fair.

He says this like it’s a bad thing.

Of course, what’s really going on here is judges are trying to do the right thing.  They’re trying to work out individual justice for the case in front of them, instead of trying to manage some technocratic generalized ideal.  Sentences for many cases are too high.  The Guidelines for many cases are unfair.  Judges get it.

The solution isn’t to do away with judges’ power to do the right thing on a case-by-case basis.  The solution is to make sure they can do the right thing.

The Guidelines are not the way to do it.  Even if they continue to be perceived as a mere rule-of-thumb that applies to most — but not all — cases, the Guidelines are still insane.  Even with the latest corrective measures, cocaine as used by inner-city black folks is penalized several times more harshly than no-less-harmful cocaine in the form as ingested by upper-class whites.  Possessing (admittedly awful) pornography is still penalized far worse than the actual molestation of an actual child.  And sentences for the crime-du-jour only ever ratchet upwards.  Sentences only get more and more disproportionate to the underlying harm, as time goes on.

The way to do it is to restore discretion to the judges, to put people away for the appropriate amount of time considering not only what they did but who they are.

Prof. Otis himself almost made this point today.  He mentioned that the ever-longer sentences imposed under the Guidelines share some of the responsibility for the huge drop in crime since they were imposed, if for no other reason than they are keeping off the streets the very people who otherwise would have committed crimes had they gotten out sooner.

Exactly.  That’s a characteristic of the individual that is meaningful.  If someone is likely to be a threat, then it might make sense to keep him off the streets a bit.  But if someone is never going to be a threat again, maybe it makes just as much sense to not lock him up for quite so long — or even at all.  Prof. Otis is willing to consider the first option, but isn’t willing to let judges consider the second.

And that’s just not right.

Too many people are in jail.  The rate of incarceration is just going up and up.  Is it doing any good?

If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted.  The prison population of 1.5 million is about triple what it was in 1980.  Meanwhile, according to the DOJ’s figures, violent crime is about a third of what it was in 1980.  It’s an uncanny correspondence, that incarceration has tripled while violence has thirded (yes, that’s a real word).

Some people look at this and say there’s an inherent absurdity, an inherent injustice, that even though crime is down jailings are up.  Others say it’s obvious that, if you jail the people who commit crimes, they’re not going to be walking around to commit as many crimes.  One sees a paradox, the other sees causation.  (These are not straw men, by the way.  These positions have been taken on the pages of the New York Times and the Wall Street Journal, among others.)

There really isn’t any paradox, of course.  It’s not like more people are being imprisoned than there are crimes being committed.  Last we heard, everyone in prison was convicted of something.

What’s going on here is that more and more convictions are resulting in incarceration.  Crime may be down, but the proportion of crimes you’re likely to go to jail for is way up.

Nonviolent crimes, in particular, are far more likely to get you a jail sentence these days.  Since about the start of the Clinton administration, the number of different kinds of nonviolent offenses has skyrocketed.  And drug crimes have been a growing proportion since the Reagan years.

Several factors are involved in this dramatic increase in prison for nonviolent offenses.  One is a dramatic increase in regulatory violations that have been criminalized.  Regulatory agencies have started using criminal law as a tool — a tool that is wrong for the job, and one they are ill-equipped to use.  Voluminous regulations are created to micromanage how people can live their lives and operate their businesses.  Fines, denial of permits, and other civil penalties are the normal and appropriate method for enforcing compliance with all the regulations.  But over the past generation, regulators have become emboldened to impose criminal penalties for violations of their rules.

These regulations are rarely drafted by anyone who has the slightest clue of what criminal law is, why it exists, and how it works.  So they tend to leave out little things like mens rea.  Everything’s a strict-liability crime with them. In the regulatory world, simple mistakes are indistinguishable from deliberate transgressions.  When the penalty is denial of a permit, that’s not a problem.  But when the penalty is prison, it’s a big problem.  And everything’s a federal offense, which almost always means a felony.  Instead of, you know, regulating conduct, the regulators use the criminal law to keep the unruly masses in line.  And more people face prison as a result.

Another factor is the elected politicians’ desire to look “tough on crime.”  Which results in a steady ratcheting-up of sentencing for existing crimes, as we’ve discussed before.

It also results in the creation of new crimes, harsher statutes to deal with the public outcry of the moment, like crack or hate crimes or insider trading or what have you.  These new offenses are rarely necessary, as existing laws tend to already punish the conduct.  But the new ones often carry greater minimum sentences, and that’s the whole point.  So more people are facing prison, and for longer stretches of time, than before.

