Skip to main content
SpringerLink
Log in

Lowering the Boom: A Brief for Penal Leniency

  • Original Paper
  • Published:
Criminal Law and Philosophy Aims and scope Submit manuscript

Abstract

This paper advocates for a general policy of penal leniency: judges should often sentence offenders to a punishment less severe than initially preferred. The argument’s keystone is the relatively uncontroversial Minimal Invasion Principle (MIP). MIP says that when more than one course of action satisfies a state’s legitimate aim, only the least invasive is permissibly pursued. I contend that MIP applies in two common sentencing situations. In the first, all sentences within a statutorily specified range are equally proportionate. Here MIP applies directly. In the second, judges reasonably believe that one of the sentences within the range is the most proportionate, but can’t identify it with any certainty. In these cases of sentencing uncertainty, judges must be indifferent between their preferred sentence and a softer one, and this indifference triggers MIP. MIP thus frequently mandates some degree of leniency. I conclude with some comments on statistical uncertainty.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Morris and Frase identify as “limiting retributivists” rather than orthodox consequentialists. For them, sentencers should strive to achieve both consequentialist and retributivist goals. However, their arguments for leniency stem from consequentialist concerns, as I discuss in Sect. 2.1 below.

  2. I develop an argument for leniency for black offenders in Yost (2021).

  3. I borrow this moniker from Hugo Adam Bedau (2002), although my characterization of the principle differs slightly.

  4. I have in mind alternative policies or courses of action that have the same chance of achieving a given aim. But MIP applies a forteriori when two different options have different chances of achieving a given aim and the less invasive option is likelier to achieve that aim.

  5. My view extends to fines as well as custodial sentences, but I will focus on the latter.

  6. Whenever a judge possesses confidence in the proportionality of a range, the candidate sanctions will not be spaced too far apart. If a very wide range is pinned to a specific offense, say probation to twenty years in prison for aggravated battery, it will include disproportionately lenient and/or disproportionately severe punishments. Confidence in the range will thus be unjustified. In a proportionate range, by contrast, the gaps between the candidate sanctions are relative to the absolute severity of the sanctions. Federal sentencing guidelines acknowledge this condition: “if a sentence specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment”; see 28 U.S.C. § 994(b)(2). So while the gaps between sentences of 51, 51.5, and 52 years are larger that those between sentences of 11, 12, and 13 months, the range is appropriately spaced and bounded. (As a general rule, the distance between the bottom and top of the range will be wider, in an absolute sense, the more severe the offense; the range for second-degree murder is likely denominated in years, while the range for misdemeanor assault in weeks).

  7. The difference between the two paths towards sentencing ranges can be clarified by noting that the epistemic route is compatible with the conviction that every offense is associated with one truly proportionate sanction graspable by a godlike sentencer, while the vagueness route is not.

  8. A detailed exposition of this view can be found in Yost (2019). George Schedler (2011) and Göran Duus-Otterström (2013) offer alternative arguments for generalized leniency, although these suffer from the shortcomings identified in Yost (2019).

  9. Before U.S. v Booker was handed down in 2005, these guidelines were mandatory in federal jurisdictions; post-Booker they are merely advisory. For an example of such a scheme, see https://www.ussc.gov/guidelines/2018-guidelines-manual/2018-chapter-5. Some states have “indeterminate” sentencing systems. In an indeterminate scheme, a sentence of 5 to 15 years means that parole eligibility begins in the fifth year. In determinate schemes, a sentence has a fixed duration, selected from within a range. To simplify, I will assume a determinate scheme.

  10. This paper will discuss trials by jury, but my argument applies, mutatis mutandis, to bench trials as well. In the latter, judges are finders of fact.

  11. Shafer-Landau argues that the vagueness of desert means that there is no fact of the matter about what an offender deserves, owing to second-order vagueness (2000). Kramer defends retributivists from the implications of this view (2011: 120–122).

  12. Frase develops the principle of parsimony into what he calls the “alternative means” principle of proportionality (2020: 105–6).

  13. I take this way of drawing the distinction from Duus-Otterström (2013: 469 n23).

  14. There is much disagreement about how this works. For simplicity’s sake, I will adopt the view that the standard of proof states the level of justification (in light of the currency of justification, whatever it may be) needed to affirm the proposition full stop. So on the preponderance of the evidence standard, a juror’s categorical belief about a disputed issue needs less justification than on other standards. This is roughly Ho’s view (2008: 229 et passim).

  15. Walen (2015) has an interesting discussion of the history and normative underpinnings of the beyond a reasonable doubt standard. Laudan (2006) sorts through the normative desiderata of a standard of proof in general.

