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January 6, 2006

The one-way ratchet of sentencing reform

Yesterday, in this post astutely titled "The kind of case that can prompt needed reforms," I relayed the story of a disconcerting state sentencing in a child sexual abuse case in Vermont.  In the case, the judge apparently felt that, to ensure the defendant received needed treatment, he could only impose a sentence of 60 days imprisonment for what seems like a crime meriting a much longer sentence.  And, at sentencing, the judge apparently disavowed the value of retribution and punishment in sentencing. 

Because the facts are extreme, and the judge's comments provocative, I am not suprised to see this AP story indicating that the case has already "prompted a cry at the Statehouse for tougher sentences and more effective treatment."  Here are more details about the quick political firestorm that one headline-grabbing case can create:

Republicans held a news conference Friday to introduce a bill that would require judges to impose a minimum sentence of 25 years in prison for aggravated sexual assault, sexual assault and second and subsequent offenses for lewd and lascivious conduct with a child younger than 12. Democrats responded by saying such a proposal already was part of their more comprehensive plans for getting tough on crime, a package that's the subject of hearings this week and next in the House.

Additional local coverage can be found news reports here and here, and a local editorial is here.

A lot might be said about this case and the quick reaction it has generated.  Notably, in this post entitled "Why People Are Skeptical of Judicial Discretion in Sentencing," Eugene Volokh thoughtfully explains why cases of this sort lend support for proponents of sentencing guidelines.  But, as I noted in this comment, it is also worth reflecting on the one-way ratchet sentencing reform dynamic this case reveals: just one single seemingly too lenient sentence has prompted an immediate legislative response, but often decades of seemingly too harsh sentences (e.g., all the long crack sentences for mules in the federal system) will barely create a political ripple.

All the comments to Volokh's post make for interesting reading, although I am always amazed to see a purportedly libertarian/conservative crowd show no real concerns about the problems of over-incarceration.  By my lights (and also, I think, Justice Scalia's as evidenced by his decision in Blakely), one of the greatest threats to liberty and freedom is the government having broad powers to lock people in small cages for very long periods of time.  I am often disappointed that those who claim to champion liberty and small government are not leading campaigns against excessive punishments.  Perhaps I should do a post entitled, "Why people are skeptical of libertarian/conservative concerns about liberty/freedom/small government."

One of my favorite comments on the Volokh post comes from Eric Muller of Is That Legal?: "I find this post to be a bit like one that links to an anecdote about an airplane crash and titles itself 'Why People Are Afraid To Fly.'  The sentence in this case is an outrage, but my experience tells me it is also an extraordinary aberration — the sort of aberration that is more appropriately correctable by the nuanced remedy of appellate reversal than by the broad, cumbersome, and potentially dehumanizing remedy of across-the-board sentencing regulations."

January 6, 2006 at 04:45 PM | Permalink

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Comments

obviously judge cashman has never known a victim of sexual abuse. should we fix his daughter up with a blind date with this predator after his 60 day rehabillitation class. better yet maybe we could put the judge in the slammer letting every prisoner in there that he let a child molester go. i'm sure they would love to discuss how they feel about child molesters. maybe they could just demonstrate how they take care of child molesters then he could experience what that little girl felt when she couldn't get away. i wonder why the lenancy? is he hiding a background people don't know about. should someone start investigating the judge?

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