Monday, May 05, 2008

Sentencing in Europe and the U.S.

Austrians are currently agonizing over whether the maximum sentence of 15 years for Josef Fritzl---the man who kept his daughter captive in a windowless, sound-proof vault for 24 years, fathering 7 children by her---is sufficient punishment for such monstrous crimes. As a practical matter, the answer is probably yes. Fritzl is currently 73, and so, based on the most recent Austrian life-expectancy data, a 15-year sentence is more likely than not a life sentence. It's very much more likely than not a life sentence if Fritzl is convicted of "murder through failure to act" in connection with the death of one of the children his daughter bore him. That crime carries a potential 20 year sentence.

I strongly suspect, however, that Austrians are not so much outraged at the small possibility that Fritzl might emerge from prison at 88 or 92 and commit further crimes. Rather, the worry is over the apparent inadequacy of the moral condemnation expressed by a 15 or 20 year sentence.

That's not to say there is no practical dimension to too-lenient sentences---even in this case. According to Fritzl's sister-in-law, he had previously served time for a 1967 rape conviction. How much time? 18 months. A substantially longer sentence for that earlier offense might well have eliminated Fritzl's opportunity to commit the rapes of his daughter or, after his release, might even have specifically deterred him (although the recidivism rate for sexual offenders is high even in the U.S., with its much more substantial sentences).

Here in the U.S., we generally have the opposite problem: Too many people in prison for too long. As a recent NY Times story reported, over one percent of the adult population in the United States is in prison or jail. One in nine black men between the ages of 20 and 34 is incarcerated!

Does the juxtaposition of the Fritzl case and the bursting-at-the-seams story of American incarceration show that you're damned if you do, damned if you don't? Must societies either under-incarcerate or over-incarcerate? Almost certainly not. Seen properly, these are not tradeoffs but the same problem: In both Europe (in cases like Fritzl's) and in the United States (in large part, but not exclusively, as a consequence of the disastrous war on drugs), we have a failure to make the punishment fit the crime.

Posted by Mike Dorf


Patrick S. O'Donnell said...

Should readers provoked by the important topics raised in this post want to begin a systematic exploration of the subject matter they might find my bibliography, "Criminal Law, Punishment & Prisons" useful. It is posted over at the Ratio Juris Blog:

And if you have suggestions for additional references please let me know by e-mail or in the comments there.

CEP said...

I'm not sure that's the right question. One doesn't punish a murder, or a joint used for medical purposes; one punishes the person who murders, or who uses medical marijuana. Certainly, the nature of the crime should have a significant, and perhaps even dominant, influence on the penalty imposed (after appropriate due process, of course). However, ignoring the particular nature of the criminal — that is, ignoring the context — leads to resulting punishments that don't perform their functions. It's even worse when the preconceptions of whether a particular offense is "worse" than another are based upon either WAGs or bigotry, as in the crack-to-powder-cocaine discrepancy in the Guidelines.

I spent far too long as a commanding officer (prosecutor, judge, jury, and executioner) before law school to have any illusions that rigid guidelines based solely upon the offense committed work. It seems to me that there's an opportunity for some empirical research there, presuming one can overcome the privacy issues.

Michael C. Dorf said...

To be clear, I wasn't taking a position on the question of how much sentencing discretion the judge (or other sentencer) should have. I take the objection of Austrians to be an objection to the fact that Fitzel can't even POSSIBLY be given a sentence of greater than 15 or 20 years.

Sobek said...

"Here in the U.S., we generally have the opposite problem: Too many people in prison for too long. As a recent NY Times story reported, over one percent of the adult population in the United States is in prison or jail. One in nine black men between the ages of 20 and 34 is incarcerated!"

Statistics about the number of people who are currently in jail say nothing about how long the sentences are.

Sobek said...

I read a story today about a German woman who murdered eight or nine of her own children, and was sentenced to a whopping 15 years. That'll teach her an important lesson.

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