Disproportionate Sentences are Morally Equivalent to Wrongful Convictions

Imagine a first-time offender is arrested for selling 35 hydrocodone pills, and sentenced as a “drug trafficker” to a mandatory minimum 25 years in prison. Assume that the maximum just sentence for this offense is 15 years.

Now, imagine a person with no other criminal record is convicted of a robbery he didn’t commit, and sentenced to 10 years in prison. The just “sentence” here is obviously zero years; any punishment imposed on an innocent person is unjust, by definition.

Imagine the innocent person enters prison on the first day of the drug offender’s 16th year of incarceration. Both the innocent person and the drug offender will serve the next ten years in prison. At this point, what is the moral difference between the two cases? I say none.

This might not be intuitively obvious, so let’s break it down.

It is immediately obvious that the innocent person doesn’t deserve to spend even one day in prison, let alone ten years. But what about the drug offender? That person broke the law! Surely that is enough to distinguish the cases.

Well, yes and no.

There is clearly some relevant moral distinction between an innocent person and a person who chooses to break the law. Most notably, by choosing to break the law, the lawbreaker invites just punishment, whereas, again, there is no such thing as just punishment of an innocent person. (Assume for this purpose that the law that was broken was itself just.)

But the fact that a person broke the law only creates the justification for some punishment. It doesn’t create the justification for any punishment. For example, the Eighth Amendment to the U.S. Constitution prohibits “cruel and unusual punishments.” But setting aside whether the Eighth Amendment sets constitutional limits on how severely the state may punish some proscribed conduct — there are good originalist reasons to believe it does — sensible morality clearly does. (Rather than rehearse the arguments in defense of proportionality, just ask how you’d respond if the state began executing people for jaywalking.)

The view that proportionality is a necessary element of just punishment implies at least two things: first, that there is such a thing as a disproportionate punishment; second, that disproportionate punishments are unjust. Of course, identifying that the category “disproportionate punishments” exists is not the same thing as identifying the characteristics that would place a given punishment into that category. But it does mean that it begs the question to assume that any punishment imposed is by definition just. One needs also to show that the punishment is proportionate. That, in turn, requires appealing to something more than the fact that the sentence imposed was legal.

Determining whether a criminal sentence is proportionate requires analyzing both the retributive and consequential justifications for punishment. A harsh sentence might be justified on retributive grounds for a person convicted of first-degree murder, even though a low risk of recidivism might mean the sentence would not be justified on consequentialist grounds. Similarly, while retributivism alone might be insufficient to justify a harsh sentence for a relatively minor offense, such a sentence might nevertheless be justified on consequentialist grounds if that offense is the latest in a long series of offenses for which the offender has been given chance after chance after chance, and the offender’s risk of recidivism remains high. Or, a harsh sentence might be justified on both grounds, as it would be for, e.g., a serial rapist. Lastly, a harsh sentence might not be justified on either retributive or consequentialist grounds, as in cases of, e.g., jaywalking, or failure to wear a seat belt.

It’s impossible to run this analysis ex ante for every conceivable set of actions that might run afoul of the criminal code. And even when we can plausibly set reasonable ranges for paradigm examples of an offense, those ranges break down at the fringes, where behavior still technically meets the elements of an offense, but otherwise doesn’t match reasonable intuitions about what that crime “is.” This is why we hire judges, of course. They know the law, they know the facts of the case, and we trust them to exercise their judgment and impose appropriate sentences.

And even judges won’t get it right every time! As I wrote in this letter to the New York Times:

Under any conceivable sentencing scheme, some sentences will shock the conscience for leniency, others for severity. Similarly situated defendants will receive disparate sentences, and disparate defendants will receive similar sentences. These outcomes are unavoidable.

Sentencing policy should provide a framework that minimizes errors . . . Judges should be free to make decisions after considering all relevant information, and communities are entitled to transparency and accountability for those decisions.

Let’s revisit our example above.

In our hypothetical, a first-time offender was sentenced to 25 years in prison for selling 35 hydrocodone pills. Again, without knowing all of the relevant circumstances, it’s impossible to know what the maximum sentence consistent with the proportionality principle is. For sake of argument, we stipulated that the maximum just sentence for that offense — i.e., the maximum sentence that takes into account all of the relevant circumstances, including proportionality, and remains consistent with justice — is 15 years. In other words, the drug offender will be held in prison for ten years beyond what justice allows.

This is exactly the same moral problem with sentencing an innocent person to ten years in prison. In both cases, people are incarcerated for ten years longer than justice allows. As Will Wilkinson noted in this great piece,

To lock someone in a cage is to strip him of all liberty . . . If someone commits a crime that merits five years in prison, but is kept in captivity for ten, then five years of his or her life have been unjustly stolen in much the same way that the life of a kidnapping victim, locked away for five years in a basement, has been stolen.

Crime creates injustice, but when it incarcerates the innocent, or keeps prisoners incarcerated longer than justice permits, the criminal justice system adds a second injustice.

One more thought experiment! Imagine it’s five years into the unjust portion of the drug offender’s sentence, which is also five years into the innocent person’s ten-year sentence. Two things happen. First, evidence is uncovered that conclusively establishes the innocence of the wrongfully convicted person. Second, the Legislature changes the law such that there is no longer a mandatory minimum sentence for selling 35 hydrocodone pills.

The wrongfully convicted person files a motion for his release. The drug offender files a motion for resentencing under current law, which, if granted, would allow her to be released, as well.

If you accept that the drug offender’s sentence was disproportionate and, by extension, unjust, what principle justifies granting the first, but denying the second? Would you deny the innocent person’s release because he might commit a crime upon release? If not, what principle justifies denying the drug offender’s release on those grounds? What principle requires the wrongfully convicted person’s release, but permits keeping the unjustly sentenced offender in prison?

This isn’t just an idle intellectual exercise. Right now, today, hundreds of people are incarcerated serving sentences that are no longer found in the law. Jomari DeLeon. Cynthia Powell. James Caruso. Erik Weyant. Hundreds more! As you sit with your families over Thanksgiving dinner this week, these people will remain in prison serving sentences so wildly disproportionate to their crimes that the Florida Legislature was actually moved to change the law.

The moment we discover an innocent person is incarcerated, we are rightly moved to fix that injustice, and we do so with all haste. But when we discover that hundreds of people are serving unjust sentences — deprived of all liberty, held in conditions that shock the conscience, and separated from their families — many find no moral obligation to relieve this undeserved suffering.

Search your conscience, and see if you can find a principle that justifies doing everything in your power to help the wrongfully convicted, but nothing at all for the unjustly sentenced.

Happy Thanksgiving!