September 21, 2005
Continued sentencing dialogues in the blogosphere
Other bloggers are continuing thoughtful discussions of some recent sentencing news items and posts:
- Spurred by the recent Tyco sentences, Stephen Bainbridge asks in this post whether first-offender white-collar criminals should serve their sentences in a maximum security prison; Dave Hoffman at PrawfsBlawg follows up here.
- Spurred by this recent post on shaming punishments, TalkLeft in this post calls upon judges to "spend their creative energy coming up with better [alternative sentences] that don't demean and further alienate the offender."
September 21, 2005 at 12:59 AM | Permalink
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(copy of my TL post)
back to the subject, my two cents.
Once you give your judiciary the power to impose any penalty statutory or not, you need to brace yourself for abuse. There is no such a thing as perfect judiciary, in fact in the system where they enjoy the status and powers of medieval overlords such abuse is virtually guaranteed, as any lawyer practicing in this country especially in the South can attest to.
On a more fundamental level the power of any government to penalize its citizens is inherently dangerous. For that reasons most modern legal systems strictly define what penalties are available and their applicability. It is usually the elected legislature that has a sole power of defining what the government can do to a citizen*. That drastically reduces the potential abuse by the government, judiciary included. Little to no accountability, a few to no limitations especially when meting out extra statutory penalties is inherently inconsistent with basic precepts of democratic societies. But for some strange reason this is the reality in this country. Appealing to their sense of fairness, civility or appropriateness to reduce the widespread abuse as suggested by TL and Turley is fine. But it will take reducing their powers back to the level consistent with fundamental democratic principles to eradicate it.
*this is not to say that legislatures are always mindful of protecting rights of citizenry. Plenty evidence to the contrary, And that is the reason why judiciary should always have the power to proclaim on constitutionality of statues.
Posted by: wg | Sep 21, 2005 9:25:17 PM