Practical Wisdom: The Right Way to Do the Right Thing

Rules protect against disaster but they insure mediocrity

Posted Dec 23, 2010

                                How Rules Corrode Moral Skill

[This post was co-authored by Barry Schwartz and Kenneth Sharpe]

    As we said in an earlier post, practical wisdom combines the moral will to do the right thing with the moral skill to figure out what the right thing is. The skill develops as practitioners try, and fail, and learn from their mistakes. But well-meaning administrators, unwilling to trust the judgment of practitioners, and nervous about mistakes, put rules in place that are designed to protect against disaster.

                                Lemonade
This explains what happened one fine spring day several years ago, when a father took his 7-year-old son to a Detroit Tigers baseball game. A few innings into the game, the son asked for lemonade. The father dutifully went to a concession stand to get some. Mike's Hard Lemonade was all they had, and the father, a professor of archeology at the University of Michigan, having never heard of Mike's Hard Lemonade and having no idea that it was 5% alcohol, bought a bottle and brought it to his son.
While father and son were cheering on the Tigers, a security guard happened to notice the child sipping the Hard Lemonade. The guard called the police, who in turn called an ambulance. The ambulance came to the ballpark, and the child was rushed to the hospital. Doctors found no trace of alcohol in him and were ready to discharge him.
But then the police put the child in a Wayne County Child Protective Services foster home. They hated to do it but they "had to follow procedure." County officials kept him there for three days. They hated to do it, but they "had to follow procedure." Next, a judge ruled that the child could go home to his mom, but only if his dad left the house and checked into a hotel. The judge hated to do it but he "had to follow procedure." After two weeks, the family finally was reunited.
Why did this happen? In telling this story, NPR's Scott Simon observed that, "Procedures may be dumb, but they spare you from thinking...And to be fair, procedures are often imposed because previous officials have been lax and let a child go back to an abusive household." No doubt this is true. No doubt, lax officials have turned a blind eye to child abuse and allowed it to continue. But who could possibly imagine that this 7-year-old boy's father was a child abuser.

                                               Judgment Day


     "Michael's case appeared routine," explained Judge Lois Forer. When he was brought before the Criminal Division of Philadelphia's Court of Common Pleas "[h]e was a typical offender: young, black, and male, a high-school dropout without a job....And the trial itself was a run-of-the-mill event." The year before Michael had held up a taxi driver while brandishing a gun. He took $50. Michael was caught and tried. "There was no doubt that Michael was guilty," said Forer. She had to mete out punishment. She turned to the state's sentencing guidelines. They recommended a minimum sentence of 24 months. The law seemed clear. Until Forer looked at the particular circumstances.
The gun that Michael brandished, Forer explained, was a toy gun. Further, this was his first offense:
Although he had dropped out of school to marry his pregnant girlfriend, Michael later obtained a high school equivalency diploma. He had been steadily employed, earning enough to send his daughter to parochial school-a considerable sacrifice for him and his wife. Shortly before the holdup, Michael had lost his job. Despondent because he could not support his family, he went out on a Saturday night, had more than a few drinks, and then robbed the taxi.

Judge Forer thought that the 24-month sentence was disproportionate. "I decided to deviate from the guidelines," she explained, sentencing Michael to eleven-and-a-half months in the county jail and permitting him to work outside the prison during the day to support his family:
I also imposed a sentence of two years probation following his imprisonment conditioned upon repayment of the $50. My rationale for the lesser penalty, outlined in my lengthy opinion, was that this was a first offense, no one was harmed, Michael acted under the pressures of unemployment and need, and he seemed truly contrite. He had never committed a violent act and posed no danger to the public. A sentence of close to a year seemed adequate to convince Michael of the seriousness of his crime.

Two years after Judge Lois Forer had sentenced Michael for the toy-gun hold up, Judge Forer checked on what had become of him. Michael had fully complied with the sentence. He had successfully completed his term of imprisonment and probation. He had paid restitution to the taxi driver. He had returned to his family and obtained steady employment. He had not been rearrested. But Forer's sentence had not sat well with the prosecutor. He appealed her decision, asking the Pennsylvania Supreme Court to require Forer to sentence Michael to the five-year minimum sentence for a serious offense committed in or near a public transportation facility that was required by a 1982 Pennsylvania law. Michael's full compliance with Judge Forer's judgment was not relevant to the Court's decision. It ordered Judge Forer to re-sentence Michael to the five years. "I was faced," said Forer,
with a legal and moral dilemma. As a judge I had sworn to uphold the law, and I could find no legal grounds for violating an order of the Supreme Court. Yet five years imprisonment was grossly disproportionate to the offense. The usual grounds for imprisonment are retribution, deterrence, and rehabilitation. Michael had paid his retribution by a short term of imprisonment and by making restitution to the victims. He had been effectively deterred from committing future crimes. And by any measurable standard he had been rehabilitated. There was no social or criminological justification for sending him back to prison.
When Judge Forer sentenced Michael, she knew that there were two standards that could be applied. There were the state's sentencing guidelines, which gave her the discretion she used. But there was also the 1982 statute. Five years. No discretion. She sentenced under the state's guidelines because she, like many judges at the time, thought the 1982 statute was unconstitutional. But no matter. The Supreme Court was now demanding she rescind her judgment and obey the mandatory sentencing rule. "Given the choice between defying a court order or my conscience," said Forer, "I decided to leave the bench where I had sat for sixteen years."
And Michael? He was re-sentenced by another judge to serve the balance of the five years: four years and fifteen days. Faced with this prospect, he disappeared.
Rules regarding sentencing take the judgment out of judging. They take the wisdom out of judging. And then they take wise judges out of judging.