Erika Kirk, Taylor Swift, and Settling Scores
In an era of retribution, a widow and a showgirl show us better ways
Teaching sentencing is a bit like teaching cooking. There are the foundational elements we go over on the first day of class. Like Salt, Fat, Acid, Heat, we’re told sentencing can be boiled down to four: rehabilitation, deterrence, incapacitation, and retribution. There are recipes to learn. A cup of sanction. A teaspoon of compassion. A quart of reprimand. And maybe a few special spices, too. It’s all supposed to add up to justice for defendant, victim, and community. Of course, with sentencing, the serving never really tastes good. It’s almost always sour. Sometimes, it can be satisfying, but never delicious.
In the federal system, the recipes are especially odd and puzzling. They start out with lots of very specific, unbending instructions. Fourteen levels for prostitution. Add four levels for fear or coercion, and five for “groups” of victims. Take off two levels for acceptance of responsibility and another two if the person has no criminal history . . . except if one of ten provisos apply. The recipes were built to be law — not guidelines, not suggestions — reviewable as law by appellate courts. They must be followed precisely, and they spawn lots of arguments to be litigated and then relitigated. There are many back-seat cooks in this kitchen.
But what’s strange about these federal sentencing recipes is that after all the precision and arguing over each element, the concoction that looks like the dish — the “final” offense level — is thrown into a blender with all the other § 3553(a) factors. There are no instructions at all about this part of the process, the blending. In the amendment year just gone by, the Commission deleted whatever had been in the Guidelines Manual on this part of the process. So, how should we factor in the history and characteristics of the offender? How about avoiding unwarranted disparities? How about the nature of the offense and the other listed factors? It’s all left up to each individual judge to decide with no guidance, no structure, no recipe beyond a list of ingredients. The two parts of the process are the inverse of each other.
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Like cooking, there is more to good sentencing than chemistry and following instructions. What defines good sentencing is also instinct and humanity. Both must be part of the mix. And like a fine meal, there is a story to tell, too, in a proper sentencing; of accountability and redemption, of reparation and the infliction of pain. Like many of Anthony Bourdin’s essays, it’s part of what makes sentencing a human and social experience. The stories can turn the recipes into justice; a blending of structure, human understanding, and storytelling.
In their book, Fear of Judging: Sentencing Guidelines in the Federal Courts, Professor Kate Stith and Judge Jose Cabranes showed how a “hopelessly complex bureaucratic apparatus” of federal guidelines ultimately dehumanized sentencing, and turned federal sentencing, at least before Booker v. United States, into a singularly rigid, repressed assembly line devoid of any enlightening ritual or meaning, one that left lots of people with bad tastes in their mouths. Since Booker, the bureaucratic apparatus remains, now followed by a freeform Step Two that takes widely different forms, depending on the judge involved. It’s an improvement for sure, but with a lot of wasted effort and a lot of room for much more improvement.
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In most circumstances, a well-done sentencing involves the exercise of judgment, not just following a recipe. It’s necessary because to some extent or another, the four purposes of sentencing all need to coexist and be accounted for in every case. Rehabilitation, deterrence, incapacitation, and retribution often point in conflicting directions, requiring a balancing that is more art than science, more social and human that algorithmic. Blending those purposes is hard, and in most eras, judges could use some guidance on it from a sentencing commission. In some eras, though, one or more purposes so predominate that we think judgment can be dispensed with. Sentencing policy is not science. It ebbs and flows with a society’s crime rate and various other aspects of its culture. It’s a reflection of that society at a particular moment in time.
When the federal guidelines were created, crime control and avoiding unwarranted sentencing disparities were the predominant purposes. Crime rates were rising, movements for social change were maturing but still growing, lots of people were scared and fleeing cities, and Ronald Reagan was elected President, and then reelected overwhelmingly. What came from that stew was, among many other things, the Sentencing Reform Act (SRA), mandatory minimum sentencing statutes, and a rigid, law-based set of guidelines. In many ways, as crime rates have fallen in the 40 years since the SRA was enacted, we’ve moved away from these purposes and away from the mass incarceration it produced, at least in part. But the Guidelines themselves haven’t.
