When it comes to sentencing, judges should:
(A) Have the flexibility to look beyond specifics of the offense and mete out punishment based on a deeper fairness that takes into account individual circumstances of the offender, including socioeconomic background and prospects for going straight.
(B) Have before them the equivalent of a restaurant menu -- so much time for simple assault, so much for manslaughter, so much for armed robbery -- and mete out sentences solely on the basis of the offense.
Naturally, your choice says a good deal about what you think of the power of environmental influences, the requirements of fundamental justice and the fairness of judges.
I think it may also say something about your views regarding affirmative action.
I'm speaking here not of the "wider net" approach but of the sort of affirmative action voters struck down with California's Proposition 209 and the 5th U.S. Circuit Court of Appeals ruled out in a Texas case called Hopwood.
If you chose (A), you may trust university admissions officers to take into account not just test scores and other objective criteria but also the obstacles an applicant has overcome, the social, political and economic status of the group the applicant comes from and his or her prospects for benefiting from an education at a competitive school.
If you chose (B), you're likely to want the universities to publish admissions criteria and then -- with certain "reasonable" exceptions -- stick to them. (You wouldn't want to make it unlawful for a restaurateur to give special attention to big tippers or to celebrities whose regular presence might bring prestige to the establishment.)
The point is, there's no right answer. Or, rather, that the right answer depends on the picture you have in mind at the time you choose.
Black Americans, for instance, used to doubt the fairness of "admissions officers" -- whether at a Deep South university or at certain places of employment. We thought they were looking for an excuse to keep us out. Our choice, in those days, was (B): Tell us what your requirements are, and judge us accordingly. Your subjective judgment is probably my exclusion.
Today, we are likely to believe the people in the "admissions" office -- particularly at the leading universities -- want us in if we come anywhere close to meeting the admissions standards, and so we opt for (A). That sounds like rank selfishness -- an endorsement of whatever gives "my" side the advantage. But it is more complicated than that.
Some of us really do believe that a repentant offender -- or a desperate one -- should be treated differently at sentencing than an unremorseful, opportunistic felon. Some of us would argue that the junkie who sells drugs just to supply his own habit should be handled differently -- perhaps given probation and referred to treatment -- than the person for whom the illegal drug trade is a business enterprise. And some of us might call it reasonable to distinguish, at sentencing time, between the poverty-stricken youngster whose neighborhood is a hotbed of crime and the upper-middle-class felon whose family afforded him every advantage.
In much the same way, we might contend that affirmative action ought to be available, in close cases, as a subtle thumb on the scale to help those whose circumstances have given them few advantages.
Many of us would go further to argue that -- just as the restaurateur pays attention to the prestige quotient of the overall mix of his clientele and not merely to the ability of each would-be diner to pay -- universities ought to pay attention to what we've come to call diversity. As a matter of fact, most of them do. The trouble is that the trend in state law and court rulings is to make it more difficult for them to pay attention to anything that might be a proxy for race.
The whole issue of race and college admissions is far from settled -- legally or philosophically. The point here is that it might be helpful if each side could resist the temptation to brand the other as indifferent to the continuing effects of racism or to academic standards.
To a greater extent than either side is willing to acknowledge, most of us would choose both (A) and (B).