While I see what youâre saying here, I prefer evil to be done inconsistently rather than consistently, and every time someone merely gets what they deserve instead of what some unhinged penal system (whether in the US or elsewhere) thinks they deserve seems like a good thing to me.
(I donât personally have an opinion on what SBF actually deserves.)
I canât speak for the disagrees (of which I was not one), but I was envisioning something like this:
You are one of ten trial judges in country X, which gives a lot of deference to trial judges on sentencing. Your nine colleagues apply a level of punitiveness that you think is excessive; they would hand out 10 yearsâ imprisonment for a crime that youâif not considering the broader community practicesâwould find warrants five years. Although citizens of county X have a range of opinions, the idea of sentencing for 10 years seems not inconsistent with the median voterâs views. The other judges are set in their ways and have life tenure, so you are unable to affect the sentences they hand down in any way. Do you:
(a) sentence to five years, because you think it is the appropriate sentence based on your own judgment;
(b) impose a ten-year sentence that you find excessive, because it prevents the injustice of unequal treatment based on the arbitrary spin of the assignment wheel; or
(c) split the difference, imposing somewhere between five and ten years, accepting both that you will find the sentence too high and that there is an unwarranted disparity, but limiting the extent to which either goal is compromised.
I would be somewhere in camp (c), while Ben sounds like he may be closer to camp (a). I imagine many people in camp (b) would disagree-vote Ben, while people in camp (c) might agree, disagree, or not vote.
I can think of grounds to disagree, though. Say for example you were able to disproportionately protect e.g. white people from being prosecuted for jaywalking. I think jaywalking shouldnât be illegal, so in a sense any person you protect from prosecution is a win. But there would be indirect effects to a racially unfair punishment, e.g. deepening resentment and disillusionment, enabling and encouraging racists in other aspects of their beliefs and actions. So even though there would be less direct harm, there might be more indirect harm.
I think the indirect harms are at work in this case too, and itâs just a matter of how you weigh them up. I donât have anything but instinct to justify the weighing Iâve done.
Totally fair! I think part of my reasoning here relies on the difference between âsentence I think is longer than necessary for the purposes of sentencingâ (which I would not necessarily classify as an âevilâ in the common English usage of that term) and an âunhingedâ result. I would not support a consistent sentence if it were unhinged (or even a close call), and I would generally split the difference in various proportions if a sentence fell in places between those two points.
Itâs a little hard to define the bounds of âunhinged,â but I think it might be vaguely like âno reasonable person could consider this sentence to have not been unjustly harsh.â Here, even apart from the frame of reference of US sentencing norms, I cannot say that any reasonable person would find throwing the book at SBF here to have been unjustly harsh in light of the extreme harm and culpability.
Yeah, sorry, when I said âunhingedâ I meant âthe US penal system is in general unhingedâ, not âthis ruling in particular is unhingedâ. I also used âevilâ as an illustrative /â poetic example of something which Iâd rather be inconsistent than consistent, and implied more than I intended that the sentencing judge was actually doing evil in this case.
Itâs possible that Iâm looking at how the system treats e.g. poor people and racial minorities, where I think itâs much more blatantly unreasonable, and transplanting that judgement into cases where itâs less merited. 25 years is still a pretty long time though, and I wouldnât personally push for longer. (I would, however, support a lifetime ban from company directorships and C-suite executives and similar.)
I understood the gist in context as ~ âusing US sentencing outcomes as a partial framework, or giving weight to consistency when many sentences are excessive or even manifestly so, poses significant problems.â And I think that is a valid point.
Your last sentence raises another possible difference in how to approach the question: My reactions to how long he should serve are bounded by the options available under US law. I didnât check, but I think the maximum term of supervised release (the means of imposing certain post-sentence restrictions) is only a few years here. And there is no discretionary parole in the federal system, so I can only go off of SBFâs lack of remorse (which requires acknowledgement of wrongdoing, not just mistakes-were-made) in assessing his future dangerousness. Itâs possible I would go down somewhat if I could maintain a tight leash on post-sentence conduct in exchange.
Finally, I think itâs appropriate to consider a few other practical realities. It is practically essential to give defendants an incentive to plead guilty when they are actually guilty; that is commonly thought of as 25-33%. Likewise, we have to further punish defendants who tamper with witnesses and perjure themselves. The US system detains way too many people pre-trial, and if weâre going to fix that then I think the additional sanction for abusing pre-trial release has to be meaningful. So I have almost a doubling of the sentence here compared to a version of SBF who pled guilty, didnât tamper, and didnât perjure. So to me, saying 25 years was enough here implies ~12.5 would be enough for that version of SBF, with about 9-10 years estimated actual incarceration.
You make a lot of good points. I think thereâs a lot of practical realities of an effective system here that I didnât confront, and honestly, Iâm probably better off leaving that stuff to those who know more about it, like you :)
While I see what youâre saying here, I prefer evil to be done inconsistently rather than consistently, and every time someone merely gets what they deserve instead of what some unhinged penal system (whether in the US or elsewhere) thinks they deserve seems like a good thing to me.