-=-=-=-=-

The situation is getting out of hand.  It’s gotten to the point where small corrections aren’t going to cut it.  Drastic measures would be needed.  And drastic measures being, you know, drastic and all, they’re not likely to be undertaken any time soon.

But let’s say we’ve got a genie who’s offered to grant us three wishes here.  What would they be?

Wish one would be regulatory reform: Nothing may be criminalized except by a statute passed by the legislature.  Crime is that thing which is so offensive to the general population, or so harmful to the community, that society agrees it should be punished by the deprivation of one’s life, liberty or property.  It is a cultural thing, created by the people.  The people need to have a say, if it’s going to be legitimate.  Rulemakers and bean counters cannot be permitted to do it behind our backs, even if they think it’s for our own good.  That’s not how it works.

Wish two would be conceptual: No conduct may be criminalized unless it actually causes real, perceptible harm, and it’s done with some criminally bad state of mind.  That means no strict-liability offenses — accidents and mistakes must be protected from penal consequences.  That also means no victimless crimes — certain “quality of life” offenses, personal-use drug offenses, and white-collar offenses are going to go out the window.  (And with drug convictions accounting for roughly half of federal inmates and a fifth of state inmates at the moment, this right there would cut out a huge chunk of the excess prison population.)  But white-collar thieves, organized drug dealers, and the like will still face punishment for conduct that society rightly abhors.

Wish three would be much more extreme: Sentencing must be entirely individualized, to determine whether incarceration is actually necessary for this particular person.  That means no minimum sentences for anything.  That means person A can get probation for violating the same statute that gets person B fifteen years.  Too bad.  A lot of people are in prison who don’t belong there.

Mandatory minimums make no sense.  They appease those who cry “injustice” when they see person A get treated differently from person B, because person A has different circumstances.  But it is that very one-size-fits-all attitude of moral equivalence that is the source of great injustice.  Contrary to Clint Eastwood’s line in “Unforgiven,” deserve’s got everything to do with it.

Most people who get in trouble with the law never get in trouble again.  Depending on the study you read, the figure is somewhere around 83% of people whose first contact with the criminal justice system is their last.  We all know this is true, and that’s why we have things like probation and consent decrees and adjournments in contemplation of dismissal — to give people a chance to prove they’re not one of the ones we have to worry about, one of the recidivists we need to deter or remove through incarceration.  Similarly, rehabilitation — drug treatment programs and the like — is reserved for the rehabilitatable.

But these chances are only extended to those who commit minor offenses which, arguably, weren’t worthy of punishment in the first place.  But if the system was internally consistent, these alternatives to incarceration would be available at every level.

We can hear some of you protesting that some crimes are just so inherently bad that the criminal must be locked up.  Murderers and rapists, for example.  Well, what makes their crimes so inherently bad?  Is it the act itself, or some combination of the act and their own character?  It can’t be the act itself, or else there’d be no such thing as justifiable homicide.  The criminal’s personal characteristics, such as his mental state when committing the offense, are of course factors to be considered.  Why not include such factors as whether this person is likely to ever reoffend again?  Even a man who killed once in a fit of passion may pose zero threat of future violence.  Most killers probably do pose a threat, but what about the ones who don’t?  What interest does the state have in locking them up?  Surely there are other punishments that can exact the state’s revenge just as well.  And the victims and their loved ones always have the civil courts in which to seek their own redress — we keep forgetting that the prosecution is not the victim’s lawyer, and is not there to serve the victim’s needs.

Ah, but it’s not all about the criminal here.  Punishment also serves to deter others.  Shouldn’t there be some general sense that, if you kill someone, you’re going to go to jail?  Well, no.  The people who aren’t likely to ever do it again are the same ones who aren’t likely to do it in the first place, regardless.  They’re not deterred by the threat of prison; they’re deterred by the knowledge that it’s wrong.  Deterrence only works on those who are open to the possibility of doing it, and who are premeditating the crime enough to consider the costs and benefits.  It’s really irrelevant here.

Punishment only serves a few purposes, after all.  If, after weighing them all, they can be served by something other than incarceration, then why incarcerate?  If you’ve got a crime where there’s no need to deter this individual from doing it again, no point to deterring others similarly situated, no reason to think that prison will rehabilitate him, no need to keep him off the streets for public safety — what possible reason is there to imprison him?  The only reason that remains is retribution, a form of institutionalized revenge.  An unthinking, uncivilized infliction of harm without regard to whether it serves any purpose or not.  Our society has evolved beyond it as a justification for punishment.  So if that’s all that remains, then it shouldn’t be permitted to affect the sentence that is imposed.

