There is no worse nightmare for a judge than learning that a criminal defendant whose charges you have dismissed, or who you have released on bail or probation, or who has completed a term of incarceration which you imposed, has committed a serious crime. Fortunately, I never had that experience, but I certainly worried about it constantly. When it appears that a woman may have been raped and murdered by a known sex offender who was within the justice system, the family and the public's outrage is palpable and certainly understandable, as in the case of Chelsea King.
How does this happen? My experience has been solely in the federal courts, where few crimes involve acts of violence like murder and rape. But I suspect that most of the state courts operate in the same or similar fashion. First, let me assure you that it is nothing like the TV judges, who rap their gavel, impose sentence or render a decision in a flash and then say: "Next case."
Federal judges receive a life history of each defendant before sentencing -- their background, their education, their work and medical history, their criminal record, their family life, etc. In some instances, psychiatric evaluations are ordered and included. Letters are considered both for and against the defendant. In essence, it is a complete biography. Those probation reports were my nightly homework, and no decision required more thought and agony than a sentence to be imposed.
All of those facts contained in the report are measured against the crime committed, the applicable sentencing guidelines and the penalties fixed by law and recommendations made by the probation officer assigned to the case and charged with preparing the report. In my very first conference with a probation officer prior to sentencing, I told him that I thought his recommendation was off by 2 years. He immediately agreed with my proposal, and I asked to have him replaced. I told his superior that I needed someone that would fight for their recommendations, not cave the minute I expressed a different view. That independent sounding board is so essential to the process, and thereafter I had a highly dedicated and competent probation officer who stood his ground and justified his recommendations, although I did not always follow them.
But sentencing is far from a science. One of the reasons sentencing guidelines were enacted was to reduce as much a possible the discrepancy based solely upon the predisposition of the sentencing judge -- the tough sentencer v. the lenient sentencer. A sentence should not depend on which courtroom a defendant walks into. But the biography, the sentencing guidelines, the penalty standards based upon the crime committed, do not spew out a uniform sentence. A judge on sentencing day hears the arguments of counsel for and against incarceration and frequently statements of remorse from the defendant; sees the anger and hatred from the victim and/or the victim's family; observes the parents, wife and children (many brought to the courtroom as infants) of the defendant, reads of the public's cries for vengeance and punishment and the personal letters begging for leniency and attesting to the good character and good works of the defendant. We also think about rehabilitation and deterrence, although I understand that rehabilitation of sex offenders is unlikely, and we have no way of knowing whether the risk of punishment has any effect.
We are not God, but we play God in these moments. The understandable public reaction in cases such as Chelsea King is to execute, forever incarcerate or medically disable persons who are likely to re-commit such terrible acts. Balancing the need to protect the public within the limits imposed by the law and the Constitution is an awesome task for a judge. We hope we get it right and avoid the horrific tragedy of families like those of Chelsea King, but sometimes we fail in that undertaking despite our best efforts or because of limits imposed by the law.
"Life is an aspiration. Its mission is to strive for perfection, which is self-realization. The ideal must not be lowered because of our weaknesses or imperfections."--Mahatma Gandhi
Thank you.
Too many angst-ridden unemployed people have enough time to try out their newly discovered government "empowerment". She said, "It's thrilling." It's a paradigm shift similar to the sixties-- on Dick Armey-Sarah Palin steroids! Or, like a preschool full of "terrible twos" Hopefully, this intensity can't out last Obama's Cool!
Judge Sarokin correctly labels the specter of a defendant who has been the beneficiary of judicial discretion re-offending in a violent high-profile manner...a "nightmare". But it's a nightmare not just for the judge and the victims.
Such cases (understandably) fuel the public's anger with criminal violence.
Opportunistic politicians who offer the panacea of "mandatory Minnimums" and other "get tough" legislation find a receptive audience in a public largely unaware of the "nightmarish" consequenses of tying the hands of judges in future cases.
Removing the trial judge's discretion by statute merely TRANSFERS this discretion...usually to DA's and prosecuters...many of whom view their responsibility to see justice done as simply convicting the maximum number of defendants...and seeing that they recieve the maximum possible sentences.
The framers tried as much as possible "beyond the passions of the mob" for a reason.
