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October 31, 2006

Can procedural injustice produce substantive justice?

An interesting state sentencing case reported in this article from Utah highlights the uncertain relationship between procedural and substantive sentencing justice.  Here are the basics:

Authorities are investigating whether a controversial Utah judge secretly knocked 10 years off a sex offender's prison sentence.  Third District Judge Leslie Lewis allegedly had an ex parte (one side only) conversation with a defense attorney and subsequently reduced his client's sentence by 10 years without consulting prosecutors....

Defense attorney Roger Kraft said it all began with a bad day he had in Lewis' courtroom on Feb. 10.  Kraft was before Lewis for the sentencing of his client, 46-year-old James Robert Scott, who had pleaded guilty to three counts of sodomy on a child.... Lewis ordered Scott — who had sexually abused a 7-year-old girl — to serve 30 years to life in prison by running three 10-to-life terms consecutively.  Prosecutors had asked for 30 years to life, but a pre-sentence report recommended 15 to life.

Back at his office after the sentencing, Kraft penned a letter to Lewis to vent his frustration.  "It is my job to argue BEFORE the court and not WITH the court," Kraft wrote.  A month later, on March 15, Kraft got a phone call from Lewis, who offered an apology.  "She said she went back and watched the video [of the hearing] and said I was 90 percent correct in my letter," Kraft said.  Kraft said his letter did not ask Lewis to reduce Scott's sentence.  But during their phone conversation, Kraft said he told the judge, "I'm hoping our [courtroom] banter didn't cost my client an additional five or 10 years."  After Kraft reminded her of the stiff sentence, Lewis said, "If I still have jurisdiction, I'm going to change that," according to Kraft. 

Offering to reduce Scott's sentence by 10 years, Lewis promised to send Kraft documentation of the change, he said.  Then Lewis said something that turned Kraft's pleasure to discomfort. ''She said, 'I would appreciate it if you don't discuss this with the prosecutor,' " Kraft recalled.  ''She said it at least two, and maybe three, times.''...

The article continues to explain that Judge Lewis doctored the docket in order to change the defendant's sentence to 20 years' imprisonment without telling anyone, and that the defense attorney reported the change when he found out about it months later.

There are many interesting facets of this case, including the fact that Judge Lewis has gotten in trouble for other courtroom behavior and is facing a retention election.  What may get lost in the commotion, however, is that even the reduced sentence of 20 years was five years longer than what the pre-sentence report recommended.  Though there seems to have been lots of procedural injustice in this case, was substantive justice perhaps ultimately served?

October 31, 2006 at 06:41 PM | Permalink


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I would sincerely hope that no lawyer, however pro-defendant, would think for a minute that the end justifies the means here. A judge who concludes she has made a mistake can correct it openly and honestly, if the trial court still has jurisdiction. Those who do not have the courage to do that should find another line of work. I also hope that this judge is soundly defeated in the election.

Posted by: Kent Scheidegger | Oct 31, 2006 7:06:22 PM

Of course justice was served--the defendant got a more reasonable sentence.

A judge should ALWAYS have jurisdiction to reduce (but not raise) a defendant's sentence. I realize most courts lose plenary power after 30 days (or a similar timeframe) to modify a judgment, but I'm talking about how things SHOULD be. Sentence someone, appease the victims and "victims' rights" groups and whatever other political group is clammoring for an unjust punishment. Then, if the defendant has not killed anyone in prison or escaped, reduce the sentence to something reasonable. ONE year is a helluva long time to be locked in a room; we toss out sentences 15 or 20 years (YEARS!) at a time in this country. Only the most egregious crimes (9-11, for example) should warrant a sentence of 20 years or more. And 20 would be sufficient.

I guess what I'm saying is yes, justice was done, even though the judge in this case went about it in a poor and probably unlawful way. It sounds like she is moody and acts according to her daily, constantly changing feelings (I will spare you any comments about PMS and female judges). But it should not be unlawful. The court should have jurisdiction so long as a defendant is under sentence from said court, and a judge should be permitted to LOWER a defendant's sentence any time, sua sponte, as much as the judge wants without hearing, and without having to show cause or justification. This would be a good start to having more reasonable sentences in this country. Justice would be served.

