Moral Circumstance or Luck as Determinants of Blameworthiness in Sentencing

I’ll weigh-in on whether praise or blameworthiness can be affected by moral luck based on my 43 years of experience as director of a not-for-profit serving people who are either reentrants (from prison) or in recovery (from addiction).

See (Links to an external site.) if curious.

In advocating for these people (be they plaintiffs, defendants or disenfranchised) through (a) social services, (b) civil courts or (c) criminal courts, there seems to be a spectral shift from left to right (a)–>(b)–>(c) in the weight given to the client’s circumstances or luck in life.

This effects the number of entitlements and/or monetary amounts they might receive in the case of (a) social services, to monetary awards they might win in (b) civil cases (most remunerations are denominated in dollar amounts, except for property reassignments, visitations, and/or restraining orders), to the degree of sentencing in the case of (c) criminal cases (denominated in time served).

The shift is not linear in the weighing of moral circumstances or luck. It’s nearly binary. Sentencing guidebooks (referenced this past week by Judge Ketanji Brown in her confirmation hearings) are measured in time.

Only relatively recently has consideration been given to monetary restitution. To wit, a client stole and fenced a Rolex watch. Restitution was the $20,000 assessed value of the watch with no consideration for it being an irretrievable, priceless memento of the victim’s great grandfather. Insurance covered $15,000 of that amount and the client had to pony up the remaining $5,000.

Progress in the allowance of time to be “paid” in community service also offers some hope.

Also indicted in Brown’s testimony are the equivocations of “desert” (the weighing of the penalty to the crime), notions of whether said penalties are effectual as “deterrents,” or whether weighing in favor of the victim over the perpetrator (who might have been the greater victim of circumstance) is the “best bet.” Gauging from the tenor of the questioning, these remain the prime movers in sentencing.

As a consequence of the George Floyd, Breonna Taylor and succession of related incidents, there has been a seismic “leftward” shift in consideration of moral luck in adjudicating awards, be they entitlements or sentences. This is indicated in the greater emphasis on community policing and social services over indictments and convictions.

Judges and juries are considering moral luck to a greater degree in sentencing. I report this on the basis of incidental anecdotal evidence—having served or sat-in as an observer, witness, affiant, etc., for two score and three years.

Despite the tempering of sentences in light or moral circumstances and luck, there is overwhelming evidence in support of critical race theory—contending that racial bias is systemic and baked-in to regulations, laws or jurisprudence. It’s palpable to anyone like me who sits in the courts and testifies on a regular basis.

These are among the barriers to overcome in fair determination of crime and punishment.


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