No, mandatory minimum sentences make no sense.  They appease the wrong sensibilities, and only cause individual injustice and overpopulated prisons.  Wish three would be for every sentence to be entirely suited to the individual offender, as well as to the needs of society.

-=-=-=-=-

None of these three wishes are going to be granted any time soon.  They require more gumption from our legislatures than is realistic to hope for.  And the third wish is likely to be shouted down from the left and the right, the egalitarians and the eye-for-an-eyers.  But they’d work to reduce the inherent injustice of our ever-growing rate of incarceration in this country.

Still, that’s just our idea at the moment.  We’re sure that many of you have better ideas.  Well, fire away, we’d love to hear them!

We rag on Attorney General Eric Holder from time to time on this blog.  For good reason — he’s been something of an idiot on profiling, miranda, terrorism, etc..  But today he did something praiseworthy, and we’d be out of line if we didn’t say so.

Last August, Obama signed the Fair Sentencing Act.  Although it does have some significant drawbacks, such as actually increasing sentencing for some defendants, the main intent was to try to reduce the insane disparity in federal sentencing for crack cocaine and powder cocaine.

The problem was, this reduction in the sentencing guidelines was not retroactive.  It only applied to future cases.  People already in prison for crack — even though everyone now agrees their sentences are too long — would have to suck it up and stick it out.

But today, AG Holder testified before the US Sentencing Commission, and told them the new lower sentences should be applied retroactively.  ”As years of experience and study have shown, there is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders,” he said.

Yes.  He is, for once, right.

Of course, even when he’s right he can’t help being wrong.  Holder wouldn’t let the lower sentences be retroactive if the inmate happened to have a gun at the time of the crime.  Or if the inmate had a “significant” criminal history.  Apparently, crack really is something that should be sentenced more harshly if you’ve gotten caught possessing or selling it before.  There’s no internal logic here, no principle that supports this.  If crack crimes are not more serious than equivalent powder crimes, then what justifies enhancing crack but not powder sentences if these other factors exist?  Holder’s being disingenuous, trying to appease both the reformers and the “try to look tough on crime” legislators, instead of actually being true to his principles.  If he has any.

Still, although he’d be more correct to seek retroactive application across the board, he’s at least doing something right in seeking some retroactivity at all.  So here’s some polite golf applause for Eric Holder.

It’s rare that we agree with a NY Times editorial.  Yesterday, we came close.  In a blurb titled “Recidivism’s High Cost and a Way to Cut It,” the editors said one solution to the high cost of imprisoning repeat offenders would be to adopt what Oregon’s doing, in letting its parole officers use programs and other alternatives to jail for lesser violations.

Ooh, so close.

Two problems: One, most of those who return to prison aren’t coming back on a parole violation, they’re going in because they got convicted of a whole new crime.  Yes, far too many parolees get put back in for non-criminal stuff like failing to abide by arbitrary and asshole-ish conditions imposed by dickhead parole officers.  But this doesn’t account for much of the actual recidivism numbers.  So dealing with this isn’t going to make too big a dent in the repeat prison population.

Two, the people making the decision are still going to be the same parole boards, parole officers, and parole magistrates who are acting like assholes and dickheads in the first place.  (These are obscure legal terms of art, perhaps obscure to those who do not practice criminal law.  To any non-lawyers reading this, we believe the common expression would be something akin to “unthinking, tyrannical bullies.”)  The problem people are the ones who are so jaded by dealing with scumbag after scumbag that they are incapable of recognizing a deserving parolee when they see one; or they are so stupid that they are incapable of reasoned discretion and cling to rote practices like a drowning man clutching a lifeline; or they are such villains that they derive satisfaction from fucking people over; or they are so righteous that they believe they are doing the right thing in fucking people over.  Whichever variety you’re dealing with, they either abuse their discretion or fail to use their discretion in the first place.  So giving them more discretion isn’t going to solve anything.

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So okay, the NYT oversimplified, missed the real point, and offered a useless suggestion.  Who cares, that’s what they always do.  But this is The Criminal Lawyer, you’re saying to yourself.  What do we suggest?

The biggest problem is really out of the hands of the criminal justice system.  It’s people who are not deterred from committing additional crimes, and who are not rehabilitated by prison.  In other words, almost everyone who commits that second crime.

The vast majority of people who pass through the criminal justice system never come back.  Depending on the study, the number is something like 83% of people who get arrested for one thing or another never get arrested for anything again as long as they live.  It doesn’t matter whether it’s for smoking a joint on a park bench, or for a senseless murder.  The first time is the last time.  The fact of a prison sentence, and the length of a prison sentence, have absolutely nothing to do with why such people never offend again.  Do your own regression analysis, if you wish.  Incarceration is not a meaningful variable, and has absolutely nothing to do with why people do not reoffend.