Posted by: Bruce | Oct 31, 2006 10:39:20 PM

Had it gone the other way (judge adds time onto the sentence, but still gives a defendant a lesser sentence than the defendant asks for), I doubt this blog post would read the same way.

I personally think there's nothing wrong with executing people who sexually abuse small children, but I can live with 20 years for that sort of thing, so I'm willing to look at this case in procedural terms.

I question whether one's notion of "substantive justice" in all of these cases depends on whether you think sentences are too long or too short, generally. If you think this guy deserved death, then this news story would be an outrage. If you think that this guy deserved not to spend a day in prison, then maybe this worked out for the best. I think a lot of the debate about sentencing practice in the United States is about little more than this. I think Bruce is completely wrong, but I appreciate him being forthright about the ends he desires.

Is there really any merit to "prior good deeds factors," "alternative sentencing," "shaming," etc., other than that they result in shorter prison sentences?

Posted by: AngryVoter | Oct 31, 2006 11:16:46 PM

Why are "small children" so darn special? I'm not advocating hurting or molesting children, but our society seems to have this impression that if you simply touch a child in the wrong way, it will be broken forever. I think... no, I know... a big part of that is criminals or people accused of crimes (e.g. Mark Foley) saying they did it because they were touched wrong when they were a child. People believe that, some quack psychiatrist will say "oh yes, that explains it" and even though there is no evidence whatsoever the person was, in fact, molested, he or she will get sympathy. Hopefully our society will get cynical and distrusting of this tactic sometime (maybe with Mark Foley?)... but I doubt it. Yes, molesting a child is a bad thing, but it's not worse than robbing 100,000 dollars from a bank at gunpoint. Surely not worse than murder.

And what's your definition of "molest"? A 17 year old girl who fellates a 16 year old boy is typically defined as a "sex offender" and "child molester" and already has to deal with the sex offender limitations (poor girl probably couldn't even go to a Halloween party). And now you want to execute the poor girl.

Sex crimes, particularly ones against a child, hardly ever have a corpus delicti, and are based solely on outcry statements or other hearsay at least 85% of the time. Every now and then there might be a physical sign of trauma, but that is it, and the connection of that trauma to the crime is always based on a statement. There's never a dead body. There's never missing cash. There's never a video of the molestation. And people LIE. Particularly young women. The last two rape trials I've worked on it was clear to me, and fortunately to the jury, that the complainant was nothing more than a lying, malicious little bitch. So two people are currently free because two immature, stupid females were not good actors (the second one didn't even do the crying thing on the stand when the prosecutor asked "now tell the jury what happened"). I think most women who are going to lie to get a person thrown in prison for decades, or even life (or executed in your world) have a lot of experience lying and are probably pretty good at it, which makes them more dangerous on the stand.

If it makes you feel better, I will concede that probably 50% of the people currently rotting in prison for "sex offenses" are probably guilty, but their sentences far exceed the seriousness of their crime.

Posted by: Bruce | Nov 1, 2006 8:59:59 AM

Bruce, your comments are stunning. Are you starved for attention?

Posted by: | Nov 1, 2006 11:58:58 AM

I take it you disagree with me, dear anonymous poster?

What's so stunning?

Posted by: Bruce | Nov 1, 2006 12:54:17 PM

The comment Why are "small children" so darn special?

Other than the fact that they cannot protect themselves.

Your flippancy with respect to awful crimes against children (and I am aware of some awful miscarriages of justice with respect to accusations of child molestation, and I also agree that some "Sex offender" laws can be a waste of resources) is repulsive. It leads me to believe that you are simply begging for attention.

Posted by: | Nov 2, 2006 9:37:58 AM

Figured. How dare anyone even imply that "small children" (what abour really fat, grossly overweight ones?) are not the most special, precious thing in the entire universe.

