In the United States and many other countries, sentencing is a separate phase of a criminal trial. Once a defendant has been convicted, a judge will typically determine his punishment in the sentencing phase — and that punishment can vary. We are so used to this that the origin of the tradition is rarely questioned. But why would two people who committed the same crime serve different jail sentences? You might assume the purpose is to allow the circumstances of the crime to be taken into account, and indeed this is its main use today. As it turns out, variable sentencing has a far darker past.
Charles Darwin’s Origin of Species was published in 1859. Its impact was enormous, and like many new developments in science it was used and abused to justify current social practice. For that time period, this included the Western belief in the inferiority of non-white races and the lower intelligence of women. Scientists believed they could predict intelligence by looking at the shape of a skull. Fortunately, these ideas have been relegated to the dust heap by today’s scientific community, but they were quite influential in their day.
One of the new movements created was criminal anthropology, spearheaded by Cesare Lombroso. He believed that much criminal behavior was hereditary, that a criminal type existed, and criminal tendencies could be predicted by objective physical signs. Thick skulls, low foreheads, and long arms were all the mark of the hereditary criminal. (He even argued that the feet of prostitutes were similar to those of apes, with a wider spread than normal between the big toe and the rest of the foot.) While the details of Lombroso’s beliefs were ridiculed even during his lifetime, his theories had significant implications for the treatment of criminals. Crime became an issue of inheritance, rather than social envirnoment.
The fundamental idea Lombroso contributed was that some people had inborn tendencies to criminal behavior. In his view, hereditary criminals should be separated from the rest of society, because reform was essentially impossible. Not treated badly, mind you, they couldn’t help their behavior; but separated nonetheless, and if bucolic jails were limited then banishment and transporation were available. On the flip side, there was no point in applying long jail sentences for crimes of passion — they were triggered by extreme circumstances that caused a good person to do a bad thing, and the public was not in danger. Variable criminal sentences, parole, and early release programs were proposed as ways to adjust the legal response appropriately.
As we know, many of these innovations eventually became standard practice. In the U.S., for a time, things went even further, with forced sterilizations for certain populations. Lombroso’s adherents did encounter some resistance. Many judges and lawyers did not like the scientific intrusion into their turf. And some social critics took what we would consider a modern viewpoint, calling this another way for the middle class to blame the lower for causing problems without addressing the root causes, such as poverty. In reading the initial debate in the British parliament, it is amazing to see the caustic and witty attacks by the left on the convenient pseudo-science of criminal anthropology. Many of their arguments could be used almost word-for-word today.
In Britain, for a while, even petty crimes could lead to life imprisonment. Some of these cases were so extreme that they eventually led to reform. Winston Churchill (yes, that Winston Churchill) fought to eliminate indeterminate sentencing during his brief tenure as Home Secretary. He was particularly appalled by the case of a Dartmoor man who had been sentenced to 40 years for petty theft. As I recall — and I regret I cannot find a web reference here — Churchill succeeded in getting the man released, although he was subsequently embarrassed when the man promptly committed another minor theft. Nevertheless, the pendulum continued to swing, and in time it became unacceptable to impose long jail sentences for minor crimes.
Variable sentencing is so familiar to us today that it is rarely questioned. But looking at its past may raise some uncomfortable questions. Are criminal sentences always fair and proportionate, or are other factors — appearance, race, diction — wielding inappropriate influence? Various studies have shown that the death penalty is statistically imposed for minorities more often than for whites. The next time you see sentencing information in a criminal check, consider whether it was fairly imposed. It is uncomfortably hard to know if it was.
For more information, I recommend Stephen Jay Gould’s Mismeasure of Man. If you have access to a university library, exploring the original publications by 19th century scientists makes for enlightening, if horrifying, reading.