American courts are built on a promise of proportionality. Sentencing is supposed to reflect conduct, context, and legally defined limits. But in practice, a single phrase has come to dominate modern sentencing arguments: danger to society.
It sounds objective; reasonable, even responsible. It tracks in sounding like public safety.
But all too often, it is none of those things.
Instead, “danger to society” has become a lazy, rhetorical shortcut, lobbed at defendants when guidelines are inconvenient, records are messy, or accountability feels risky. It substitutes fear for analysis and speculation for law, while insulating everyone involved from real consequences except the person being sentenced.
Unfortunately, this is not an aberration. Instead, it is a structural pattern.
The Legal Fiction of “If You Let Them Out, That’s on You”
Prosecutors frequently frame sentencing arguments around a quiet ultimatum: If this person is released and something happens, responsibility rests with the court.
That statement is legally false.
Judges enjoy absolute judicial immunity for sentencing decisions made in their official capacity. Prosecutors enjoy absolute prosecutorial immunity for advocacy positions taken in court. Neither of these roles face personal liability if a defendant reoffends after release.
The fear being invoked here is not legal exposure; to say anything else would be intellectually dishonest. Rather what is really being expressed here, is reputational anxiety.
That distinction matters.
Scholars have long documented how risk framing in criminal justice shifts decision-making away from proportionality and toward defensive governance. Fear of hypothetical future harm becomes a substitute for evidence-based reasoning, even when the law explicitly rejects speculation as a sentencing basis.
The result is a system that talks about responsibility while avoiding it entirely.
Why “Danger to Society” Is So Convenient
This horribly misleading phrase lives on in courtrooms because it does several things at once. First, it is intentionally vague. It does not require metrics, comparative cases, or empirical risk assessment. It cannot be falsified in real time.
Second, it transfers the emotional burden; this is compartmentalization and cognitive dissonance in action. Judges are placed in the position of imagining worst-case scenarios, even when the guidelines already account for risk.
Third, it protects institutional actors. If the sentence is later overturned, the harm has already occurred, but accountability diffuses upward and outward. No single decision-maker bears a singleconsequence.
In short, “danger to society” is not a legal conclusion. It is a narrative device.
Immunity and the Accountability Gap
This dynamic creates a profound imbalance.
A defendant bears immediate and concrete consequences: incarceration, family separation, economic collapse, and lasting stigma.
Judges and prosecutors bear none of those costs. Even repeated appellate reversals rarely carry personal or professional sanction. At most, they result in remands, narrowed instructions, or quiet reassignment.
Legal scholars describe this as a classic moral hazard. Decision-makers are shielded from the consequences of risk-averse excess, while defendants absorb the cost of institutional fear.
What Appellate Courts Are Actually Saying
Appellate courts rarely use blunt language. Instead, they signal discomfort through repetition. Across jurisdictions, appellate opinions increasingly emphasize that:
- generalized public safety concerns are insufficient,
- departure sentences require individualized, record-based justification,
- speculative future harm is not proportionality analysis.
These opinions do not accuse trial courts of acting in bad faith. But their cumulative effect is unmistakable. Fear-driven sentencing is being quietly rejected, case by case.
When remands cluster around the same language and reasoning patterns, they are not coincidences. They are course corrections.
Risk Aversion Disguised as Justice
The most troubling aspect of this pattern is not that courts care about safety; they should. It is that the system has begun to equate restraint with irresponsibility and excess with prudence.
Guidelines are treated as optional. Proportionality becomes negotiable. And “danger to society” becomes the all-purpose justification for sentences untethered from law.
This is how systems drift. Not through dramatic corruption, but through repeated small deviations justified as caution.
Why This Matters
When fear replaces law, sentencing loses legitimacy. Communities do not become safer. They just become more distrustful.
Research consistently shows that excessive incarceration driven by perceived risk does not produce durable public safety outcomes. What it does produce is instability, trauma, and a growing gap between legal theory and lived reality.
Justice systems cannot demand public trust while operating on unexamined, unchecked fear.
Safety Requires Law, Not Anxiety
Public safety is not served by abandoning proportionality; it is served by adhering to it.
The phrase “danger to society” should describe a conclusion reached after rigorous legal analysis, not a substitute for it, and most certainly not as a bid for a promotion. Until courts and prosecutors confront the hypocrisy of invoking responsibility while hiding behind immunity, this pattern will continue.
And the cost will keep landing in the same place: on defendants, families, and communities.
Scholarly Sources & Legal References
- Steanhouse, People v., 500 Mich 453 (2017) – Proportionality requirement
- Lockridge, People v., 498 Mich 358 (2015) – Advisory guidelines and judicial discretion
- Tonry, Michael. Sentencing Matters. Oxford University Press
- Harcourt, Bernard. Against Prediction. University of Chicago Press
- Robinson & Darley, “The Role of Deterrence in the Formulation of Criminal Law Rules,” Journal of Law & Policy
- Zimring & Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime
- United States v. Lovasco, 431 US 783 (1977) – Speculative harm and due process
- Babcock, People v., 469 Mich 247 (2003) – Abuse of discretion framework
