We don’t need no! Sentencing Guidelines!
I tried really hard to come up with a witty title, but this is all I could muster. After a long day stuck getting re-educated [Ed. Note: Gideon's just trying to be funny. Actually was one of the most educational CLEs ever], I’m not going to try harder. Deal.
Via Scott via Doug Berman comes word of Norm Pattis’ latest article in the Law Tribune (which I might have read if someone hadn’t snagged it right away), in which he essentially argues for sentencing guidelines. Heck, the first sentence is:
Connecticut would do well to adopt comprehensive, non-mandatory sentencing guidelines in the criminal courts.
If that’s all you take away from the article, then, yes, you should go bang your head on a table or wonder if Norm’s tried any Federal cases recently.
But there’s more. What Norm is suggesting is a solution to a state-wide problem, one that I’ve written about before and one that really needs to be rectified somehow.
Here’s what he’s really complaining about:
I stagger from the courtroom to tell my client that the court cannot force the prosecutor’s hand. I cannot offer a principled explanation to this man about why another client of mine facing the same charges in a different courthouse was made a far better offer.
That’s just it. Everything in Connecticut is so…isolated. What’s a good offer in Hartford is unheard of in Waterbury. What would get accelerated rehabilitation in New Haven gets you a trial in Manchester.
Each courthouse in Connecticut is a separate entity, it’s own fiefdom. Some are run with iron fists and some with sensibility and compassion. But the results will always be different. A case that’s worth 1 year in one courthouse shouldn’t automatically become worth 7 years in another.
A long time ago, I asked what the reasons for this might be. The most popular answer was volume. Smaller courthouses have more time and resources to devote to prosecutions. Hence, a greater emphasis on adversarial litigation and demanding the moon and less on resolving the case efficiently and moving on to the next.
But that’s not all of it. As some regular readers will attest, in a few jurisdictions, the standard offers for certain crimes start in the high 30s. That’s years, not months. The same cases can get resolved in other equally busy courts for numbers in the 10s. That, squarely, rests on the shoulders of prosecutors. There are some that know they can twist the arm of every defendant, with pliant lawyers, into pleading guilty.
Sentencing guidelines, in my opinion, are a terrible idea. What Norm sees as the virtues of sentencing guidelines, I see as its pitfalls: a rigid set of rules, determining what the sentence should be for someone in an arbitrarily defined category. Sentencing guidelines remove all judicial discretion – and in good courts – prosecutorial discretion.
What he really means is that prosecutors need to stop being so varied in their assessment of cases. That judges need to grow a backbone and stop toeing the prosecutor’s line.
Maybe the next time legislators and the general public wonder why we’re spending so much money on the criminal justice system, they’ll look at the inconsistencies in prosecutions.
It would help. Sentencing guidelines won’t.
And to make you ignore everything I’ve typed thus far, here’s Pink Floyd:
[youtube]http://www.youtube.com/watch?v=lwTpZpwjtIE[/youtube]
| Print article | This entry was posted by Gideon on November 18, 2008 at 9:53 pm, and is filed under death penalty, judges, prosecutors, psa, sentencing. Follow any responses to this post through RSS 2.0. You can leave a response or trackback from your own site. |
about 3 years ago
I’m not a criminal lawyer – but, curiously, having enjoyed the subject at University I have kept up my knowledge of the Criminal Law of England & Wales.
Inconsistency is a very real problem – enjoyed the post.
We appear, in England & Wales, to be slowly sinking into a mire of inconsistency – quite apart from the fact that we don’t have enough prisons to appease the tabloid readers as they eat their breakfasts and get outraged when judges are lenient.
It may be that I need more sleep.
(Ed Note: Scotland, although an allegedly reluctant part of Britain, has a different legal system. Although I am a Scot – I chose the England & Wales route. You will note how careful I am to refer to England & Wales. The Welsh get very irritated when we forget that they are part of our legal system in England & Wales.
I’m not sure that this post adds anything at all to the discussion – but such is the pleasure of being a blogger. The blog host can always delete!
It is 6.38 am. I went to bed at 3.56 am. I’m not entirely sure that posting on blogs after a good night is one olf my better ideas – but … there we are…. such is the pleasure of being a law blogger.
about 3 years ago
Cool pic. But what’s that coming out of his mouth? It’s a little small, and I’m having some trouble reading it.
about 3 years ago
He’s saying “Scott”.
about 3 years ago
What about a public, easily searchable, database of sentences by offense, judge, and court, and docket number? As I recall, there are books listing money verdicts and settlements for almost any tort injury you can name — why not compile the same for criminal verdicts?
about 3 years ago
That’s a good idea. It doesn’t cover all the variables, but gives prosecutors and defense attorneys a starting point.
about 3 years ago
I’ve practiced with no sentencing guidelines, with advisory guidelines, and with mandatory guidelines. Basically, I don’t like any guidelines, but advisory guidelines are the worst possible choice. In practice, they set a floor on the minimum in an indeterminate sentencing system, like that in Michigan, or a floor on the determinate sentence. Judges and prosecutors never go below the guidelines, because “the guidelines call for X.” But tough-on-crime judges will happily go above the guidlines, believing that the guidelines do not accurately capture the seriousness of a particular offense, or truly measure the horrendous nature of the defendant’s past criminal record.
about 1 year ago
I practice in Michigan. I’ve practiced with no guidelines, with advisory guidelines, and with mandatory guidelines. Advisory guidelines are the worst, because they tend to set a floor below which no judge will go in sentencing, but they are not regarded as imposing any ceiling, so the judge can go as high as he or she wants to, with no fear of meaningful appellate review. Given my choice, I’d rather go back to no guidelines, and deal with the occasional wacko judge or off-the-wall sentence through appellate litigation.