Defuse the ticking time bomb
The Law's Stepford Wives

Two Sentencing Frames and Third-Strike Laws

Should prison sentences fit the person, or the crime? How you answer this question will tell me a lot about your sentencing beliefs.  It's probably the single most important thing a criminal lawyer can know about a sentencing judge.  How someone answer this question will determine whether or not she believes in judicial discretion at sentencing - and also whether she supports three-strikes laws (though probably not in the way you think). 

Under the sentence-the-person model, the judge looks at all relevant offender characteristics.  The judge doesn't act like a computer, saying, "The defendant was convicted of x-crime; therefore y-sentence."  Rather, the judge weighs aggravating and mitigating factors.  The judge might ask, "Did the defendant steal the bread to feed his family, or his drug habit," and sentence the defendant accordingly.  Under the sentence-the-crime model, the judge simply looks at the crime in determining sentencing.  "The defendant was convicted of x-crime; therefore, y-sentence."

There's much more to it than this, and each approach has its problems. UPDATE: Doug Berman has this fascinating article exploring how the federal sentencing guidelines attempt to apply both frames to sentencing.  But there seems to be an incongruity among those who follow one model or the other, and their perspective on third-strike laws.

People who, like me, generally support third-strike laws argue something like this: This person has demonstrated that he is unwilling to abide by society's rules.  He's breached the social contract time after time.  This person has done enough damage to society: it's important he be removed before doing further damage.  That sounds an awful like like the sentence-the-person frame, doesn't it?  Yet most third-strike proponents also support mandatory minimums (re: sentence-the-crime frame).

Similarly, those who oppose third-strike laws argue: "Come on, Mike, the guy was caught with a pizza!  How can you send someone to prison for life for stealing a pizza?!"  That sounds an awful lot like the sentence-the-crime model, doesn't it?  Yet the same people who make this argument in the third-strike context will argue to they're blue that a trial judge must not blindly sentence the defendant based on the offense conduct.  Rather, the judge must "sentence the person, not the crime."

This seems like an incongruity.  Is it?  If so, what explains it?