Society does not get any general deterrence from any particular prison sentence.  Firstly, nobody knows about it.  It’s not as if the hundreds of sentences handed down every day in NYC alone are remotely known to the general population.  General deterrence comes not from specific sentences, but from a general perception that prison is something that happens to people who commit a crime.

Specific deterrence is irrelevant, because whether a person reoffends or not has nothing to do with the severity of the sentence imposed.  If you’ve got someone who’s in the 17% who keep coming back, you can keep upping the sentence each time he returns, and it’s not going to deter him from doing it again.

And anyone who thinks that prison actually rehabilitates people is invited to rejoin the rest of us in the real world.  You’re really missing out, come on back now.

None of this means that people cannot be rehabilitated.  On the contrary, there are proven methods of rehabilitation.  None of them involve prison, except perhaps as a threat to ensure compliance with the rehabilitation program.  Drug courts, personal interventions, religious transformations, programs that teach people how to actually live like a normal person and get a job and be responsible (and happier as a result), all of these things have been proven to work for certain kinds of people.  Everyone’s different, so there’s no one-size-fits-all solution, but for lots of people there really is a fix.  And prison isn’t it.

That’s because many re-offenders only do so because of their situation.  Maybe they commit crimes to feed a drug or gambling addiction, and they’ll stop if they can get on top of it.  Maybe they commit crimes because of a mental illness that can be treated.  Maybe they grew up and live in a community where their crimes are encouraged or enabled.  Maybe they just never learned the basics of life that would enable them to live a law-abiding one.  All of these things are fixable.

It must be recognized, however, that some people cannot be rehabilitated.  There really are thugs out there.  Those who, though they are human beings, are so damaged that they are incapable of being human.  Not psychotic, merely psychopaths.  Society’s rules just don’t apply.  Your life has no value to them.  They’ll commit crime because it’s what they want to do.  They are not deterred, except by fear for their own self.  They are not rehabilitated, ever.  For these people — and only for these people — prison makes sense.  To the extent they fear it, they are deterred from doing what they otherwise would freely choose to do.  (The rest of us are well-socialized enough to merely think about it, but never do it.)  At the very least, it keeps them off the street and prevents them from threatening the rest of us.

So for most people, no prison is required to get the outcome society wants (except perhaps as a threat for those who might not otherwise do what is necessary to rehabilitate).  And for the very small number for whom prison is necessary, the sentencing terms our laws now apply are irrelevant.  Rather than basing a prison term on the kind of crime committed, the term should instead be based on how long that person needs to be kept off the streets.  Depending on the person, it might be for months, or it might be for life.

-=-=-=-=-

As a civilized society, we don’t like to admit it, but it’s a fact that some element of punishment is sheer retaliation.  You did something bad, so now something bad is going to happen to you.  Forget all the philosophical purposes of punishment like deterrence, rehabilitation, removal — even good old “eye for an eye” proportionate retribution.  We’re talking about simple retaliation here.  And it would be foolish to deny its existence.  In fact, as a sentencing factor, it accounts for most disparities in individual sentencing.

So perhaps it ought to be taken into account more openly.  More fairness in sentencing, and less unnecessary imprisonment, might result.

For example, we’ve represented clients for whom jail is really no big deal.  It’s not a social stigma, and can even be a source of standing.  They didn’t have the kinds of lives that would be destroyed by spending months or years behind bars.  We’ve even been told point-blank by some clients that they look on a middling piece of imprisonment as a kind of vacation — they get some time away from the stresses of the real world, they don’t have to do anything, everything’s taken care of for them, and when they come out they can reset and maybe even the problems they left behind have gone away in the meantime.

On the other hand, we represent a fair number of clients for whom even the briefest stint in jail is practically a life-ender.  Everything they’ve worked and striven for in their lives is over.  The social and professional stigma is complete, and unredeemable.  Their lives, as they know them, are over.  This is not an exaggeration.  It is a simple statement of fact.  Not only they suffer, but their innocent families, employees, and communities suffer hugely as well.

So depending on the individual, the amount of retaliation inherent in a given sentence is going to vary dramatically.  A 6-month prison sentence that would be a laughable joke for one person would be disastrous and soul-crushing for another.

Judges like to say “I’m not the one putting him in prison; you did it to yourself.”  And similarly to the families, employees and others, they say it’s the defendant and not the judge who’s doing it to them.  But that’s absurd.  Beyond absurd, it’s an unthinking self-rationalization that’s little more than a lie.  Judges with the discretion to impose something else are obviously the only ones deciding to impose prison instead.  So it’s not absurd to say that judges do a disservice to society when they put someone in jail for whom the retaliatory effect is disproportionate to the harm done.

