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March 24, 2011

Former state judge laments "The Injustice of Sentencing Guidelines"

Glenna Hall, a retired superior court judge from Washington state, has this new commentary in The Atlantic headlined "The Injustice of Sentencing Guidelines." Here is a snippet:

For me, sentencing, particularly for drug crimes, was in many ways the hardest part of my work as a judge.  Not because the decisions or the work were hard (though of course they were), but because, given the restrictive nature of the sentencing guidelines in Washington, I had virtually no discretion or authority to consider anything about the human being standing before me.  I could consider only the nature of the crime, expressed in a number, and the number and kinds of offenses the defendant had committed, also expressed in a number.  From those two quantified factors was derived a quite narrow range I was required to use in imposing a sentence.  Except in a minuscule set of circumstances, I could only work within that range.  The temptation not to think at all but rather to pick a number in the middle was strong.

One Friday afternoon, during a weekly sentencing calendar, a middle-aged man in jail clothes stood before me.  Except for the orange jumpsuit, he could have been the guy behind the counter at the bank or post office.  His offender score was very high; he had a pages-long list of prior convictions: relatively minor drug crimes alternating with theft convictions and other crimes related to getting money to sustain a drug habit.  He wept as he told of us his long addiction and his recent attempts to get clean.  He couldn't go on living this way, he said.  He'd tried unsuccessfully to get into a treatment program, and he knew he wouldn't get any meaningful help in prison.  He begged me to help him get into some kind of program.  He was utterly convincing, and I realized he truly had grown ineffably weary of the addiction cycle and was ready to change.  By the time he finished speaking, I was the only person in the room not crying.  With a heavy heart, I told him the law gave me no choice: I had to give him a multiple-year sentence.  There were no available exceptions, and the prosecutor had no interest in finding a way to get this man the help he needed.

People like this appeared before me week after week.  I hated Fridays.  I came home from work with the memory of what seemed to me to be injustices I had done.  I considered resigning from the best job I had ever had.  I didn't quit, and I rotated off the calendar that involved weekly sentencings.  Later I volunteered to take on sentencing calendars that were harder to deal with but that carried penalties that seemed more rational to me than those required for drug crimes.

Eventually, Washington revised its drug sentencing laws to permit more leeway and more treatment options, but the state still has mandatory sentencing guidelines that can lead to harsh and unyielding results.

March 24, 2011 at 08:55 AM | Permalink

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Comments

We have and need guidelines and mandatory minimums because of bleading heart judges who give probation in one case and another law and order judge gives 15 yrs in another similar case. Drug cases are some of the hardest because you cant believe the offender 99% of the time. They lie and steal to get the drugs, why do you think they are now telling the truth in front of a judge when their rap sheet is 20 pages long.

Posted by: DeanO | Mar 24, 2011 9:12:54 AM

Powerful piece. Philisophical discussions of separation of powers aside, this really buttresses the arguments against mandatory sentencing guidelines. They serve a purpose, but at what cost?

Posted by: Alex | Mar 24, 2011 9:16:59 AM

I would be interested in how many times the highlighted offender had looked similarly convincing at sentencing. I would think in most cases the repeated history is more telling than the few mintes or hours in the presence of the judge. And that is why such guidelines are so important, they curb the judge's instinct to give disporportionate weight to those few minutes. Most people have a strong beleif that they can accuratly judge someone's character in their presence, but all the research I've seen on the point indicates that beleif far overshoots reality.

Posted by: Soronel Haetir | Mar 24, 2011 11:09:53 AM

Among its other flaws, the article conflates two very different sentencing realities: The METHOD used to determine the sentence (guideline driven rather than discretionary) with the CONTENT of the sentence, which is largely driven by substantive criminal statutes.

There is no reason in principle that a mandatory guidelines method of sentencing could not produce substantively lenient sentences. Or, as more than one defense lawyer told me, the problem with the pre-Booker guidelines was that the number of months in each range was too high, not that ranges were determined by scoring (although they didn't care for the scoring). If the number of months in the little boxes was a lot lower, no one would have been complaining that there were boxes or how the numbers got in them.

As ever in law, what people say they're concerned with is procedure, but what they're actually concerned with is results. The increase in the 80's and 90's of Congressionally mandated high sentences for drugs, porn and some forms of fraud was the driving force of the discontent. The guidelines were along for the ride, but were at most a catalyst, not a cause.

Posted by: Bill Otis | Mar 24, 2011 11:11:00 AM

Procedure is rather important to me, however, at the end of the day, if the client gets a favorable disposition, I can suffer any procedural anomalies. I see procedure as the vehicle to obtain the favorable result, because, there are plenty who are blind to procedure, even of the constitutional kind. The the great thing about this blog, and the preceding text book (which I'm happy to say I used in law school, and was quite excited to get my hands on), the recognition that there is a lot of good work to be done at sentencing.

Oh, and Bill, I have not forgotten about that Gertner project.

Posted by: = | Mar 24, 2011 11:51:36 AM

= --

I think you promised that the "project" would be finished a month or two or three ago, but I won't (and can't) hold you to anything.

If you care to pursue it, however, you might find useful the piece below from Kent Scheidegger that he posted on Crime and Consequences:

The sentence a convicted defendant receives should depend on what he did and what he has done before, not which judge he draws. The Sentencing Reform Act of 1984 was the product of a rare bipartisan consensus on criminal law that judge-to-judge disparity had gone too far and needed to be reined in. The Supreme Court threw out the key element of that reform, mandatory sentencing guidelines, in the Booker case in 2005. We didn't need to be clairvoyant to predict what would happen.

