# How to determine a fair sentence?

I am reading a book called Noise, I am still at the beginning, but already I have a question. The book in the first chapter tells the story of how the US Sentencing Commission tried to set some guidelines for the criminal sentences. By their own admission they did not have a method to determine a fair sentence and their solution was to take an average of past sentences. I thought that such solution was too simplistic and I wondered whether there could be a better way.

One solution could be to study the outcome of past convictions. Someone could take some past cases where the convict has served the entire sentence at least x years ago, group these cases by type of crime, circumstances and the length of the sentence (maybe discretised) count the number of convictions in each group and calculate the percentage of repeated offenders. I guess that, barring some noise, it could be possible to fit a curve to these data that would see the number of repeated offenders inversely proportional to the length of the sentence. In many case a change in the slope of the curve could indicate point that would optimise the trade off between the length of the sentence and the number of repeated offenders.

Did anybody ever make a similar study to determine what could be a fair sentence? I am not a law expert and I am sure that there could be other methods that are a lot more sophisticated, but this seems a step ahead compared to the solution adopted by the Sentencing Commission. Am I right or is there a flaw in this idea?

– user35069
Commented Sep 27, 2022 at 21:59
• -1 Editing a question so as to invalidate existing answers is frowned on here. Far beter to ask a separate, followup question. Commented Sep 28, 2022 at 0:50
• It's not only frowned upon, it is also the reason I did a rollback. Commented Sep 28, 2022 at 20:24
– user35069
Commented Sep 29, 2022 at 11:07
• The answers here answer your question as originally posted so I have rolled back edits that caused the answers to be mismatched. If you want to ask a different, related question, please do so. There is no charge for posting questions. Please be clear in how the question is different so that it does not get closed as a duplicate.
– Dale M
Commented Sep 30, 2022 at 4:15

## You are assuming that avoiding recidivism is the primary goal of a custodial sentence

If that were the case, then the death penalty for every crime would be the most effective: not only do dead people not commit crime, they don’t even think about committing crime.

Now, if you’re rebelling against that idea of the death penalty for shoplifting, that just demonstrates that criminal punishment has other goals than merely avoiding recidivism.

Section 3A of the Crimes (Sentencing Procedure) Act 1999 codifies the common law:

(a)  to ensure that the offender is adequately punished for the offence,

(b)  to prevent crime by deterring the offender and other persons from committing similar offences,

(c)  to protect the community from the offender,

(d)  to promote the rehabilitation of the offender,

(e)  to make the offender accountable for his or her actions,

(f)  to denounce the conduct of the offender,

(g)  to recognise the harm done to the victim of the crime and to the community.

Custodial sentences are good at (a), (e), (f), and possibly (g). In the short term they are good for (c) but not so good in the long term and they are terrible at (b) and (d).

Of course, if you’re in a jurisdiction where judges are subject to political pressure, either directly by being elected, or indirectly, by not being independent, then the primary purpose of sentencing is to ensure the judge keeps their job or otherwise advances their career. This can be considered the central dilemma of democratic politics: you cant do “good” unless you have power but getting or keeping power might require you to do “bad’ things.

As for whether there are studies statistically linking any of these objectives to sentence length, there are literally thousands.

• Short story Jigsaw Man has the imposition of the death penalty for a traffic violation discussed and the possible repercussions of the sentence. SciFi but an interesting read. Commented Oct 1, 2022 at 17:19

There are studies that have been done of recidivism based upon various factors, including but not limited to, the nature of the offense. Most of these factors (e.g. age of offender at time of release) have heavy overlap across all offenses.

For example:

A Florida Study ranked the relative importance of different factors in the likelihood that a released offender will commit another crime. Not surprisingly, a poor disciplinary record while in prison, serving prison time in a high security facility, and a history of prior recidivism are connected with future criminal acts. People who commit economicly motivated crimes (burglary, property offenses and drug offenses) are also more likely to commit crimes again, than violent criminals and sex offenders. Crimes are more likely to be committed again by released prisoners who are young, have served shorter sentences, and are less educated. Blacks are more likely to reoffend, Hispanics are less likely to reoffend. Close post-release supervision also lowers the reoffense rate.

Boil it all down and you see basically two forces at work. First, someone is more likely to reoffend is crime was a way of life for them, rather than an isolated incident (often driven by economic factors and often illustrated by a history of offending), and second, crime is predominantly something done by men of a certain age who tend to cease to reoffend once they age and mellow.

One study reports that: 12.2% of non-sexual violent offenders reoffend, 13.4% of sex offenders reoffend, and 36.9% of other offenders reoffend. This doesn't mean that more care with serious offenses isn't in order. A repeat sex offense or aggrevated assault is far worse for society than a repeat burglary or car theft. But, it does confirm the Florida statistics and the trend in national statistics. Texas statistics show a less marked distinction between different offenses, but similar trends except with regard to sex offenses, for which it found high recidivism rates.

