Crime and Punishment in American History - Lawrence M. Friedman [262]
The case also illustrates how dangerous it is to remove discretion from sentencing. After 1950, as the crime rate escalated and fear of crime became the dominant force pushing policy in criminal justice, there were many attempts to impose stiff, mandatory sentences: use a gun, go to jail; sell a drug, go to jail, and so on. The most extreme, perhaps, was the New York drug law, which Governor Nelson Rockefeller pushed through in 1973. It called for very stiff, and mandatory, minimum sentences for drug offenses; the maximum was life imprisonment. Some restrictions on plea bargaining were built into the law. It was so harsh that even prosecutors and the police were aghast and opposed the bill; but to no avail. In practice, the law was an expensive and dismal failure. It did not solve the drug problem; it led to major injustices (extreme sentences imposed on small fry); and it nearly wrecked the system of criminal justice—or would have, if it had been carried out as designed. The law turned into an embarrassment, and the legislature, in essence, got rid of it in 1979.94 But the very fact that such a law could be passed, and touted as a cure of the ills of the system, was a definite sign of the times.
The movement to reform sentencing was connected, politically and ideologically, with the movement that blasted away at indeterminate sentencing and parole. Nobody seemed to like the American sentencing system. It was, on the one hand, too flabby, and on the other hand, awfully unjust. Sentencing seemed to be totally irrational. It depended on the whims of the judge. Two people who had committed the “same crime” could receive wildly different sentences. The judge had “blank-check powers”; these powers, according to Judge Marvin Frankel, formed the “central evil” of the system—a “wild array of sentencing judgments without any semblance of the consistency demanded by the ideal of equal justice.”95 Some felt that this situation “fostered undue optimism among offenders who hoped to ‘beat the rap,’” or that it “undermined deterrence and crime control objectives.” Meanwhile, the “disparities fed prisoner resentment and impeded rehabilitation.”96 Evidence could be mustered to support some of these propositions, but it was hardly overwhelming.
Certainly, sentencing reform did not respond to any deep public yearning for justice; there was no outcry from the masses against disparities in sentencing; no major interest group stood foursquare for the principle that like must be treated like. The precise reforms came out of the academy and the profession. A good deal of the academic impulse was benign—part of the search for fairness, for due process. But it seems clear that the success of the academic efforts depended on something deeper, more subterranean. General dismay over crime, and the (apparent) failure of criminal justice, lent force to any change that promised to toughen up the system. In any event, firm, immovable sentences seemed like a step in the direction of “law and order,” as well as a step toward justice. This was a potent political combination.
Minnesota established a special sentencing commission in 1978, charged with producing “guidelines.”97 In due course, the guidelines appeared and the state gave them its stamp of approval. Under the Minnesota scheme, the judge consulted a complex grid, or matrix, in order to figure out a defendant’s “score.” One dimension of the grid was the nature of the crime itself, ranked from the truly awful, like murder, down to less serious crimes. Another dimension of the grid was the defendant’s “criminal history score,” which meant, essentially, whether or not he was a repeater. Once the judge shoved the defendant into the right cell of the matrix, she could either give him the “presumptive sentence” or vary it a bit—that is, make it a shade tougher or more lenient. But