Punishment and Crime

January 25, 2018
Posted by Jay Livingston

When a criminal case is front-page news, the sentence matters not for its effect on the criminal but for its effect on the rest of us. As I said (here) about the Stanford swimming team rapist, punishment is not about crime.

The headlines in the local papers this morning confirm this idea.

What’s important about the sentence and the judge’s statement is that they express a collective outrage at Nassar. Nobody seriously expects the sentence to have any deterrent effect on other potential criminals. Nor was the sentence necessary to keep Nassar from further crimes. Federal courts had already sentenced him to sixty years for kiddie porn. The purpose of the sentence is to allow the rest of us to feel good. That function of sentencing marches under the banner of “retribution” or sometimes “justice.” But it might just as well be called “vengeance.”

The headlines also make it clear that this same motivation is the basis for sentiments favoring the death penalty. Proponents may talk about deterrence and saving lives, but their real argument is the moral one – that the criminal is so evil that he (almost always he, rarely she) does not deserve to live. But it’s not the criminal’s death per se that they want. The criminal who commits suicide or dies of illness has “cheated” us of our chance for vengeance. (See this 2006 post, “Cheating the Executioner.”)

We want the strongest expression of our moral outrage – and that is a sentence of death. Anything less will not do. So even though Nassar’s crimes were not capital offenses, the judge pretended that she was handing down a death sentence. Predictably, “death warrant” was the part of her statement that the newspapers ran in the headlines. Even the sedate New York Times had the money quote in a subhead, after “Gymnasts’ Abuse Draws Sentence Likely to Be Life.”

In these celebrated cases, what’s important then is the judge’s pronouncing the sentence. Whether the sentence is actually carried out usually escapes notice. Most people sentenced to death are not executed, and for the few who are, the execution comes so many years later that the crime has been all but forgotten. Go back to a case of a few years ago, a case where prosecutors and the much of the general public claimed that the only way to achieve justice was to execute the convicted person. Ask people if that criminal is still alive. Most will not know, and most will not care enough to bother to find out. The moment of truth was the handing down of the sentence. What happens later doesn’t count much on ledger of moral sentiments. There are exceptions – Charles Manson was never going to be paroled – but they are just that, exceptions