(Discussed here on September 29, 2005; this post's links to the original sources are rotted.)

Indeed, the U.S. Sentencing Commission itself has done exactly these kinds of studies for basically this purpose. For example:

The fewer run-ins with the law you have had before, the less likely you are to reoffend, according to a May 2004 U.S. Sentencing Commission report:

The analysis [of empirical data on re-offending] delineates recidivism risk for offenders with minimal prior criminal history and shows that the risk is lowest for offenders with the least experience in the criminal justice system. Offenders with zero criminal history points have lower recidivism rates than offenders with one or more criminal history points. Even among offenders with zero criminal history points, offenders who have never been arrested have the lowest recidivism risk of all.

Federal courts deal with many criminal defendants with little criminal history:

The annual proportion of federal offenders with zero criminal history points is substantial. In fiscal year 2001, more than four out of every ten federal offenders (42.2%) had zero criminal history points for their Chapter Four computation. This proportion was even higher in fiscal year 1992, when nearly half (49.9%) of citizen offenders had zero criminal history points.

About 29.8% had no prior arrests or convictions, 8.4% had been arrested but not convicted, and 1.5% had only minor prior criminal convictions, in 1992. Defendants with no criminal record are much more like to be women, to be white, to be older than 41 years old, less likely to have used drugs, more likely to be employed, more likely to be married, more likely to be high school graduates or have some college, and are more likely to have dependents. Non-violent drug, fraud and theft offenses are the most common charges, making up about three quarters of cases, with fraud and theft much more common than for those with prior offense records. There is no significant difference in mental illness rates.

The recidivism rate of those with no criminal history points is 11.7%, for those with 1 criminal history point is 22.6% and for those with more criminal history is 36.5%. Within those with no criminal history points:

Among the potential first offender groups, group A [no prior convictions or arrrests] has the lowest primary recidivism rate at 6.8 percent, followed by offender group C [minor convictions, no prior arrests] with a rate of 8.8 percent. Offenders in group B have a recidivism rate of 17.2 percent, [prior arrests but not prior convictions] which is more than twice the rate of group A and nearly twice the rate for group C. Even with the comparatively higher recidivism rate, group B’s rate is still several percentage points lower than offenders in the remaining zeroes group (21.7%) [zero criminal history points but some prior conviction for a non-minor matter].

(From a July 21, 2008 post whose links have rotted).

The Pew Center on the States released a report in late May of 2009 arguing for evidence based sentencing which noted that:

Sixty to 80 percent of state felony defendants are placed on probation, fined or jailed in their local communities. Although the United States has the highest incarceration rate in the world, there are nearly three times more offenders on probation than in state prisons. Recidivism rates among these felony defendants are at unprecedented levels. Almost 60 percent have been previously convicted and more than 40 percent of those on probation fail to complete probation successfully. The high recidivism rate among felons on probation pushes up state crime rates and is one of the principal contributors to our extraordinarily high incarceration rates. High recidivism rates also contribute to the rapidly escalating cost of state corrections, the second fastest growing expenditure item in state budgets over the past 20 years.

An August 31, 2022 analysis, citing other academic studies with an international reach has also looked at the issue. It notes that recidivism follows a power law relationship (with a small proportion of offenders committing a disproportionate share of crimes), that substance abuse and mental health are important factors in the likelihood of reoffending, that the economic return to non-criminal activity for offenders is an important factor, and that criminals do not, in general, behave like "rational actors" in response to incentives. The article doesn't mention the fact, but a history of traumatic brain injury is another major risk factor for recidivism.

See also a January 2011 paper on the subject (evaluating a Dutch recidivist sentencing law), and U.S. and Colorado recidivism data collected here.

It also, however, recognizes that not all crimes are equally harmful to society, and likewise, that not all new crimes committed by past offenders are of equally concerns to society. Someone who dines and dashes over and over again is not as much of a threat to society as someone who murders someone even once upon being released.

It is not, in general, practicable to base sentences solely upon this criterion, however.

In part, this is because even if someone who is released from prison has a high probability of reoffending, very long sentences for minor crimes are considered to be disproportionate. In one famous case that the U.S. Supreme Court declined to overrule a cruel and unusual under the 8th Amendment to the U.S. Constitution, a man was sentenced in California under a three strikes and your out law to life in prison without possibility of parole for shoplifting something despite not having particularly heinous prior strikes. See Ewing v. California, 538 U.S. 11 (2003) and Lockyer v. Andrade, 538 U.S. 63 (2003). Much later, the California's statute in question was repealed by a citizen initiative backed by a majority of California voters.

