VOICES
Doing Justice to Jail Time
How not to report about sentencing
A breaking development in one of the most closely watched trials of 2002 dominated the cable news shows last November 4. "Jury Reaches Verdict in Winona Ryder Case," proclaimed the caption that ran for hours on CNN. "If Convicted She Could Face Three Years in Prison."
Close variations on that second statement had appeared by then in dozens of news stories about the actress caught shoplifting in Beverly Hills. The reports that mentioned the potential sentence might as well have added that Ryder "could get hit by a meteorite." Both statements would have been true, though the chance of either outcome was virtually nil.
While reporters are instinctively wary of speculation about extraterrestrial objects, fantastic overstatements about prospective criminal sentences have been a staple of mainstream news for years. The truth eventually comes out when sentences are handed down. Ryder, for one, was ordered to pay restitution and do community service, a reasonable disposition for a first shoplifting offense. But the press isn't doing the public any favors by routinely passing on grossly exaggerated statements about how much prison time a defendant could get.
The problem is endemic in reporting about criminal cases ranging from world-famous to mundane. The boxer Mike Tyson "faces a maximum prison sentence of sixty-three years" for a 1991 date rape. He serves three. The junk-bond king Michael Milken "faces a staggering maximum prison term of 520 years" for his 1989 indictment on ninety-eight counts of racketeering, insider trading, and fraud. He's out in two. Michael Frechette "faces up to eight years in prison" for running a bingo scam in Indianapolis. He gets probation.
The pattern is repeating itself in cases that are now in pretrial proceedings. The American pilots who mistakenly dropped a bomb that killed four Canadian soldiers in Afghanistan, for example, "face up to sixty-four years in military prison if convicted of all charges," stories about that case routinely say without even hinting that such a prison term isn't remotely possible for carelessness in combat.
Reporters aren't making up the big numbers. They can be derived by toting up the maximum term for each count in an indictment. Prosecutors usually are more than happy to do the math, often conveniently listing the maximum potential sentence in press releases. The staggering numbers serve their purpose by sobering up defendants, helping induce guilty pleas. But credulous reporting of those numbers by the press leaves the public in the dark about the sentences that offenders realistically face.
The conspicuous lack of truth in reporting about sentencing has even helped push disillusioned members of the public to take matters into their own hands. A popular uprising against sentencing laws has swept across the nation in the past decade, winning passage of tough mandatory minimum sentences, rigid sentencing guidelines, and "truth in sentencing" laws that require violent offenders to remain behind bars for at least 85 percent of any prison sentence. As the argument in favor of a truth-in-sentencing initiative on the ballot in Oregon in 1999 explained, "The intent here is that the victim, the press and the public are entitled to know the reality of the imposed sentence rather than believing some announced number of months that may have little connection to what is actually served."
Paradoxically, the sentencing reforms have saddled many states with sentences that are now irrationally harsh, and prison budgets are rising inexorably. In desperation, more than half the states are scrambling to cut sentences for some offenses and some jails and prisons have been forced to make wholesale early releases of nonviolent inmates.
Injecting some truth in reporting about sentencing isn't going to produce a more rational criminal-justice system overnight. But it will produce a more informed electorate. And it won't take much effort on the part of the press.
Consider, for example, the case of WorldCom's former chief financial officer Scott Sullivan. Last September, newspaper readers were told that he "faces a total of twenty-five years in prison if convicted of all counts." While that stretched credulity, reports a few months later shattered it. After prosecutors added new charges, one newspaper reported, "Officially, he now faces 185 years in prison." In that story, the reporter added a caveat, which should be standard practice in reporting about potential sentences. "Any sentence would likely be far less under federal sentencing guidelines."
Enjoy this piece? Consider a CJR trial subscription.