  16. Pardo (2010) offers a helpful overview of this interesting and vexatious debate.

  17. This is a more complicated matter than I am letting on. One might adopt a subjectivist view according to which internal epistemic justification is required. Accordingly, finders of fact would be blameworthy if their confidence was based on defective reasoning. On a purely subjectivist view, by contrast, finders of fact would be blameworthy only if their verdict failed to match their beliefs.

  18. This list might not be exhaustive, but I do think it captures the main types.

  19. Owing to the probability axiom of finite additivity.

  20. I am not suggesting that the line is arbitrarily drawn. The judge has reason to draw it somewhere, given her lower credence in sentence1, and indifference cannot bully her into doing otherwise. She might be unsure where to draw the line between sentence1 and sentence2, or how close to approach sentence1, but she will not select sentence1 itself, given her credence distribution.

  21. Imagine a judge is considering sentences of 25, 30, or 35 years. She might settle on a sentence of 28 years. This two year reduction is more significant in absolute terms than MIP would demand in the aggravated battery example.

  22. This worry could also be expressed in terms of a divergence from expected utility, though my response would remain the same.

  23. I.e., something along the lines of .05(sentence1), .8(sentence2), .05(sentence3).

  24. Davis and Leo (2012) discuss the tactics involved. Basically, investigators present the accused with fabricated evidence of his guilt, induce a dissonance between his belief in his innocence and his belief in the investigators’ truthfulness, then suggest to him that she suffered momentary unconsciousness or is repressing the memory.

  25. This type of statistical uncertainty could be virtually eliminated by videotaping interrogations and confessions.

  26. For more on this point, see Yost (2021).

  27. Matters are likely much the same at the state level. See, for example, the Sarasota Herald-Tribune’s county-level investigation of sentencing patterns in Florida (Salman, Coz et al. 2016).

  28. Consider, for example, our penchant for sentencing nonviolent offenders to sentences of life without parole (2013). It seems to me that a legal system willing to waste human lives in recompense for trivial crimes such as possessing a crack pipe, selling $10 of marijuana, and siphoning gasoline from a truck should be seen as putting its entire fist on the side of severity.

  29. Which implies that she has a .19 credence in the proposition that the sentencing range is disproportionate.

  30. This problem is a complex one, and I am presenting a rough sketch for the purposes of brevity.

  31. A caveat: in federal court, judges may, at sentencing, consider conduct for which a defendant has been acquitted by a jury, so long as consideration of this conduct does not raise the statutory range of the offense and so long as the conduct is demonstrated by a preponderance of the evidence. For more, see Foster (2018).

  32. Pursuant to California’s three-strikes law, Leo Andrade was sentenced to two consecutive terms of twenty-five years to life for stealing $150 worth of videotapes; his penalty surpassed those imposed on most rapists and many murderers. The Supreme Court declined to vacate his sentence, holding that a fifty-years-to-life term for what would otherwise be a misdemeanor theft is not cruel and unusual punishment (2003).

  33. Prosecutors have virtually absolute, unreviewable discretion to determine charges for the accused, and in virtue of political and professional incentives, more frequently overcharge than undercharge.

  34. I want to thank a reviewer for pressing me to clarify this point.

  35. Morris’s principle of parsimony dictates the same outcome, though for different reasons.

References

  • Lockyer V. Andrade. 538 U.S. 63. U.S. Supreme Court, 2003.

  • (2013). “A Living Death: Life without Parole for Nonviolent Offences.” Retrieved January 24, 2014. https://www.aclu.org/criminal-law-reform/living-death-life-without-parole-nonviolent-offenses-0.

  • Bedau, Hugo (2002). “The Minimal Invasion Argument against the Death Penalty.” Criminal Justice Ethics 21 (2): 3-8.

    Article  Google Scholar 

  • Davis, Deborah and Richard A. Leo (2012). “Interrogation-Related Regulatory Decline: Ego Depletion, Failures of Self-Regulation, and the Decision to Confess.” Psychology, Public Policy, and Law 18 (4): 673-704.

    Article  Google Scholar 

  • Duff, R. A. (2001). Punishment, Communication, and Community. New York: Oxford University Press.

    Google Scholar 

  • Duus-Otterström, Göran (2013). “Why Retributivists Should Endorse Leniency in Punishment.” Law and Philosophy 32 (4): 459-483.

    Article  Google Scholar 

  • Foster, Michael. Judicial Fact-Finding and Criminal Sentencing: Current Practice and Potential Change: Congressional Research Service, 2018.

  • Frase, Richard (1997). “Sentencing Principles in Theory and Practice.” Crime and Justice 22: 363-433.

