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.