Another problem is that criminal sentences (including those under the U.S. Sentencing Guidelines) consider two kinds of factors: one related to the nature of the offense, and the other related to the characteristics of the offender. Recidivism is significantly more closely related to the characteristics of the offender than it is to the nature of the offense. But, undue emphasis on offender characteristics to the point that they overshadow offense characteristics deviates from the sentencing principle that the punishment should fit the crime.

Both of these issues are well illustrated by the habitual offender statutes in Mississippi and Louisiana, adopted in 1994 and 1995 respectively, which have caused about 2,000 people in those two states combined to serve very long sentences of twenty years or more in prison, to de jure life in prison sentences, to de facto life in prison sentences, for comparatively minor offenses like possession of small quantities of illegal drugs for personal consumption.

While these statutes are designed (rather crudely but designed nonetheless) to reduce recidivism, they do so at the expense of other sentencing values and are widely criticized as result.

The logic behind using sentences for prior convictions is that while notions of what sentences are appropriate are inherently subjective, since they involve competing considerations, there is a stable intersubjective consensus which past exercises of judicial discretion (especially in the federal system which prior to the Sentencing Guidelines provided judges with very little guidance) reflects.

In general, it makes sense to capture the status quo in a clear fashion before attempting to reform it.

It's impossible to determine what constitutes a "fair sentence" until you first define what a fair sentence is. One factor that has long figured into the judgment that a given sentence is unfair if it is disproportional, e.g. 10 years in prison for theft of an apple. Another is generic "justice", where the same facts receive the same treatment – proportionality can then be seen as a specific kind of justice.

We can also gain some insight into what "fairness" is under the law by looking at non-criminal cases, for example if you break a contract with me and therefore I suffer a loss, how in fairness should you compensate me? The legal theory of fairness allows many outcomes, for instance the party might not even owe what I lost: or, the party might own massive sums, awarded as a kind of punishment.

In criminal law, the sentence is primarily set by the legislature, so that you will know that if you murder a person, the consequence will be something objectively calculable - that is a subcase of the objective justice sense of fairness. OTOH the courts have (for millenia) tempered objective justice with mercy, where the judicial response also considers mitigating (and aggravating) circumstances that justify amplifying or attenuating the just response. These are all factors that do into the generic feeling of "fairness".

There are many more factors that can be considered under the broad rubric of fairness, such as "effect on victim" or "effect on society". Your specific interest seems to be in the deterrent value of punishment. You might start looking here for some references that address the question of whether punishment itself deters crime. One conclusion that at least some people believe in is that judicial certainty in punishment has the greatest value in deterring crime. I can't tell if you specifically are only interested in deterring second offenses, as opposed to deterring crime in general.

(Note: this answer may seem out of place, but it is based on the question's initial version and the subsequent rollback - both are available via its edit history...)

How to determine a fair sentence?

Assuming one cannot please everybody all of the time, "fairness", to some extent, is pretty subjective. Fair to whom? Victims, offenders, their respective families, witnesses, overcrowded prisons, overstretched law enforcement officers, tax-payers, or society as a whole?

One way towards achieving something close is applied by the Sentencing Council for England and Wales that:

promotes greater consistency in sentencing, whilst maintaining the independence of the judiciary. The Council produces guidelines on sentencing for the judiciary and criminal justice professionals and aims to increase public understanding of sentencing.

There are five purposes of sentencing the courts must bear in mind when dealing with the vast majority of adult offenders:

• To punish the offender – this can include going to prison, doing unpaid work in the community, obeying a curfew or paying a fine.

• To reduce crime – by preventing the offender from committing more crime, and putting others off from committing similar offences.

• To reform and rehabilitate offenders – changing an offender’s behaviour to prevent future crime, for example by requiring them to have treatment for drug addiction or alcohol abuse.

• To protect the public – from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison, restricting their activities or supervision by probation.

• To make the offender give something back – for example, by the payment of compensation or through restorative justice. Restorative justice gives victims the chance to tell offenders about the impact of their crime and receive an apology.

Once a sentence has been imposed, its "fairness" may be challenged as either being excessive or too lenient.

The former, an appeal by the defendant, depends whether sentence was passed by a magistrates' court or the Crown Court .

The latter, an appeal by the prosecuting authority under Part IV Criminal Justice Act 1988, is only available for a sentence passed by the Crown Court.

• I did a rollback, disclaimer unnecessary now Commented Sep 28, 2022 at 20:24

Disclaimer: many links point to german sources; material in English is at times sparsely available. Such links are denoted with (ger)

## Different countries, different solutions!

While the US did their thing, went an entirely different way:

### Sentence guidelines can be in the laws

German laws prescribe a sentencing range for each and every crime in the book. If you read up on the punishment for murder, you'll see it is lifelong imprisonment under the very paragraph. Likewise, all the crimes in Germany have either their own sentence length prescribed on their paragraphs or point to the relevant crime that is its base. So it was all up the lawmakers to decide what they deem the appropriate range.

