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How Sentencing Gets Dumbed Down

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The main reason to keep the death penalty is that it's the only fitting punishment for some grotesque crimes. Another reason is illustrated by this story from the AP.  It's about a woman, now 38, who, at 16, lured a man she didn't know to an abandoned house, where he was knifed to death in order to get his wallet.  

The woman, Barbara Hernandez, is  -- one would think from the story's woozy opening paragraphs  --  Joan of Arc's first cousin.  This is how the article (and it's presented as an article, not an op-ed) begins:

More than 21 years after she went to prison, Barbara Hernandez enters the cinderblock visitation chamber at the Women's Huron Valley Correctional Facility in the turquoise blouse with applique flowers she keeps for special occasions. Her makeup is carefully applied but cannot hide the age lines that spread, thin but unmistakable, from the corners of her eyes.

"Thank you for coming," the 38-year-old inmate says softly. Her eyes, chestnut and brooding, are offset by a gentle smile. She holds out a hand in welcome.  

Are we getting the picture?

And in that moment it is up to the visitor to begin weighing the choice the gesture offers: Is this the hand of a criminal who lured a man she'd never met to a brutal death and must be locked away forever? Or does it belong to a long-ago girl, who left home in rural Michigan at 14 only to end up in an abandoned house outside Detroit with a boyfriend who pimped her, and who now deserves a second chance?

Anyone wanna take a crack at that toughie?  Yikes.  And, yes, this is what passes for journalism.

This sort of story needs to be understood less for its propaganda value as an NACDL adjunct, and more  as a tactic and an illustration of a broader, and very worrisome, Movement:  The Movement to dumb down sentencing across the board. Among its main tools are carefully molded sentiment, manipulation, and concealment. After the break, I describe specifically how it works.

The abolition of the DP is the first step in the Movement, but hardly the last. We are solemnly promised that the DP will be replaced with ironclad LWOP, but, as this case shows, there will be exceptions to LWOP, too. The first exception will be youth (last year's decision in Miller v. Alabama), but it won't be the last. Then will come old age (indeed, that one's already here in the form of alleged "sickness"-related parole)(and "old age" will gradually be re-defined down to 50 or so), diminished capacity, exceptional rehabilitation success, and on and on.

Then there will be the push to eliminate LWOP for anyone, building on the (by then numerous) exceptions, and arguing, in addition, that LWOP is just a slow motion DP, which we've already banned.

Then will come the push to limit sentences to 20 or 30 years (as is the case in Norway, see, e.g., mass killer Anders Breivik). This is because, it will be said, to require more is to give up on redemption and is, moreover, an affront to human dignity and human rights.

Then will come the push to eliminate punishment altogether, because criminals are not really to blame at all, they're merely the victims of adverse social forces, including (and especially) the inequities of capitalism, racism, a militarist culture, poor or non-existent parenting, etc., et al. Besides that, we can't afford it.  Finally, the latest brain studies have shown............

OK, you get the point.

As usual, the Movement will start with what it views as a sympathetic case (often, as here, a girl in the thrall of a ruthless boyfriend). The sympathetic case will be very atypical; the more usual thuggish types will remain hidden from view or passed over lightly.

That's how the Movement works. It's patient, not very honest about either what it says or what it's really up to, and shrewdly selective in its test cases.  In order to beat it, we need to bear in mind how it operates.

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