NOTE: This is a fictional account of an issue developed simply as an example in the legislative process of creating a criminal justice law.
On the armed robbery bill pending before the Louisiana State Senate, as requested by Senator Bill Will, review the following considerations and recommendations.
In the case of armed robbery penalties statewide, there are numerous points to consider. Because the penalties differ from district to district, a doubling of the maximum penalty may have some impact in certain districts with none in others. For instance, in the New Orleans jurisdiction, the current maximum penalty is 99 years to life. Given the limited lifespan of humans, doubling that penalty will simply create a scenario whereby the legislature simply appears out of touch with reality so that such a change could backfire politically and realistically. In other districts, where the penalties are lesser, the change may have some effect, depending upon the goals of the sentencing.
As for sentencing goals, it is important to understand the purpose and intent of the currently pending bill. To begin, if the bill nothing more than a political bandage to satisfy certain lobbyist groups, providing the public with a sense of security and well-being, though nonexistent, such a measure may be effective with the exception of certain districts such as New Orleans as mentioned above. However, if the goal of the bill is to affect crime reduction strategies, it must be viewed from the standpoint of empirical and statistical evidence.
Remember, Senator Will, there are five goals of sentencing that impact the criminal and the public: retribution, incapacitation, rehabilitation, deterrence, and restoration (Schmalleger, 2009). The effectiveness of this bill will hinge upon which goal or goals are sought. Now consider each of these.
After numerous personal interviews with law enforcement and corrections officers across the state, it has become clear that many do not favor the bill for purposes of deterrence. As most of the interviewees stated, no penalty is effective in deterring criminal behavior because few criminals believe they will be caught. Another point to consider when deciding whether a punishment will be an effective deterrent is the specific sentencing meted out to convicted criminals. Neo-classical thinkers agree that for deterrence sentencing to be effective, punishment must be swift and certain. However, as statistics show, justice in America is anything but swift and certain. Quite to the contrary, in fact, the United States’ criminal justice system only manages to apply punishment to about 1% of all persons arrested on felony charges. This is a fact that even the criminals know. Therefore, even when a punishment is increased, criminals know and understand that even if they are caught, the likelihood that they will actually serve time is slim (Schmalleger, 2009). As a result, such a bill as currently pending is unlikely to have any deterrent effect what-so-ever.
If the goal of the bill is rehabilitation, it becomes obvious that the bill will not be effective for in most jurisdictions the criminal will never reenter society and no need for rehabilitation is necessary. Rehabilitation becomes a moot point.
In the case of restoration, the bill would need to contain some provisions of repayment to the victims, such as forced labor of the prisoner with proceeds being channeled to the victims over time. As it appears, this bill is not seeking to restore victims.
As the bill appears, the only sentencing goals that may cause it to be effective are retribution and incapacitation. However, there are drawbacks to each. Although retribution may feel good, often vengeance becomes a pyrrhic victory. If the cost of retribution is greater than the public can afford, the state may find a worse problem than the initial. Politically speaking, the bill could be detrimental; and publicly speaking disastrous. Likewise with incapacitation; if this is the goal, the bill would be effective, but at a high cost. We must ask if the state can afford the additional fiscal burden of long-term incapacitation and the ensuing public reaction to the inevitable increased taxation.
In addition to the costs associated with retributive justice and incapacitation, there are the underlying moral or Judeo-Christian concepts of “just desserts” (Schmalleger, 2009, p. 146). The role of a judge is presumed to be one of an arbiter of justice, a person empowered by the state to mete out the deserving punishment for a crime committed. However, by removing the ability of a judge to consider mitigating factors, society is robbed of the only means by which each crime is treated as unique. By making each criminal occurrence the same as through standardized sentencing practices, the criminal justice system will also make every criminal and every victim the same. This is a fallacy and cannot therefore succeed. A judge must be able to weigh every case according to the merits of the case and proceed accordingly when applying a sentence (Edney, 2006).
One final note: Because the bill only doubles the maximum penalty, the current practice of the law will likely continue. Indeed, the maximum penalty is seldom applied and when it is, the receivers seldom serve the full term, generally earning early release through various means. Hence, although the bill may sound good, in practice, sentencing is likely to continue as it is currently. Therefore, if the goal of the bill is the service of political ends, then it should proceed, for only on these grounds would it likely be effective, for a time.
Given these considerations, the following recommendations are presented for perusal.
The first recommendation to consider would be to decide what the goal of the current legislation is to be. If the goal is political and the constituency is in favor, it will likely be favorably received in the now. One can only surmise how the future political winds will blow after passage. If the constituency is mostly opposed, passage could be ruinous. So the first recommendation would be to conduct polling of the voting base and proceed accordingly.
The second recommendation, if incapacitation is the goal would be to modify the bill to read a doubling of the minimum sentencing. This would ensure that armed robbers will spend longer sentences behind bars and effect true change within the system. However, be prepared, for such a measure must be followed up with corresponding increases in tax revenue.
The third recommendation, if retribution is the goal would be to poll the constituents to determine exactly what would be considered a just punishment for the crime. Of course, taking into consideration American sensibilities and the limits imposed through the Bill of Rights will be a must, for certain punishments, such as caning used in Singapore may appeal to many Americans yet be inadmissible by the United States Supreme Court (Gladwell, 2007).
Additionally, if the legislature is seeking deterrence, the bill could be modified according to the second recommendation and marketed heavily. The effectiveness of marketing products has long been understood in the realms of advertisers but has yet to be applied to control the masses concerning the application of justice. Whereas it may be a novel approach to pass and market a bill, it could be effective in deterring future criminal activity or it could simply become a waste of taxpayer revenue. It may be wise to consider funding research to determine whether this approach merits future consideration or not.
One last recommendation concerns the reasons or motivations for the criminal actions. Robbery armed or otherwise, is an act based upon getting something for nothing. Robberies are conducted by persons seeking to gain at the expense of others without putting in the time and effort applied by the victims. Some criminologists support the concept that society creates the atmosphere conducive to such crimes either tacitly or directly (Schmalleger, 2009). In so doing, society shares the burden, not only of punishing offenders but also in promoting criminal activity as well. If the offenders are seeking gain because of losses in the job markets or other factors beyond their control, perhaps this notion holds merit. If the legislature is seeking to reduce the rates of armed robbery, funding should be allocated to determine if increases in opportunities for honest income would produce the desired results.
Simple answers to the question of the effectiveness of the currently pending armed robbery bill do not exist. The goal of the legislation must be clearly understood by the legislature and if the path to the goal is unpopular, much political courage will be required to enact the necessary strategy. It would appear that as stated, the bill would not be effective unless the only consideration is political.
- Edney, R. (2006, June). Models of understanding criminal behavior and the sentencing process: A place for criminological theory? Journal of Criminal Law, 70(3), 247-271.
- Gladwell, M. (2007, November 10). Dangerous Minds. The New Yorker Department of Criminology, 18(15), 36.
- Schmalleger, F. (2009). Criminal Justice Today: An Introductory Text for the 21st Centure (10th ed.). Upper Saddle River, NJ: Prentis-Hall.
- Schmalleger, F. (2009). Criminology Today: An Integrative Introduction (5th ed.). Upper Saddle River, NJ: Prentis-Hall.