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Decentralize Power in Sentencing (Just Like We Try to do in Economics)

| December 27, 2010

Central planning doesn’t work.  The amount of knowledge that is required to efficiently allocate limited resources is too vast for a single person – or a single committee – to comprehend.  As conservatives frequently point out, this is a big reason why the Soviet Union, with its numerous planning committees, was destined to collapse. Friedrich Hayek, the Nobel Prize winning economist and conservative hero, wrote that “[w]e need decentralization because only thus can we insure that the knowledge of the particular circumstances of time and place will be promptly used.”

The merits of decentralization are a central conservative insight about economics, but in an interesting post at The Atlantic’s website, Wendy Kaminer demonstrates that the same logic applies in criminal justice.  Her essential argument is that mandatory sentences have the unintended consequence of centralizing the power to sentence offenders in the hands of prosecutors – when it would be much better to distribute this power among police officers, prosecutors, and judges (and juries — which Kaminer does not mention, but which also have an important role).  It is an interesting argument, and it touches upon an essential conservative truth about how centralized power corrupts:

“Advocates for mandatory guidelines and mandatory minimum sentences still argue misleadingly that they limit arbitrariness and discretion in sentencing. They do not. They transfer sentencing discretion from judges to prosecutors: When legislatures dictate particular sentences for particular crimes, prosecutors are effectively empowered to decide how defendants will be sentenced when they choose the crimes with which defendants will be charged. This represents a dangerous concentration of power, and mandatory sentences are useful in coercing inappropriate plea bargains…

Discretion in the administration of justice simply can’t be eliminated; but it should be de-centralized to minimize its abuses: apportioned out to police who make arrests, prosecutors who decide whether and how to charge, and judges who determine sentences. Lessen judicial discretion and you increase the discretion of prosecutors; lessen prosecutorial discretion and you’d increase the discretion of police. Isn’t it obvious that justice, or some semblance of it, requires checks and balances? It’s something of a zero sum game.

Kaminer’s entire post can be read here.

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