SENTENCING DECISION CONTINUES MISTAKEN BELIEF THAT LONG SENTENCES DETER CRIME

Experts agree it’s the fear of being caught that deters crime, and not the severity and length of the punishment. Yet, judges continue to defy logic by imposing sentences on the faulty premise that this is what works to deter crime.

Take the case of United States v. Kimble, 2020 U.S. Dist. LEXIS 237529 (S.D. W.Va. Dec. 17, 2020), where the court imposed a sentence five times higher than what the U.S. Sentencing Guidelines called for in a drug case. The judge cited three of the sentencing factors under 18 U.S.C. sec 3553(a) to support the sentence: (1) to “deter others” from committing drug crimes, (2) to “promote respect for the law”, and (3) to “protect the public” from drug dealers like Kimble.

The judge’s statement at sentencing, though, was perhaps the most telling factor that influenced the five-fold upward variance:

We must deter the dealers who deal recklessly and with indifference to the consequences of what they do. Deadly consequences in the drug business do not require a movie-style bad guy. It only takes a 22-year-old kid recklessly — and with great indifference to human life — selling a stamp of what she may well have thought was heroin, a known controlled substance, but was in fact, fentanyl.

Given that the drugs Kimble sold were laced with fentanyl and someone died of an overdose because of this fact, it might seem like a “win” that she only got 5 years. But she wasn’t charged with that death and the judge rejected the presentence report’s recommended Guideline range of 168-210 months in prison, which improperly accounted for the death. Without consideration of the overdose death, Kimble’s sentencing range was only zero to 12 months.

Would another 4 years in prison really “deter” other drug dealers? Would it really “promote respect for the law?” NYU professor Rachel Barkow testified before Congress on June 17, 2021, saying that longer sentences don’t deter crime and could actually cause the opposite effect:

Let’s start with the assumption that long sentences deter crime. It is one of the more settled aspects of criminology that the best way to deter crime is by increasing the odds of detection, not by changing the length of the sentence. So if you have limited resources, you are better off spending them on mechanisms that improve detection and not increasing sanctions [prison sentences]. If people think they have a 70% chance of committing a crime without getting caught, sentence length will do little to deter. Long sentences themselves can be harmful to public safety because they undermine public confidence in criminal laws. People see disproportionate sentences and lose faith that the government is operating fairly and equitably. That, in turn, leads to reduced compliance with the laws themselves.

Professor Barkow should know whether longer sentences work or not: She’s also a former member of the U.S. Sentencing Commission. Maybe she should have a talk with some federal judges about the evidence she presented to Congress back in June. The fact is that longer sentences don’t deter crime.

Dale Chappell is a consultant and author on criminal law issues, with hundreds of published articles and several books on criminal justice, including Habeas Corpus for Federal Prisoners: An Insider’s Guide and Worse Than a Murderer: Doing Time as a Sex Offender, available at ZLG Publishing, Ltd.

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