(I donât personally have an opinion on what SBF actually deserves.)
To clarify, you would sacrifice consistency to achieve a more just result in an individual case, right?
But if there could be consistently applied, just, results, this would be the ideal result...
I donât understand the disagree votes if I am understanding correctly.
I canât speak for the disagrees (of which I was not one), but I was envisioning something like this:
You are one of ten trial judges in country X, which gives a lot of deference to trial judges on sentencing. Your nine colleagues apply a level of punitiveness that you think is excessive; they would hand out 10 yearsâ imprisonment for a crime that youâif not considering the broader community practicesâwould find warrants five years. Although citizens of county X have a range of opinions, the idea of sentencing for 10 years seems not inconsistent with the median voterâs views. The other judges are set in their ways and have life tenure, so you are unable to affect the sentences they hand down in any way. Do you:
(a) sentence to five years, because you think it is the appropriate sentence based on your own judgment;
(b) impose a ten-year sentence that you find excessive, because it prevents the injustice of unequal treatment based on the arbitrary spin of the assignment wheel; or
(c) split the difference, imposing somewhere between five and ten years, accepting both that you will find the sentence too high and that there is an unwarranted disparity, but limiting the extent to which either goal is compromised.
I would be somewhere in camp (c), while Ben sounds like he may be closer to camp (a). I imagine many people in camp (b) would disagree-vote Ben, while people in camp (c) might agree, disagree, or not vote.
yes, thatâs right.
I can think of grounds to disagree, though. Say for example you were able to disproportionately protect e.g. white people from being prosecuted for jaywalking. I think jaywalking shouldnât be illegal, so in a sense any person you protect from prosecution is a win. But there would be indirect effects to a racially unfair punishment, e.g. deepening resentment and disillusionment, enabling and encouraging racists in other aspects of their beliefs and actions. So even though there would be less direct harm, there might be more indirect harm.
I think the indirect harms are at work in this case too, and itâs just a matter of how you weigh them up. I donât have anything but instinct to justify the weighing Iâve done.
Totally fair! I think part of my reasoning here relies on the difference between âsentence I think is longer than necessary for the purposes of sentencingâ (which I would not necessarily classify as an âevilâ in the common English usage of that term) and an âunhingedâ result. I would not support a consistent sentence if it were unhinged (or even a close call), and I would generally split the difference in various proportions if a sentence fell in places between those two points.
Itâs a little hard to define the bounds of âunhinged,â but I think it might be vaguely like âno reasonable person could consider this sentence to have not been unjustly harsh.â Here, even apart from the frame of reference of US sentencing norms, I cannot say that any reasonable person would find throwing the book at SBF here to have been unjustly harsh in light of the extreme harm and culpability.
Yeah, sorry, when I said âunhingedâ I meant âthe US penal system is in general unhingedâ, not âthis ruling in particular is unhingedâ. I also used âevilâ as an illustrative /â poetic example of something which Iâd rather be inconsistent than consistent, and implied more than I intended that the sentencing judge was actually doing evil in this case.
Itâs possible that Iâm looking at how the system treats e.g. poor people and racial minorities, where I think itâs much more blatantly unreasonable, and transplanting that judgement into cases where itâs less merited. 25 years is still a pretty long time though, and I wouldnât personally push for longer. (I would, however, support a lifetime ban from company directorships and C-suite executives and similar.)
I understood the gist in context as ~ âusing US sentencing outcomes as a partial framework, or giving weight to consistency when many sentences are excessive or even manifestly so, poses significant problems.â And I think that is a valid point.
Your last sentence raises another possible difference in how to approach the question: My reactions to how long he should serve are bounded by the options available under US law. I didnât check, but I think the maximum term of supervised release (the means of imposing certain post-sentence restrictions) is only a few years here. And there is no discretionary parole in the federal system, so I can only go off of SBFâs lack of remorse (which requires acknowledgement of wrongdoing, not just mistakes-were-made) in assessing his future dangerousness. Itâs possible I would go down somewhat if I could maintain a tight leash on post-sentence conduct in exchange.
Finally, I think itâs appropriate to consider a few other practical realities. It is practically essential to give defendants an incentive to plead guilty when they are actually guilty; that is commonly thought of as 25-33%. Likewise, we have to further punish defendants who tamper with witnesses and perjure themselves. The US system detains way too many people pre-trial, and if weâre going to fix that then I think the additional sanction for abusing pre-trial release has to be meaningful. So I have almost a doubling of the sentence here compared to a version of SBF who pled guilty, didnât tamper, and didnât perjure. So to me, saying 25 years was enough here implies ~12.5 would be enough for that version of SBF, with about 9-10 years estimated actual incarceration.
You make a lot of good points. I think thereâs a lot of practical realities of an effective system here that I didnât confront, and honestly, Iâm probably better off leaving that stuff to those who know more about it, like you :)