I have been thinking recently about the role of punishment in preventing future crime. Criminal law theorists tend to express unease with the idea of punishing behavior that creates only a risk of harm rather than a harm itself (think drunk driving laws or laws prohibiting felons from owning firearms). Presumably out of some fealty to the harm principle, academics look to articulate rules limiting the criminalization and punishment of behavior that is risky but not harmful. (For example, Antony Duffand Douglas Husakhave written extensively on this subject.) And of those who are presently writing in the area of criminal law and sentencing, you rarely see an academic take the position that we should make punishment decisions based on incapacitation, i.e., to keep those who are more likely to reoffend in jail for longer. (Christopher Slobogin’s writings on preventative detention could arguably be an exception).
But the desire to punish based on risk seems to be a dominant theme in the public discussion on crime. Penalties for drunk driving, though of a relatively recent vintage, seem to enjoy significant support and have increased dramatically in some states. Each time I have taught the Atwater case in my criminal procedure class, I have at least one student say that imprisonment is an appropriate punishment for a mother who neglects to put a seatbelt on her child. It has been well-documented that California’s Three Strike’s Lawwas enacted, in part, based on the story that Polly Klaas would not have been murdered if her killer, who had a long criminal history, has served the entire sentence for his most recent crimes. And, of course, who can forget Willie Horton. While academics struggle with the idea that someone might be punished (or be punished more) based on the idea of future dangerousness, the public debate seems to coalesce around the idea that once someone has broken the law, the state has an obligation to ensure that individual does not harm anyone else.
One interesting manifestation of the future dangerousness issue is the burden of proof question. The academics who oppose incapacitation often complain that we have insufficient data to accurately predict who will reoffend and who will not. Even the most reliable models for recidivism inevitably result in some false positives. But public opinion seems to take a different view. This burden of proof conflict has recently appeared in the debate about punishment for possessing child pornography. In June the ABA Journal published an article by Mark Hansenthat criticized the severity of Federal Sentencing Guidelines for child pornography offenses. One of the criticisms Hansen raised was that possessors of child pornography were receiving extremely long sentences even though they didn’t pose a threat of physical harm to children (meaning that possessers were unlikely to sexually abuse a child). In support of his argument, Hansen noted: “There is no published research on the odds that viewers of child pornography will actually assault a child.” A recently published response to Hansen’s article by DOJ’s Assistant Deputy Chief of the Child Exploitation and Obscenity Section defended the Guidelines, stating that possessing child pornography is a “legitimate cause for concern” and that because there is no “definitive information” regarding whether a child pornography offender poses a physical threat to a child, defendants’ protests that they are not a threat are nothing more than a “self-serving argument.”
If there is no data on the risk posed by an offender or a group of offenders, what should be done? Concerns about public safety – especially the safety of children — seem to find far more purchase in the public debate than more abstract concerns about harm versus risk. But the academic in me worries that the rhetoric in favor of tough sentencing to promote safety may be too effective. As UNC’s Joseph Kennedy recently said: “Future dangerousness is too dangerous as a sole basis for incarceration because it appeals too directly to our deepest, strongest, and potentially most violent instinct — self preservation.”
Concerns about safety seem to be one of the major catalysts behind recent legislative sentencing increases for possession of child pornography. And as I am currently writing on those increases, I imagine that the issue of future dangerousness will occupy me for much of the rest of the summer.
Posted by Carissa Hessick on July 7, 2009 at 06:31 PM
Comments
Carrissa,
I agree that American punitiveness is largely about future dangerousness rather than retribution (although many people would not differentiate these). You’ve hit on precisely the real problem with allowing populist punitiveness of this sort to influence prison sentences. If the result is feared enough (murder, rape, child abuse) is there any level of risk the public would voluntarily take? In California that has led our governors to routinely reverse parole grants to convicted killers in their 70s and 80s who served thirty years or more in prison.
Posted by: Jonathan Simon | Jul 9, 2009 11:29:56 AM
Carissa,
I wonder about the underlying motives of some of these laws.
Does recommission of crime deserves a harsher punishment because the guilty committed a crime previously, leaving aside the possibility of future dangerousness? (E.g., multipliers.) Are there jurisdictions in which a sentence for a later crime, even if not one of a dangerous nature, is lengthened for commission of an earlier crime?
I also wonder about the potential for instrumentalization of a person because of a certain crime. In other words, a criminal receives a longer sentence because of being a member of a certain class – s/he is not judged based on personal dangerousness, but because society has deemed him or her to be dangerous because of being a statistic – removal of the dignity of the criminal, so to speak.
–Jonathan
Posted by: Jonathan | Jul 8, 2009 10:59:04 AM