"Confessions of a Sentencing Judge"

The title of this post is the headline of this notable new commentary by former federal Judge H. Lee Sarokin just posted at The Huffington Post. Here are excerpts:

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....

[S]entencing 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.