It’s All About Sentencing

Today’s post is all about sentencing. This is the crucial piece of our work.  As highlighted in yesterday’s post: criminal justice policies, and not crime rates, are the prime drivers of changes in prison populations.

It’s election season and we hope that you attend candidate debates or coffee hours and ask candidates where they stand on mandatory sentencing, shipping our people to private prisons, and if they support inviting corporate prison profiteers into Hawai`i in response to the department’s prison proposal.

We’ll start off with what some other states are doing:

Candidates back reform of drug sentencing guidelines
Michael Norton and Andy Metzger, The Lowell Sun, Sept. 2, 2014

“BOSTON — Candidates for major offices this year in Massachusetts are backing the repeal or reform of mandatory minimum criminal sentences for drug offenses, according to a report released Tuesday. …

“‘No candidate was in favor of longer mandatory minimum sentences or additional mandatory minimum sentences for drug offenses,’ the group wrote in its report, released just over a week before the Sept. 9 primary elections.”

If we truly want change, we MUST hold candidates’ feet to the fire. Don’t let them wiggle out of responding!

Rethink sentencing and parole to solve aging, costly prison population
The Post and Courier, Sept. 2, 2014

“The term “life in prison” is easy enough to understand when it is handed down as a sentence in a courtroom. But after the courtroom drama subsides, Corrections Department officials must face the realities of feeding, housing and caring for criminals who will spend decades in prison.

 “For many, the sentences are a just and fair punishment. Often, they are also necessary to keep the public safe.

“But some who will spend their lives behind bars must do so because of overly severe mandatory sentencing laws….”

This is South Carolina, folks…tea party country. It is pretty scary when they show more compassion than Hawai`i.


Rational Criminal Addictions
Manuel A. Utset, Florida State University College of Law, August 28, 2014, 41 pages

This article argues that repeated criminal misconduct, at least in some areas, has the characteristics of a habit or addiction. Curiosity or a transient attraction can lead an offender to commit her first crime. This first infraction will give her a sense of how much she enjoyed it, and whether she has the talent, and stomach, to continue down a path of repeated misconduct. If the feedback is sufficiently positive, the offender may commit a second crime, and possibly a third. At some point, the offender will find herself with the opportunity to commit yet another crime, and realize that the immediate disutility of stopping, of going back into a life as a law-abiding citizen, is too great: she may find that the immediate disutility of foregoing a criminal opportunity is too high. Once the habit takes hold, the offender may continue to commit crimes, even if doing so leads her to suffer large aggregate negative internalities. An offender is thus “addicted to criminal misconduct” if her previous history of misconduct increases the marginal utility of committing a crime in the current period by a sufficient amount; that is, if the immediate disutility from stopping has reached a cut-off point, such that she violates the law notwithstanding the fact that but-for the addiction she would have obeyed the law. The addicted criminal trades off the heightened immediate disutility from obeying the law against the reduction in total utility due to the negative internalities—including expected sanctions. After setting forth the rational criminal addiction theory, the article develops a number of legal implications that follow from the theory.


This article extends the standard law and economics account of criminal misconduct by allowing for offenders who become rationally addicted to criminal misconduct, and using this very fact to explain the decision-making process of career and habitual criminals. Of course, not all repeat offenders are addicted to criminal misconduct; in some instances each act of misconduct is independent of the other. The crimes of an episodic repeat offender can be analyzed using the standard approach, given that if we understand one instance, we understand all of them. Even when a series of crimes are interconnected, an offender will become addicted only if committing a crime in the current period increases the marginal benefits from re-offending in the following period. However, one can imagine cases in which past misconduct reduces the marginal utility of re-offending. For example, a youth may engage in a series of crimes and find out, after a while, that that the thrill is gone. Or a repeat offender may decide to stop because, given her past history, offending in the current period will increase the risk of detection, or the aggregate expected sanctions given all her previous crimes. Moreover, an offender may engage in repeated misconduct that produces negative internalities, not because she is addicted but because of systematic, but independent rationality mistakes.

That notwithstanding, some repeat offenders exhibit the standard characteristics of addicts in other areas, and thus it becomes important to understand the underlying dynamics. For one thing, the idealized rational offender of the standard law and economics account behaves very differently than a crime-addict—even a “rationally addicted” one. There is a second caveat to keep in mind. Even if one can show that a significantly large subset of the repeat offender comprises crime addicts, it does not necessarily follow that society has to intervene to rectify the problem. Moreover, in a world populated by episodic and addicted repeat offenders, a lawmaker has to take into account how changes in criminal sanctions or enforcement practices can have a negative spillover effect  on the episodic criminal population. However, the theory developed in this article helps why repeat offenders get penalized  more harshly, something that the standard account can not explain. It also helps explain the repeated ratcheting-up of criminal sanctions in certain areas to deal with perceived deterrence shortfalls. Under the standard account, a lawmaker should ratchet-up criminal sanctions only if she discovers the harm caused by the outlawed behavior is greater than originally believed. Finally, the theory provides new explanations for why society spends so much on enforcement and why it incapacitates offenders  who have sufficient wealth to optimal criminal fines.

We know that sentencing is a big driver of the prison population. Let’s work to return discretion to the Judiciary. No more closed-door, backroom deals by unaccountable prosecutors. We need everyone’s help to do this.

Mahalo for caring about justice and for remembering all our people serving sentences near and far…


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