When a judge sentences a violent criminal to twenty years in prison, citizens believe that society will be protected from that individual for the next two decades. In reality, however, it is far more likely that the perpetrator will only be detained for about eight years. That routine discrepancy can be called the sentencing illusion.
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Politicians and prosecutors frequently stand before cameras to announce lengthy prison terms in order to encourage citizens to conclude that justice has been served and dangerous criminals have been removed from society for the duration of their declared sentence.
The reason for this delusion is self-serving for all involved. The pronouncement caters to political perceptions. The reality is a product of incentives.
Prosecutors seek to be portrayed as relentless advocates for justice, and judges want to appear as impartial guardians of public policy. Yet each operates under a set of incentives that point in a different direction. As a result, crime victims, police officers, and ordinary citizens are often shocked and frustrated to find that reoffenders are back to their predatory ways after only serving a fraction of their stated sentence.
To understand why this deception has become normal operating procedure for our justice system, we must understand what drives such a policy.
It is politically expedient for the criminal justice system to appear tough. The public wants to believe that punishments reflect appropriate consequences of criminal activity. We fail to recognize that our judicial scheme primarily functions as a structure to dispose of cases efficiently, minimize costs, reduce prison populations, and move defendants through the process as quickly as possible.
Consider the role of prosecutors.
Most Americans imagine prosecutors carefully assembling evidence and presenting cases before juries. Television dramas reinforce this perception. However, the truth is that trials are relatively rare. The U.S. Sentencing Commission reported that in fiscal year 2025, 98 percent of federal cases resulting in sentencing were resolved by guilty pleas. Likewise, at the state level, guilty pleas made up between 92 and 95 percent of the convictions.
Think about what that means. The overwhelming majority of criminal cases are not decided through a public examination of evidence before a jury. They are negotiated.
This does not occur because prosecutors are necessarily corrupt or indifferent. It is because they face powerful incentives.
Trials are expensive and consume enormous amounts of time. And they carry risk. Prosecutors know that even a seemingly strong case can result in acquittal. They also like to brag about their high conviction rates. Plea bargains help them achieve both objectives.
Therefore, an armed robbery charge may become a lesser felony. A felony assault may become a misdemeanor. Multiple charges may disappear in exchange for a guilty plea to a single count.
In addition, some prosecutors are elected on reform platforms where reducing incarceration is a principal objective. Their policies can appear successful under certain metrics, such as declining prison populations, even though the underlying criminal activity has not changed.
Unfortunately, such practices result in altering the incentives of others. Victims may become less willing to report crimes when they believe little will happen, and police may become less proactive if they believe arrests will not lead to a serious prosecution.
Judges operate under their own incentives.
Many citizens assume judges are primarily concerned with imposing punishments that fit the crime. Sometimes they are. But judges also operate within a system facing constant pressure to reduce incarceration costs, manage prison overcrowding, process crowded dockets, and minimize appeals. Many courts have also embraced theories emphasizing rehabilitation over punishment.
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The result is often a pattern that has become painfully familiar.
A repeat offender is arrested. The offender receives probation. The offender violates probation. The offender receives another opportunity. The offender is arrested again. The offender enters a diversion program. The offender commits another crime. The offender receives a reduced sentence. The cycle repeats.
Unfortunately, soft-on-crime prosecutors and judges pay no price for their folly. When a released offender commits another crime, the costs are borne by victims and communities rather than by the officials who authorized the release.
The problem becomes even more pronounced when examining recidivism.
The Bureau of Justice Statistics has repeatedly documented remarkably high rates of reoffending among released inmates. One major study found that approximately 68 percent of released prisoners were rearrested within three years. Within six years, the figure rose to 79 percent. Within nine years, approximately 83 percent had been rearrested.
Yet despite decades of such evidence, the system pretends as though the next opportunity, the next diversion program, or the next reduced sentence will finally produce a different outcome.
Good-time credits, parole eligibility, and early release programs shorten confinement. In addition, concurrent sentencing allows multiple offenses to go unpunished. This is why public officials emphasize the sentence imposed rather than the sentence likely to be served.
One of the oldest observations in economics is that people respond to incentives. Yet discussions of criminal justice frequently proceed as though prosecutors, judges, and politicians operate outside that reality.
A prosecutor receives praise for maintaining a high conviction rate, not for maximizing jury trials. A judge receives pressure to move cases efficiently, not to maximize incarceration. A politician receives favorable headlines for announcing harsh penalties without mentioning mechanisms that later reduce those penalties substantially.
The remarkable thing is not that the system produces lenient outcomes, but rather that so many citizens continue to be surprised when it does.
Citizens deserve to know when charges have been reduced and know the likely time an offender will actually serve. They should understand that criminal justice outcomes are shaped by incentives every bit as much as economics, politics, or business.
A free society depends upon the informed consent of the governed. That consent becomes impossible when the public is deceived into believing that a twenty-year sentence means twenty years of societal protection.
Criminological research has consistently found that crime is highly concentrated among a relatively small number of chronic offenders. Landmark longitudinal studies found that approximately 6 to 8 percent of individuals committed roughly one-half to three-fifths of all recorded offenses, while accounting for an even greater share of serious violent crimes.
We need to revisit the incentives that drive our criminal justice system. Citizens deserve to be protected from these predators. Vicious criminals should be contained within locked doors, not recirculated into society through revolving doors.
Jim Cardoza is the author of The Moral Superiority of Liberty and the founder of LibertyPen.com. Read more of his essays there.
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