### The aim of the german penal system

But the penal system in Germany is also aiming to rehabilitate prisoners, and only in some cases to lock them away. In fact, prison forever is only possible for particularly heinous crimes. This usually needs a case of murder to start and then a special verdict of "Sicherheitsverwahrung (ger)", which prevents someone who got a life sentence from being released after at earliest 15 years. This special verdict is also available for some sexual crimes, especially if the victim is a minor. For procedural reasons, the need for Sicherheitsverwahrung needs to be checked yearly.

Also, note that suspending the sentence "zur Bewährung" is common practice in German courts for smaller sentences. In a similar vein, those who already had a suspended sentence in the past are more likely to get a prison sentence the next time.

German Prisoners get to enact political participation: while they can not be elected for 5 years and lose their elected seatings automatically when sentenced to more than 1 year of prison under §45 StGB, it takes a special verdict to remove the ability to take part in elections for between 2 and 5 years. This special verdict is only available for things like manipulating elections deliberately or treason. Elections from prison generally take the shape of mail-in-ballots (ger).

### Example: spitting someone in the face

So, let's assume you want to know how long you get for insulting and spitting on an officer, and making him feel sick for more than a day (ger), like in the BGH case that brought the matter in front of the highest german court. So, you look up the range for such behavior in the books. Could be insult but also assault. As the BGH decided, the appropriate one is the paragraph about insulting (ger), as the spitting lacked the mens-rea needed for assault, which would be triggered if the spitter wanted to make the officer sick and vomit. So, you learn that the prescribed punishment is a monetary fine or up to two years imprisonment, as spitting on someone is under the judicative's consensus a case of "Tätlichkeit".

Now, the lawmaker did give a rather large array there... how to work from that? Well, the courts have a large area of deference there. For our example of spitting the police officer into the face, the common punishment - if not exceptional - is a monetary fine, and then to look up similar cases and take a number of day-earnings similar to other cases that are very similar. But it is up to the judge to decide in the end, and yes, our spitter might face up to 2 years in prison in case he was particularly heinous in his spitting.

But what is a comparable case? That is determined for example by comparing the people that committed the offense, taking their age and social background as well as into account. Was the offender a 13-year-old kid? No punishment but a stern talking to the parents - they are not "Strafmündig". 16-year-old juvenile? Probably a small punishment in the shape of spending some time in social hours doing things for the community (e.g. reading books to seniors) - he also is punished under the juvenile regulations anyway. 40-year-old with nothing on the record? Possibly a monetary fine. 22-year-old punk that has a long history of insulting policemen? This one might actually get some time in prison, as he is clearly not learning from monetary verdicts against them.

If it is a monetary fine in day earnings (and not a fixed one as for misdemeanors), the convicted person's daily income is calculated and an appropriate number of day earnings becomes the verdict. If Adam earns 100 € a day and is sentenced to 15 day-earnings, he has to pay 1500 €. His neighbor Bob earns 1000 € a day and thus has to pay 10 times as much.

## Statistics on the German penal system

In Germany, only 76 out of 100000 are in the penal system, compared to 693 out of 100000 in the US. That is about a tenth of the incarceration rate.

By pure statistics, in Germany 15% of all sentences are suspended prison sentences (which means they are not served unless they reoffend), 6% are incarceration and 79% are fines. Near 0% of the verdicts dictate probation without serving time or community service, the latter of which is only available for juvenile offenders. The US dishes out no suspended prison sentences, 70% incarceration, 21% fines, and 37% probation or community service, many verdicts containing two punishments.

While the average US sentence is 3 years, 75% of German inmates need to serve less than a year, and 92% serve up to 2 years. As already noted, many sentences are suspended, accounting for between 72 and 78% of the various sentencings.

The US has a reoffending rate of about 40% of former inmates. In Germany (ger) about 35% of the sentenced people reappear in front of a judge within 3 years. This number is heavily slanted because 64% of the Juveniles with one conviction gain a second one. 45% of the adults that didn't get a suspended sentence appear a second time in court. Overall, about 30% of juveniles that had been incarcerated return into incarceration, and 21% of adult former inmates return into custody.

Also keep in mind, that those percentages stand much fewer people to begin with: about 1 in three that left prison in Germany will re-offend and return to prison. So we can assume that from the 76 incarcerated per 100000 a quarter (19) are incarcerated as re-offenders. In the US, the quota is 40% will re-offend, so out of the 693 per 100000, 4/14th are in again, which is 198 re-offenders per 100000.