To my mind, mandatory minnimums, three strikes laws, and all such attempts to remove discretion from the trial judge are inherently unjust...and when we as a society give in to the impulse to "lock 'em all up and throw away the key"............we become that mob.
Great post
TM
We have the highest incarceration rate in the world and that's such a sad thing. Mandatory sentences have added a burden that I don't think anyone foresaw.
I always enjoy your posts and have come to greatly admire you through them.
Kindest regards,
Lisa
In light of the many DNA exonerations in capital cases in recent years, there is no longer any doubt that innocent defendants can be and have been convicted.
Its hard not to conclude that, at some point before the advent of DNA testing, at least SOME innocent defendants were likely executed............to my mind the ULTIMATE nightmare.
If false convictions can occur in such numbers in capital cases,......
(where the advocacy and stringent review standards are presumably their BEST)...
can there be any doubt that many MORE false convictions occur in non-capital cases?
Turning over sentencing discretion (de-facto) to an overburdened prosecutor (even one of maximum good faith) emphasizes all the WORST aspects of the system. Coercive plea offers in weak cases, "jailhouse snitches" fabricating evidence....not to mention the danger to our police as they try to arrest offenders facing a "third strike" or the like......
Believe me, it is not ONLY compassion for the guilty that should give one pause when contemplating these issues.
If I remember correctly, we built and funded the justice and corrections systems, TO PROTECT US FROM VIOLENT AND DANGEROUS CRIMINALS.
Citizens who believe they are made safer by making it eaiser to not only "indict a ham sandwich".....but to convict and incarcerate one...... often forget one critical fact.
When an innocent defendant is convicted......the case is closed..............and the actual perpetrator continues to walk among us.................
Thank you for your response
All the best
TM
I have a question about the sentencing of Rapist and Child Molesters, why do these criminals get plea deals? This is a crime in which the victim get a life sentence and the reprobate gets a couple of years. Rape is not a sex crime, it not sex, it is violence. The victim doesn’t have the luxury of Forgetting. It is with that person day in and day out, the rest of life, colors the victims present and future, everything they will ever do or experience. The same with children who have been molested.
Furthermore, the Statute of Limitations should not apply to these crimes, (and I have read in many states does not anymore because of the advances in DNA). Rape is murder of the soul. No person or child is ever the same, never completely whole again.
I know that these are not Federal Crimes, Judge, but I would appreciate your take on this subject. Is it the fact that these Judges who give light sentences are men, and can never realize the effect this crime has? Many Judges are women, so that can’t be the reason. I’m perplexed.
.
Really?
Speaking solely to this first statement, I would have thought you would have said condemning an innocent person and thus wrongfully and directly destroying their life and those around them.
Considering the context this is written in, I understand why the Judge stated it the way he did. And there is no reason the two cannot be equally nightmarish, in fact I would consider them on par-in both cases someone innocent is harmed.
Furthermore, treatment has been found to be very effective in preventing SO recidivism.
When enough people repeat an assertion as though it is fact, and the media amplify the assertion, we come to accept it as fact and make bad decisions as a result.
I also have a problem with judges that won't prosecute rogue police officers that continuously violate the rights of citizens and commit heinous crimes.
I also worry about judges that have special relationships with county sheriffs and outside business interests with private prison corporations and drug and alcohol assessment businesses.
I just wanted you to know that I live in western NC. One night, I was pulled over by an overzealous police officer with no probable cause. My person was searched as well as my car, then I was subsequently released at the scene of the stop.
Out of curiosity, I contacted the NC ACLU and several attorney groups dealing with justice issues about this incident. Many of my contacts have told me that this type of police procedure is common in rural areas of NC and that many police and district attorney's offices feel that probable cause should be ignored as a fundamental right of the average citizen.
My curiosity then led me to visit our local courthouse to see how justice was carried out in our small town. Many people apparently had been swept up in "fishing expeditions" by our police department and again, the lack of probable cause was brought up in many cases, yet this right was ignored by the judiciary and the district attorney's office, even though police dashcam evidence clearly showed that rights had been violated.
It does make you wonder where American jurisprudence is heading to in the future.
Even if someone held a gun to my head, I don't think I could do those terrible things. And if I couldn't do it with a gun pointed at my head, I certainly couldn't do it to continue receiving a paycheck.
