On Skilling's 24 Year Sentence at Law & Society Blog

On Skilling’s 24 Year Sentence

Published by Hanno Kaiser October 25th, 2006 in Theories of Punishment, Law and Society

Geoff Manne offers the following insightful comment over at Truth on the Market , extending a discussion about the proportionality of Skilling’s sentence compared to sentences meted out in the so-called “war on drugs.”

The problem in the drug war context is quite different, at least for me. Given a social (or at least government) policy of deterring drug use, perhaps draconian sentences are required and appropriate (given the difficulty of deterrence). But I happen to think the policy itself is idiotic and the practice shouldn’t be deterred in the first place. In that sense, I think punishments for drug use are approximately infinitely too large. But there’s little sense in quibbling over the length of sentencing and optimal enforcement policy given my priors.

The same doesn’t go for corporate fraud: It should be deterred. The question there, however, is how to do so optimally, given the staggering social costs of over-deterrence; the risk of self-aggrandizing, politically-motivated, error-prone prosecution; and the reality of pretty good, existing agency-cost controls. Was Skilling’s prosecution, conviction and sentencing here optimal from a deterrence standpoint? I doubt it, and so do many others.

While Skilling’s sentence is not as preposterous as, say, 200 years for possession of child pornography, it is yet another indication that criminal sentencing in the US, across a wide range of offenses, is simply off the charts. The virtually unchecked power given to prosecutors to destroy a defendant’s life at their discretion (which will often be driven by career, or worse, political ambitions) is unjustifiable. The entire punishment debate needs an empirical reset. Policy goals should be identified on the basis of harm to others, with physical harm — at least lasting physical harm — counting for more than economic harm. And punishments should be calibrated on the basis of optimal level of crime, deterrence and future expected contributions to society by the offender (a.k.a. rehabilitation). The rich experience of other developed nations, more developed nations when it comes to rational criminal law policies, should be taken into consideration in calibrating the model. Lastly, the consequentialist framework should be bracketed by deontological considerations, for example, even if the evidence were to show that certain crimes are effectively deterred by the death penalty, imposing it is beyond the legitimate powers of any government. (Utilitarian-Libertarians will have no problems recasting this as a consequentialist argument.)

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One Response to “On Skilling’s 24 Year Sentence”

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1 Matt Wood Oct 29th, 2006 at 8:45 pm

Dan Kahan has argued* that imprisonment’s widespread public support as a punishment system (as opposed to, say, shaming penalties) can be explained by resort to an expressive theory of politics. As a policy choice, imprisonment benefits from its “expressive overdetermination”: it is endowed with sufficiently diverse meanings that a diverse array of social groups are able to find affirmation of their values within it. [Kahan seems to refer to this array of meanings, in the context of political will-making, as a policy’s “expressive political economy”.] Importantly, Kahan identifies expressive overdetermination as a critical precondition for political consensus.

As Hanno has explained elsewhere, Kahan proposes that people can be taxonomized according to four basic worldviews: hierarchical, egalitarian, individualistic, and communitarian. Applying these worldview archetypes to imprisonment, Kahan writes:

“[H]ierarchists can see it as supplying a delicious form of debasement for those who resist their proper place in the social order; communitarians, a fitting gesture of banishment for those who wrongfully renounce social obligation; individualists, a reciprocal deprivation of liberty for those who fail to respect the liberty of others; and egalitarians, a uniquely democratic metric of punishment for persons who enjoy value by virtue of their capacity for autonomy.” (2089)

“Hierarchists and communitarians understand that imprisonment degrades and moralizes; they like it for exactly that reason. But these features of imprisonment are essentially invisible to egalitarians and individualists, who by virtue of the expressive richness of imprisonment can tell themselves that prison is really about something else - controlling dangerous persons, deterring harm, or even (the ultimate delusion) reforming offenders.” (2090)

Giving Kahan the benefit of the doubt (arguendo), a shift in the balance-of-power among worldviews may help explain the surge in lengthy prison sentences that Hanno often decries. Sentences whose primary (perceived) social meaning is condemnation will likely exceed those counseled by more pragmatic goals of deterrence. We might therefore expect a redistribution of individual worldviews (from egalaitarian and individualistic to hierarchical and communitarian) to predate and track the rise in excessive sentences. And we might locate this redistribution in the population as a whole, or in the sub-population of active voters.

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*Kahan, “What’s Wrong with Shaming Sanctions”. 84 Tex.L.Rev. 2075 (2006).

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