Standing winecup and clouds

On July 23rd in the dedicated little wildflower area at the Floral Park entrance to Great Hills Park I made some portraits of standing winecups, Callirhoe digitata, yet another member of the botanical family that has featured prominently here in recent posts, the Malvaceae, or mallow family. I’m fond of portraits in which a wildflower seems to be soaring above the clouds, as in this case. For that perspective I get down close to or actually on the ground.

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For as long as I can remember, I’ve believed that our legal system should treat similar things similarly. (Don’t you believe that, too?) For example, it never made sense to me that adults could legally drink alcohol but not smoke marijuana, especially since drinking large amounts of alcohol causes much more damage to individuals and society than consuming large amounts of marijuana. Of course use of either drug entails responsibility: no one should drive drunk or high. According to the National Conference of State Legislatures, “Driving under the influence of drugs (DUID) appears to be a growing factor in impaired-driving crashes,” and some jurisdictions are considering drugged-driving laws that would be on a par with drunk-driving laws, now that increasingly many states have been legalizing marijuana.

I bring up my longstanding belief that the legal system should treat similar things similarly because I recently started reading the 2021 book Noise, by Daniel Kahneman, Olivier Siboney, and Cass R. Sunstein. Daniel Kahneman, 2002 Winner of the Nobel Prize in Economic Sciences, is the author of Thinking Fast, Thinking Slow, which I read several years ago and recommend to you. Olivier Sibony “is a professor, author and advisor specializing in the quality of strategic thinking and the design of decision processes.” Cass R. Sunstein is a professor at the Harvard Law School and the author of various books.

Early in the new book Noise comes a consideration of the sentences meted out to people convicted of similar crimes. In the book’s parlance, such sentences have been “noisy,” meaning they’ve shown undesirably large variation. The book points out that as far back as 1973 Judge Marvin Frankel drew attention to the disparities in sentencing for similar crimes. As a result, a study was done in 1974: “fifty judges from various districts were asked to set sentences for defendants in hypothetical cases summarized in identical pre-sentence reports. The basic finding was that ‘absence of consensus was the norm’ and that the variations across punishments were ‘astounding.’ A heroin dealer could be incarcerated for one to ten years, depending on the judge. Punishments for a bank robber ranged from five to eighteen years in prison. The study found that in an extortion case, sentences varied from a whopping twenty years imprisonment and a $65,000 fine to a mere three years imprisonment and no fine. Most startling of all, in sixteen of twenty cases, there was no unanimity on whether any incarceration was appropriate.”

Studies in subsequent years found similar disparities. In 1984 the U.S. Congress, responding to those studies, passed the Sentencing Reform Act. The law “created the US Sentencing Commission, whose principal job was clear: to issue sentencing guidelines that were meant to be mandatory and that would establish a restricted range for criminal sentences.” A later study compared sentences for certain offenses in 1985, under the old system, with those in 1989 and 1990, under the new system. “For every offense, variations across judges were much smaller in the later period, after the Sentencing Reform Act had been implemented.”

It will probably come as no surprise to you that in spite of the much better uniformity in sentencing that was documented after the guidelines created by the US Sentencing Commission went into effect, many judges complained that they could no longer adequately take account of the particulars in individual cases. “Yale law professor Kate Stith and federal judge José Cabranes wrote that ‘the need is not for blindness, but for insight, for equity,’ which ‘can only occur in a judgment that takes account of the complexities of the individual case.'” In 2005, the United States Supreme Court struck down the obligatory guidelines; they became “merely advisory.” The authors of Noise note that “seventy-five percent of [federal] judges preferred the advisory regime, whereas just 3% thought the mandatory regime was better.”

The result was what could be expected. Harvard law professor Crystal Yang investigated, gathering the data for almost 400,000 criminal defendants. Her study found that in comparison with sentences under the obligatory regime, the disparity in sentencing doubled under the advisory regime. “After the guidelines became advisory, judges became more likely to base their sentencing decisions on their personal values… After the Supreme Court’s decision, there was a significant increase in the disparity between the sentences of African American defendants and white people convicted of the same crimes… Three years after [Judge] Frankel’s death in 2002, striking down the mandatory guidelines produced a return to something more like his nightmare: law without order.” So much for “equity.”

© 2021 Steven Schwartzman