Tuesday, June 11, 2013

Is sentencing out of whack?

A number of people sent me interesting emails about sentencing philosophy after reading yesterday's post. One reader sent me this link to Judge Laurie Smith Camp's posted philosophy on sentencing, which ends this way:

As a judge, I do not consider my role to be that of an instrument of public vengeance. In the words of Clint Eastwood in “Unforgiven,” – “We all have it coming.” In the words of Dustin Hoffman in “Papillon” – “Blame is for God and small children.”

Meantime, another judge found that the meth guidelines make no sense:

Sioux City-based U.S. District Judge Mark Bennett on Friday became one of a handful of U.S. judges to declare public opposition to federal sentencing guidelines for methamphetamine dealers.

He wrote that he considers them to be “fundamentally flawed,” not based on empirical data and too harsh for lower-level drug figures.

Bennett — declaring in a 44-page ruling that he has a “fundamental policy disagreement” with the methamphetamine portion of guidelines that federal judges are supposed to consider in sentencing criminals — cut the sentence of Sioux City drug dealer Willie Hayes to six years and three months from a possible 15 years, eight months.

And yesterday, the Supreme Court ruled that applying a new version of a guideline violated the ex post facto clause if that guideline called for a higher sentence, even though the guidelines are now advisory.

What a mess.

The guidelines, and sentencing in general, has become a lot like the tax code.  No one likes them, but no one has any really good ideas on how to fix them.

Sometimes, I think the solution is the state system, but then I see that Chad Ochocinco was sentenced to 30 days today even though the plea agreement called for no jail time because he congratulated his lawyer for the result by slapping his behind.

Maybe it's the Texas system where the jury issues the sentence...


Anonymous said...

I once and thankfully successfully, represented on appeal a young man (age 28) who, through horrible lawyering, (Yale Galenter) pled open in state court before now (thankfully) former Judge Adrian, to a drug case with a 7 year minimum mandatory. Adrian, wonderful human being that he is, gave this 28 year old father of two with one juvenile burglary prior 30 years! It was a simple buy bust, with no violence, firearms, unusual circumstances, etc.

The lesson is that we need to pick our judges very very carefully. It is not the big publicity case that we need worry about, but the day to day actions of someone who can arbitrarily wreck the lives of people and mostly get away with it.

We also need to recognize the flawed philosophy behind minimum mandatories which is this- the legislature has decided to invest more trust and power in a prosecutor (in state court that can mean someone 25 years of age) than a judge (hopefully someone with decades of life and legal experience) because only a prosecutor can waive a minimum mandatory.

Anonymous said...

Your posts on sentencing have always been fascinating reads for me. Please keep up the good work.