There are plenty of people who can not protect themselves. It's a very bad thing to take advantage of such a person, particularly when sexual gratification is the goal. But it's not the worst thing in the world, particularly if no force is used. Fellating a 16 month old baby is a horrible, disgusting thing. But let's not pretend that it permanently destroys the child. DWI homicide is a much worse crime as far as I'm concerned. So are murder, genocide, forcible rape, aggravated robbery causing serious bodily injury, and plenty of other crimes. I'm not saying such an offense is worth only a $100 "ticket" of some sort... no, I assure you I do believe it is a bad thing. It's disgusting too, but that's not relevant to the administration of justice.

We obviously have reached the point in our society where we measure everything we do (or should not be allowed to do) by how many dead children do or will result. As such, over at my website, http://brucem.livejournal.com/55557.html I have calculated how many dead children many valuable rights and liberties are worth. For example:

Right to bear firearms: 200,000 dead children
Right to privacy: 48,660,000 dead children
Liberty to drive a car: 19,000,000 dead children
Right to contraception: 22,000,000 dead children
Right to smoke tobacco: 7,500,000 dead children

I also estimate the DCV (dead children value) of other lesser liberties. The sad thing is, many people, and you sound like you might be one of them, would come right out and say none of these rights/liberties is even worth ONE dead child. Would you really give up your right to due process or free speech to save one random child from dying? I sure hope not. So, how many dead children are these rights worth? I've given my estimates. What are yours?

Posted by: Bruce | Nov 2, 2006 2:16:52 PM

Uh, Bruce, when you send people away for doing that to 16 month olds, you do it to punish that sick act and because people who do that to 16 month olds also do other things too--it's called incapacitation. And just because we're too lenient on one issue, doesn't mean we should be lenient on all things. We also punish people for doing this stuff to children because you'd have a hell of a lot of vigilantism if people who did that to children got off.

Just today Bruce, a murderer of a five year old who served 25 years for his crime reportedly confessed to the murder of a 16 year old girl. Sex offenders and murderers are dangerous people--society should err on the side of incarceration. It did not in the murder case I mention, and a 16 year old girl will be put in the ground as a result. Comparing that to things like driving a car (and the inevitable accidents that result) is sick.

Bruce, you win, you got some attention.

Posted by: | Nov 2, 2006 3:57:16 PM

I absolutely disagree that we should "err on the side of incarceration." There's a saying that it's better for 100 guilty people to go free than for one innocent person to be wrongly convicted and sent to prison. You are saying you disagree with that. You're in the majority, though. Most people would rather 100 innocent people be locked up than for one guilty person to be set free. Innocent people don't rob, steal, rape, kill, or molest. So if they're wrongly locked up, that's unfortunate, but our safety premium is not affected. However, if one guilty person is set free instead, we're all in danger, or more specifically, god save the children. But there are more important things than safety, or to be more specific, the illusion of safety (I'll spare you the Ben Franklin quote which has become a cliche during the Bush administration). What about the presumption of innocense? Just because little Billy says uncle Jimbo twiddled his wee wee doesn't mean it didn't happen. Maybe Uncle Jimbo wouldn't buy little Billy the Sony Playstation 360 that all his friends have, saying Billy should get a summer job to earn some money and buy it himself. Time to teach Uncle Jimbo a lesson.

But when you turn on the TV and all you see on the news is "predator this" and "predator that" and "to catch a predator" and "predators in schools" and "predators in your neighborhood" and "predators next door" you will begin to think that this is a serious, widespread, pandemic problem. It's just not. But talking about it sells newspapers and commercial time.

It's a problem, but it's not the biggest problem we have, nor is it the worst crime there is. Nor are you children in danger at the moment. Take a breath, chill, and focus on having a fair and reasonable system of criminal justice.

Posted by: Bruce | Nov 2, 2006 10:28:09 PM

Posted by: | Oct 28, 2007 3:44:13 PM

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