The title of this post is the title of an article in today’s Slate about thousands of errors that have been found in Maryland’s criminal sentencing system – errors that resulted in some inmates serving more time in prison than their actual sentences warranted, and some serving less. The problem occurs when prosecutors make errors on sentencing worksheets, defense attorneys fail to catch the errors, and judges rely on the worksheets in imposing sentences. The Maryland State Commission on Criminal Sentencing Policy is responsible for designing the worksheets, compiling the data, and relying on the data in developing sentencing guidelines.
What’s interesting about this piece is that it highlights a fact that many criminal justice actors know, but few like to admit – the criminal justice system is extremely vulnerable to error.
In most areas of life, we would generally prefer to have things kept error-free. Things just seem to operate better when errors are kept to a minimum. But in the criminal justice arena, we insist on it. The idea that someone could be incarcerated for a longer period of time than they deserve offends our sense of fairness. The idea that someone could be incarcerated for a shorter period of time than they deserve offends our sense of justice. And the idea that our criminal justice officials (police officers, district attorneys, judges, or corrections officers) might ever, under any circumstances, make a decision that results in a crime being committed, seems utterly unacceptable. We want our public officials to guarantee us a crime-free society.
The problem is that our criminal justice system is not nearly as air-tight as we sometimes like to pretend it is. Criminal justice officials have a tremendous amount of discretion, and they have to make judgment calls. Even our best attempts to minimize discretion and the potential that a bad decision will have harmful consequences (including the move toward sentencing commissions, guidelines, and worksheets), leave us vulnerable to error.
We must continue our efforts to minimize the potential for error in our criminal justice processes. Sentencing commissions and guidelines are excellent steps in this direction. But no matter what we do, we will never eliminate the potential for error entirely. We should probably start getting comfortable with that reality.