Should Felons Decide What Sentences Felons Deserve?
Sentencing Law and Policy has this thought-provoking post urging President Biden to make filling Sentencing Commission slots a priority, and recommending — you’ll never guess — “diversity.” But it’s diversity of a notable kind. The post’s final paragraph tells the story in only slightly scrubbed language:
In his pioneering 1972 book, Criminal Sentences: Law Without Order, Judge Marvin Frankel first advocated for a “Commission on Sentencing” to include “lawyers, judges, penologists, and criminologists, … sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.” As Judge Frankel explained, having justice-involved persons on a sentencing commission “merely recognizes what took too long to become obvious—that the recipients of penal ‘treatment’ must have relevant things to say about it.” Judge Frankel’s insights remain ever so timely a half-century later, and the federal system can now follow a recent sound state example: Brandon Flood was appointed Secretary of the Pennsylvania Board of Pardons in 2019, not despite but largely because of his lived experience as an inmate and his numerous encounters with the criminal justice system. President Biden’s could and should consider going even further by including multiple persons with diverse, direct experiences with U.S. justice systems in his nominations to the U.S. Sentencing Commission.
What to make of the suggestion that the inmates should decide how long other inmates remain in the asylum?
It had previously been thought that living a decently law-abiding life, and thus showing respect for the property and safety of those around you, as well as an understanding of the need to obey the rules, was a minimum qualification for the Commission. Knowledge of the theory and legal standards of sentencing practice would be a plus, too.
It is not my purpose here to debate these old-fashioned qualifications — not because the debate would be unimportant, but because it would be useless. I don’t see any way that those who think a life of crime is a “plus” for a seat on the Sentencing Commission are going to get their minds changed at this point.
So instead, I’d like to explore the specifics of the diversity they seek. There are, after all, all manner of crimes, and it must be the case that those given to The New Way of Thinking believe that some crimes have more “educational value,” for sentencing purposes, than others. So I’m going to set out a list of crimes and invite readers to hold forth on which have the greatest value as qualifications for a seat on the Sentencing Commission.
— Child rape.
— Fleecing old people out of their life savings.
— Carjacking in which a weapon was (1) discharged, or (2) merely brandished (choose one).
— Human trafficking, especially of little girls.
— Selling overdose levels of heroin to an addicted 15 year-old.
— Revenge porn.
— Identity theft to destroy the financial foundations of 100 young couples.
— Burning a cross on a black neighbor’s lawn.
— Polluting the water supply of a small city.
— Murder for hire.
Now that’s only ten. Obviously I’m leaving out lots and lots. But we have to start somewhere! Six of the seven Commission seats are vacant, so we need a sense of urgency in prioritizing what sort of criminal background would be most “beneficial” in getting the Commission up and running.
P.S. Bonus points for making an an argument as to why, as the SL&P post explicitly notes, we should look not merely to former, but to “present prison inmates.” Yet more bonus points if the present inmate is in disciplinary confinement for slashing a cellmate’s throat for refusing sexual favors. And still more bonus points for making the case that this sort of criminal or that should be, not merely a Sentencing Commissioner, but a federal judge — such judges having considerably more power over individual sentencing than mere Commissioners.