Sentencing should never be easy. It should never be cryptic and it should never be mechanistic, the product of senselessly following a matrix. A judge’s job is to synthesize and harmonize the competing narratives of the persons involved in the events of the crime with the specific intent of inclusiveness. That job stands in stark contrast to the mentality of the Sentencing Guidelines when they are mandatory. If, indeed, a judge now is again required by Supreme Court precedent never to impose a sentence he or she does not believe in, the chances of an innocent person pleading guilty and sentenced accordingly will be drastically diminished.
In this way the Supreme Court, through its recent rulings inUnited States v. Booker and Gall v. United States, has restored over the past decade a meaningful and responsible role to judges at sentencing. It is no longer acceptable for them to be wooden bureaucrats and they must craft sentences appropriate to the circumstances of the case. The searching inquiry required should enable the judge to vacate a coerced plea or one that is made as the lesser of evils. My question then is this: am I and my fellow jurists doing enough each day to implement this mandate, to replace the mindless practice of assembly-line plea bargaining with a process that is based on integrity and that aspires to justice rather than succumbs to the cynicism of convenience?
It is perhaps helpful to think of sentencing in terms of the classical Greek word for “injustice.” The literal translation is “out of balance.” Doing justice is an act of restoring balance. Human nature discourages venturing into this area without a template that allows one to fill in the blanks — and so to follow the rote responses of bureaucracy. But putting the thumb of convenience on the scales of justice is precisely what causes the innocent to plead guilty. It is the inevitable result of a laconic adherence to a thoughtless and passionless process. And we all can do something more about it.
Monday, December 29, 2014
In support of Judge Rakoff
Judge John L. Kane has now joined Judge Rakoff in calling for reform in the criminal justice system because too many innocent people are pleading guilty. From the conclusion to Kane's essay in the Marshall Project: