Op-Ed: Why the rule of law requires the bite of punishment

Like all humans, judges are susceptible to fads. Anger management became a popular feature of American probationary sentences in the 1980s. A few years ago it was teen courts, then drug courts. The new fad is something called “evidence-based sentencing,” and it is both a refreshing attempt at rationality and a dangerous rejection of our natures as punishing animals.

Evidence-based sentencing takes its name from evidence-based medicine, and it purports to redirect the attention of sentencing judges from old-fashioned notions of retribution to an enlightened and civilized look at deterrence and rehabilitation. The focus is on recidivism rates and the effects of incarceration on those rates. The general message is that incarceration costs much more than its deterrent benefits, and that judges should think twice before incarcerating convicted criminals.

We don’t need a new fad to make that point. One of the hidden truths of the criminal justice system is that most judges, including me, give most criminals chance after chance on probation before we pull the plug and sentence them to prison. There are of course exceptions, such as for serious violent crimes and even for some drug crimes that carry mandatory prison sentences. But for the most part, as one of my now-retired colleagues put it, defendants have to really work hard at crime before matriculating to prison.

Still, we should all applaud efforts to look at real data instead of relying exclusively on gut instinct when we try to predict the future behaviors of defendants. But we also need to be realistic about the statistical power of those predictive efforts.

There’s a reason science stinks at predicting individual human behavior. There are an almost infinite number of bits of data that contribute to human decision-making, starting with the billions of base pairs in each person’s DNA and more than 20,000 genes. Add to that the epigenetic influences on those genes, in-utero development, and then of course a lifetime of brain-changing individual experiences, all of which make us who we are, and you start to see the complexity of it all. Despite the cheerleading of behavioral prediction movements, there is no real hope that at any time even in the distant future we will have enough data about these factors to be able to make reliable predictions about an individual’s future behavior.

But there is a much more serious problem with evidence-based sentencing than its under-powered statistics. It is focused on just a tiny tip of the iceberg of punishment, and ignores the deepest and most important reason we punish wrongdoers. When I sentence a bank robber to prison, the idea is not just to deter him from robbing again (“special deterrence”) or even just to keep him away from the rest of us for a while (“incapacitation”). I also want to deter other people who may be considering robbing a bank (“general deterrence”).

General deterrence is what makes us a civilized society. It is the glue that holds us together under the rule of law. It is so deeply ingrained in all of us that every human society that has left a record has left evidence that it punished its wrongdoers. Indeed, our tendency to punish wrongdoers is most likely an evolved trait, which we needed in order to keep our intensely social small groups from unraveling in selfishness.

Admittedly, general deterrence is even more impossible to calculate than special deterrence. There is simply no way to determine how many robberies I will deter in my city if I give the robber in front of me nine years instead of six years. But that doesn’t mean punishment doesn’t deter, or that general deterrence isn’t a critical component of our criminal justice system.

By focusing only on special deterrence, the mavens of evidence-based sentencing are ignoring 5,000 years of civilized wisdom about the value of general deterrence, not to mention what is probably 200,000 years of human evolution. It’s true, they have aimed their efforts more at lower-level crimes, arguing chiefly that for these crimes, more harm than good may come from harsh sentences.

But burglaries and thefts tear the social fabric too, and they do so more broadly, even if not as deeply, as rapes and murders, simply because they are more frequent. Indeed, because low-harm crimes often involve cold economic predation rather than hot emotion, their would-be perpetrators are probably more likely to be deterred by seeing others punished. Giving thieves and burglars a stern lecture and a free ride on probation, just because a few social scientists tell us prison doesn’t rehabilitate them, is a sure-fire way to increase thefts and burglaries.

Those of us fortunate enough to live in civilized societies owe most of that good fortune to the rule of law, and the rule of law means nothing without the bite of punishment. To be sure, punishment needs to be restrained and merciful, but it should not be abandoned to misguided and under-powered claims that it does not deter.

Morris B. Hoffman is a state trial judge in Denver and author of “The Punisher’s Brain: The Evolution of Judge and Jury.”

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