These days, we live in an era of retribution. Cancel culture has morphed into a presidency obsessed with settling scores and meting out punishment to those who don’t buy into it. Last month, one of my former colleagues Michael Ben’Ary, who served with the Department of Justice for 20 years and was an Assistant United States Attorney in the Eastern District of Virginia, was suddenly fired in the wake of the arrival of President Donald Trump’s hand-picked choice to take over EDVA. There was no rhyme or reason for the firing except that just hours before, a social media post from a pro-Trump influencer tried to tie Ben’Ary to Deputy Attorney General Lisa Monaco, who has made her way to the President’s enemies list, and to resistance by career prosecutors to charging former FBI Director James Comey.
Retribution of the sort practiced by the President and his Administration — using governmental power to punish personal and political enemies — is corrupt and cruel. It is designed to enforce a strict code of compliance with the President’s wishes. It is imperial. But while this type of retribution is abhorrent, it doesn’t mean we can or should dispense with retribution altogether. A different sort has its place. Denying the retributive instincts in most of us — discarding it completely — is hiding from a part of the human condition.
But retribution doesn’t come in just one flavor. The President’s retribution is one based on hate and a sadistic thirst to impose pain on those he despises, those with whom he has a grievance. At the recent memorial for slain Turning Point USA founder Charlie Kirk, the President made explicit what he has shown with his actions most of his life — and certainly in the first nine months of this second Administration. “I hate my opponent, and I don’t want the best for them.” His presidency and his subordinates now embrace this variety of retribution. They inflict pain on law firms who represent perceived enemies, on universities that embrace, sometimes imperfectly, principles of inclusion the President finds distasteful, and even on individual federal workers who do their job for the American people as the Constitution requires but somehow might have been associated with ideas or people the President hates.
The President caters to our worst instincts. For most of us, just like the President, there is anger and vengeance that well up inside when we are wronged. But there are other ways to think about retribution and other ways to react to our feelings. One is for the righteous. “The answer to hate is not hate.” These are the words of Erika Kirk, the wife of Charlie Kirk. “The answer we know from the Gospel is love, and always love. Love for our enemies, and love for those who persecute us.” For Kirk, any retribution is left for God. “My husband Charlie, he wanted to save young men, just like the one who took his life.” Kirk then said, breaking down and through tears, “I forgive him.” Forgiveness is possible; grace is possible, even for horrific crimes of murder. Erika Kirk echoed the families of those murdered at the Mother Emanuel African Methodist Episcopal Church in Charleston, South Carolina in 2015. They are living examples of the grace of the righteous.
But righteous we will not all be. More than that, as Emanuel Kant reminded us a long time ago, retribution is an act of respect for law, rationality, the preservation of freedom, and the grounded truth of life here on Earth. For us for whom turning the other cheek is a bit more than we’re capable of or doesn’t satisfy our Kantian desire for justice, we have a kindred spirit in Taylor Swift. Swift has spent her career writing about the people who have wronged her and settling scores in her own way. Those songs are still coming. Swift’s retribution has always been about expressing what happened, demanding accountability, but then finding that accountability less in the infliction of pain on the wrongdoer, but in a drive to make herself the most she can be. “Someday, I’ll be living in a big old city, and all you’re ever gonna be is mean.” It’s less about hurting the people who try to hurt you. It’s about succeeding in the face of their enmity.
Swift has occasionally been accused of inflicting pain with her very public words of accountability. Point taken. Like the rest of us, she struggles with the inner hate. Unlike the rest of us, she has a platform that can do serious damage with ill placed words. But it strikes me that mostly, she processes what has happened and pushes herself to succeed and find her retribution in that.
On her new album, The Life of a Showgirl, Swift writes about a new phase in her life, with Travis and as our modern-day Elizabeth Taylor. But the album also has some of her trademark retribution. In the song Father Figure, she uses an organized crime aesthetic to hold Scott Borchetta, the head of her former label, to account. Borchetta sold Swift’s master recordings and tried to leverage his power and experience over her, only to have the tables turned. In her Swiftian way, she now reminds Borchetta, “This empire [now] belongs to me.”
Retribution may be in all of us. Maybe it should even be part of the sentencing recipe. But it doesn’t have to drive us to hate and sadism. In an era of retribution, a widow and a showgirl show us better ways, one for the righteous, and one for the rest of us.