Most criminal defendants in the federal system are well aware that federal prosecutors have a conviction rate around 98% nationwide. As one of my professors, a former federal prosecutor, is fond of saying, that gives prosecutors a "big hammer" when negotiating plea agreements. To turn down such an agreement, the defendant basically has to either (a) be crazy or (b) have nothing to lose.
The federal criminal cases that actually go to trial have a reputation as being, largely, slam dunks. It seems that sentencing is really the main area where federal judges have ability to influence the fate of the defendant. Yet, by this part of the trial, most defendants must either feel blindsided by a conviction, or feel that they are in the midst of being railroaded by the justice system.
In your experience, how do you think defendants perceive federal judges? As an extension of the prosecutor's office? As an impartial thrid party? Their last hope? Also, how do you think that perception affects defendants' decisions and thus, ultimately, the procedure of the legal system?
I feel that the fact federal judges are appointed for life, and not subject to reelection like state judges, should let them be perceived as more fair and impartial since they don't have to worry about reelection (and thus, as most state judges are worried about, being perceived as "soft on crime"). Unfortuneately, I think some federal judges see this as a free pass to pursue their personal agendas. I think some people see justices like Roberts, Scalia, and Sotomayor as pursuing their personal political agendas from the bench.
I also think that many people, including most criminal defendants, see the entire system (everything from the U.S. Attorney's Office to the Public Defender's Office to the Judges) as one machine designed to put people in prison. I have seen clients that are apprehensive, or outright refuse, to work with their public defender because they see them as part of the system, and therefore untrustworthy. I can only assume that they would perceive the judge the same way.
At the end of the day, though, I think that people look to the legal system for justice. No matter how jaded or pessimistic people are, they are still at least hopeful that they will find justice in court. To that extent, I think that they see judges as their last, best hope for justice.
I think the worst nightmare would be sending someone to prison and then later learning that he was innocent all along. Unless you regard that as worse than "learning that a criminal defendant whose charges you have dismissed" committed another crime, you are far too likely to convict the innocent.
Where Judges and Prosecutors and Police benefit directly in monetary ways from the number of "convictions" and 'incarcerated persons"? Where prisons are private for profit Corporations dependent upon huge number of inmates for huge profits? Where in the 21st. Century there are Chain Gangs?
Judge, your fairytale does not reach the underbelly of the Beast.
The entire system is rotten.
To err is human. To aid, MRI?
“We are not God, but we play God in these moments.”
Do you suppose, H. That if god possesses a means to determine whether humans are resorting to untruths, he chooses not use it?
I would argue that sentencing is indeed a science; not one of the "hard" sciences but a "soft" science. Legal theory can be categorized under the behavioral and social sciences, can it not? The study of and application of these types of science are as varied and difficult to define in absolutes because of the varied and in-absolute nature of the targets of study: human beings. Not to mention the political interests involved.
The old adage that punishment, in order to be at its most effective, needs to be swift, certain and in proportion to the crime needs one more element. That is that the punishment also needs to consider accepted criteria regarding the likelihood of an offender to repeat the crime when released from incarceration. In the case of sexual predatory crime, it is generally accepted this has a higher likelihood of recidivism; therefore, I would argue that this type of crime warrants punishment requiring a greater degree of separation from society in whatever form that may take.
I agree that sentencing can be more scientific, but I think the proper unit of focus should be the individual and our entire justice system needs to be focused on determining who can be rehabilitated and how... and if it is not possible, what constraints are most appropriate, taking into consideration an individual's level of danger and to what extent the behaviors are created by psychological problems.
Perhaps once determined that a person will be a recividist in something so heinous, we must keep him incarcerated indefinitely. And certainly in a probationary period there must be some oversight, possibly some conditioning. But I think it's a mistake to develop sentencing to the extent that it ignores the individual being sentenced, instead looking at them as the manifestation of a crime.
A system designed solely with rehabilitation in mind ignores the aspect of free choice. When the vast majority of people commit crimes, they know (at least generally) the consequences of committing that crime. Even moreso if they are repeat offenders, which most criminals are, statistically. Most of these people choose to commit the crime because the benefit outweighs the risk of being caught, tried, and sentenced to them.
In a way, this choice may be negated entirely if someone is worried about being jailed indefinately for any crime they commit, but that scenario is as contrary to the spirit of justice as the alternative.