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By now, it should be obvious what the criminal justice system can do to reduce repeat prison stays.  It can’t do anything about those who’d never offend again.  It can’t change the way people are reared (or more accurately, not reared) so that they are more likely to re-offend.  It can’t do anything about the economic and social pressures in certain communities that increase the chances (or virtually guarantee) re-offense.  But the system can create individualized programs that are suited to rehabilitate this particular offender.  And for those who must be removed, it can create individualized sentences that take into account the threat that this particular person poses to the rest of us.

The most significant change to our system, therefore, is to do away with mandatory sentencing.  Remove all mandatory minimum sentences.  Get rid of them.  (Sorry, Justice Thomas, but everyone else on the Court really is right to want to move in this direction.  The old-time sentences that varied based on the characteristics of the individual defendant and the individual offense may have been unpredictable, but to the extent they were unfair this is not what made them so.)

Mandatory minimums are the single greatest cause of unnecessary prison stays.  The vast majority of people in prison simply don’t need to be there, but the law requires it, so they’re there.  The law requires it because elected politicians like to look “tough on crime,” and so they impose such minimums and then ratchet them up over time.

But sentencing courts should be given the power to hear reasons why this particular defendant is one of those for whom prison is pointless, if not counterproductive.  And they should be given the discretion to sentence accordingly.

That’s really it.  Simple, no?

Let this be a lesson to any young appellate lawyers who might be reading this:  Focus on the result, not on the argument.

We’re wading through the various slip opinions and decisions that came down during March and April while we were on trial, and the Supreme Court decision in Pepper v. United States just floored us.  In a nutshell, Pepper got a huge downward departure at sentencing, for providing substantial assistance, getting 24 months plus five years of supervised release.  After Pepper had served his time and was now out on supervised release, the Eighth Circuit said his sentence was improper, and remanded for new sentencing.  The original departure was about 75% off the guideline.  At resentencing, the judge took 40% off, but then dropped it down to 24 months again based on extensive evidence that Pepper had gotten his life back on track in major ways.  The government appealed again.

On the second appeal, the Eighth Circuit reversed again, saying that post-sentencing facts could not be considered in resentencing.  Only facts known at the time of the original sentence could be applied.  After a Supreme Court sojourn on Gall issues, the Circuit remanded for re-resentencing before a new judge.  At this new resentencing, the new judge gave him only 20% off, or 65 months plus 12 months of supervised release.

Pepper appealed, of course, trying to get that original 40% departure.  So it went to the Supreme Court again.

The Supremes held, quite correctly, that of course post-sentencing facts may be considered at a resentencing.  It is absurd to argue otherwise.  The prosecution would be allowed to present evidence of subsequent failings by the defendant, so why shouldn’t the defendant be allowed to present evidence of his rehabilitation?

So far, so good.  But did that mean that Pepper was entitled to that original 40% reduction?  No.  Because “in his merits briefs to this Court, Pepper does not challenge the scope or validity of the Court of Appeals’ mandate ordering de novo resentencing, and thus has abandoned any argument that the mandate itself restricted the District Court from imposing a different substantial assistance departure.”  And the “law of the case” doctrine doesn’t apply in a de novo proceeding when the entire sentence had been set aside, which is what happened here.

This is such a forehead-smacking moment.

The Supremes are all but saying that Pepper should have said the Eighth Circuit didn’t have the authority to set aside the entire sentence and order a de novo resentencing.  Had the argument been made, the Court might have held that the Circuit could only have remanded for resentencing applying specific rules, but couldn’t order a complete do-over in front of a new judge.

But Pepper didn’t ask for that.

So Pepper didn’t get it.

Instead, all he gets now is a re-resentencing that is permitted to take into account his post-sentencing rehabilitation.  Which may or may not get him the lighter sentence he originally sought.  If appellate counsel had kept their eyes on the goal of canceling the Circuit’s de novo order, they would have argued for it.  And they might have gotten it.  Instead, they focused on making a “law of the case” argument that, while clever, made little sense if the de novo thing was still there.

Ergh.

(PS — The concurring opinions are worthwhile reading, as they lay out some of the ongoing problems in the post-Booker world.  Thomas’s dissent, however, goes too far.  He would abandon the individual justice of sentencing where judges have discretion, and would return to the one-size-fits-all injustice of the Guidelines as Mandates.  Thank goodness he’s a minority of one in this case.)