Jonathan Saltzman reports in the Boston Globe:


Since the US Supreme Court struck down mandatory sentencing guidelines five years ago in a landmark ruling, the difference in the average sentences of the most lenient and most severe federal judges in Boston has widened, according to a new study that says the trend threatens to undermine fairness.


Now that the guidelines are only advisory, the three most lenient jurists impose average prison sentences of slightly more than two years for all crimes, said the study in the Stanford Law Review published this week. The two toughest impose average sentences double that. ###

You might also want to track down the Stanford Law Review piece Kent refers to.

Posted by: Bill Otis | Mar 24, 2011 12:38:52 PM

I hope I didn't make such a promise, as that would be embarrassing, however, life likes to get in the way of the best-laid plans...

Posted by: = | Mar 24, 2011 1:40:49 PM

"With a heavy heart, I told him the law gave me no choice." In my opinion, that statement overlooks the Eighth Amendment's prohibition against cruel and unusual punishment. Since Marbury v Madison, judges have been authorized to trump the legislature if something is unconstitutional.

And Graham v Florida makes it clear that when it comes to determining whether a sentence is constitutional it is solely the judge's responsibility to decide the issue.

bruce cunningham

Posted by: bruce cunningham | Mar 24, 2011 3:09:48 PM

Bruce,

Except excessively long sentences are entirely usual.

Posted by: Soronel Haetir | Mar 24, 2011 3:25:38 PM

@ Bruce:

Perhaps I'm misreading or overreading, but you can't seriously be arguing that whenever a sentence required by the statute strikes the judge personally as unduly harsh, or otherwise gives the judge a "heavy heart" it makes it a violation of the Eighth Amendment for the judge to impose it. If so, I guess not only the sentencing guidelines but the substantive content of the Constitution itself would mean very different things depending on which judge's courtroom you're in.

Posted by: guest | Mar 24, 2011 3:48:43 PM

Guest, the part of the sentence I was concerned about was the notion that there is nothing a judge can do. Being heavy hearted is clearly not the standard for Eighth amendment evaluation.

I subscribe wholly to Justice Kennedy's three step test in his concurring opinion in Harmelin v Michigan. Which was employed by all but Scalia and Thomas in Ewing v California, and finally became firmly established in Graham v florida.

The first step is a threshhold inquiry into whether there is an inference of disproportionality between the sentence and the crime. If so, then the judge engages in an interjurisdictional comparison and an intrajurisdictional comparison. That is, what does the same state punish for different crimes (intra) and what do other states punish for the same crime (inter). After performing those three steps if a judge believes that the particular punishment is grossly disproportionate to the offense, taking into account the factor recidivism as Justice O'Connor said in Ewing, then an order could be entered striking the sentence as unconstitutional.

Soronel, you're right about the fact that excessively long sentences are no longer unusual.

bruce

Posted by: bruce cunningham | Mar 24, 2011 4:57:22 PM

Searched for the information on this theme, and only here I found it. And Graham v Florida makes it clear that when it comes to determining whether a sentence is constitutional it is solely the judge's responsibility to decide the issue.

Posted by: Femmes russes | Mar 24, 2011 7:47:33 PM

Drug addict with a thick dossier of arrests, running his con, and making the audience weep. Not a basis for law and sentencing policy.

Not one word of concern or even of awareness of the harshness of the extra-judicial punishments endured by the victims of this defendant.

The lady is morally repugnant.

Posted by: Supremacy Claus | Mar 25, 2011 5:26:52 AM

I'VE READ THROUGH THESE COMMENTS AND IT SEEMS TO ME THAT THE PEOPLE LEAVING THE COMMENTS HAVE NEVER BEEN THAT "GUY STANDING BEFORE THE JUDGE". I FEEL THAT THE OPINIONS LEFT WERE HEARTLESS AND VERY BLACK & WHITE.
NOTHING IN OUR LIVES IS OFTEN BLACK & WHITE- ESPECIALLY WHEN AN ADDICTION IS INVOLVED.
SENDING A PERSON TO PRISON BASED UPON A HISTORY OF MINOR DRUG OFFENSES IS NOT GOING TO SOLVE THE PROBLEM. (AT BEST IT IS A QUICK FIX FOR THE MOMENT). I BELIEVE THAT IS THE REASON THAT THE PRISONS ARE EXTREMLY OVERCROWDED AND THE CRIME RATE IS NOT GOING DOWN.
I HOPE THAT WE CAN OPEN OUR EYES AND SEE THAT (AS W/ ANY ADDICTION), TREATMENT FOR THAT ADDICTION IS NEEDED TO OVERCOME THE PROBLEM!!
WE AS A NATION NEED TO ALSO DO MORE STUDIES ON AFFECTIVE TREATMENT PROGRAMS AND INVEST ALL THE MONEY THAT IS WASTED ON PRISONS TO HELP THESE ADDICTS WITH THEIR ADDICTIONS SO THEY WILL STOP DOING CRIMES TO FEED THE ADDICTION. WE NEED TO LOOK AT THE BIG PICTURE HERE AND NOT SWEEPING IT UNDER THE RUG TO MAKE IT LOOK NICE FOR A FEW MINUTES BUT FOR A LIFETIME...

Posted by: jme | Apr 11, 2011 4:00:50 AM

Thanks for your share,thanks a lot.Good luck!

Posted by: Big pony | Apr 11, 2011 6:17:05 AM

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