    Article  Google Scholar 

  • Frase, Richard (2004). “Limiting Retributivism.” The Future of Imprisonment. Ed. Michael Tonry. Oxford: Oxford University Press: 83–119.

  • Frase, Richard (2012). Just Sentencing: Principles and Procedures for a Workable System. New York: Oxford University Press.

    Book  Google Scholar 

  • Frase, Richard (2020). “Punishment Purposes and Eighth Amendment Disproportionality.” The Eighth Amendment and Its Future in a New Age of Punishment. Eds. Meghan J. Ryan and William W. Berry Iii. Cambridge: Cambridge University Press: 101–117.

  • Hestevold, H. Scott (1983). “Disjunctive Desert.” American Philosophical Quarterly 20 (4): 357-363.

    Google Scholar 

  • Ho, Hock Lai (2008). A Philosophy of Evidence Law: Justice in the Search for Truth. New York: Oxford University Press.

    Book  Google Scholar 

  • Kramer, Matthew (2011). The Ethics of Capital Punishment: A Philosophical Investigation of Evil and Its Consequences. Oxford: Oxford University Press.

    Book  Google Scholar 

  • Laudan, Larry (2006). Truth, Error, and Criminal Law: An Essay in Legal Epistemology. Cambridge: Cambridge University Press.

    Book  Google Scholar 

  • Leo, Richard A. (2009). “False Confessions: Causes, Consequences, and Implications.” Journal of the American Academy of Psychiatry and the Law Online 37 (3): 332.

    Google Scholar 

  • Lewis, Christopher (2016). “Inequality, Incentives, Criminality, and Blame.” Legal Theory 22 (2): 153-180.

    Article  Google Scholar 

  • Morris, Norval (1974). The Future of Imprisonment. Chicago: University of Chicago Press.

    Google Scholar 

  • Morris, Norval and Michael Tonry (1990). Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System. New York: Oxford University Press.

    Google Scholar 

  • Pardo, Michael S. (2010). “The Gettier Problem and Legal Proof.” Legal Theory 16 (1): 37-57.

    Article  Google Scholar 

  • Rehavi, M. Marit and Sonja B. Starr (2014). “Racial Disparity in Federal Criminal Sentences.” Journal of Political Economy 122 (6): 1320-1354.

    Article  Google Scholar 

  • Salman, Josh, Emily Le Coz, et al. Florida's Broken Sentencing System. Sarasota, FL: Sarasota Herald-Tribune, 2016. http://projects.heraldtribune.com/bias/sentencing.

  • Schedler, George (2011). “Retributivism and Fallible Systems of Punishment.” Criminal Justice Ethics 30 (3): 240-266.

    Article  Google Scholar 

  • Scheid, Don (1995). “Davis, Unfair Advantage Theory, and Criminal Desert.” Law and Philosophy 14 (3/4): 375-409.

    Article  Google Scholar 

  • Shafer-Landau, Russ (2000). “Retributivism and Desert.” Pacific Philosophical Quarterly 81 (2): 189-214.

    Article  Google Scholar 

  • Shelby, Tommie (2016). Dark Ghettos: Injustice, Dissent, and Reform. Cambridge: Harvard University Press.

    Book  Google Scholar 

  • Tadros, Victor (2009). “Poverty and Criminal Responsibility.” Journal of Value Inquiry 43 (3): 391-413.

    Article  Google Scholar 

  • Walen, Alec (2015). “Proof Beyond a Reasonable Doubt: A Balanced Retributive Account.” Louisiana Law Review 76: 355-445.

    Google Scholar 

  • Yost, Benjamin S. (2019). Against Capital Punishment. New York: Oxford University Press.

    Book  Google Scholar 

  • Yost, Benjamin S. (2021). “Sentencing Leniency for Black Offenders.” The Movement for Black Lives: Philosophical Perspectives. Eds. Brandon Hogan, Michael Cholbi, Alex Madva and Benjamin S. Yost. New York: Oxford University Press: 218–238.

Download references

Acknowledgements

I want to thank Brian Talbot and this journal’s anonymous reviewers for their very helpful comments.

Author information

Authors and Affiliations

  1. Sage School of Philosophy, Cornell University, Ithaca, NY, 14853, USA

    Benjamin S. Yost

Authors
  1. Benjamin S. Yost
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Benjamin S. Yost.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Yost, B.S. Lowering the Boom: A Brief for Penal Leniency. Criminal Law, Philosophy 17, 251–270 (2023). https://doi.org/10.1007/s11572-021-09609-1

Download citation

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11572-021-09609-1

Keywords

Search

Navigation