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November 7, 2004

Imagining a "Sentencing Judges Hall of Fame"

In a (personal favorite) post here last month, I cast current Supreme Court Justices as legendary baseball players while speculating about who would write the opinion for the Court in Booker and Fanfan.  Today, I found myself imagining a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system.  (Compare the mission statement of the Baseball Hall of Fame.)

The first inductee of the Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms.  (Compare the "First Five" in the Baseball Hall of Fame.)  But tough questions follow: should there be separate capital and non-capital wings, state and federal wings, trial and appellate wings?  Would Supreme Court Justices and judges who serve on sentencing commissions have an unfair advantage because of the visibility of their sentencing work?  Would pre-guidelines judges be unfairly disadvantaged for sentencing during the "dead law" era?

You should blame these perhaps silly ruminations on US District Judge Nancy Gertner, whose latest sentencing effort made me want to bestow some kind of award.  This weekend I had a chance to read Judge Gertner's amazing opinion in US v. Green, 2004 WL 2475483 (D. Mass. Nov. 03, 2004) (also available here), in which she astutely explains why in a federal capital case she "will impanel two different juries, if necessary, for each death-eligible defendant, one jury to determine guilt or innocence and the other to reject or to impose the death penalty." (A Boston Globe account of the decision is available here.) 

Of course, regular readers know we can thank Judge Gertner for trenchant Blakely analysis in US v. Mueffelman, 327 F. Supp. 2d. 79 (D. Mass. 2004). Moreover, in the last month alone, Judge Gertner has added to her corpus of compelling sentencing opinions with US v. Woodley, 2004 U.S. Dist. LEXIS 21904 (D. Mass. Oct. 29, 2004) and US v. Jurado-Lopez, 2004 WL 2251832 (D. Mass. Oct. 06, 2004). It seems that Judge Gertner hits a home run every time she steps to the sentencing plate.  (However, Judge Gertner's sentencing dingers are not quite as timely as Judge Paul Cassell's recent efforts, and no one can match Judge Jack Weinstein's tape-measure sentencing opinions).

I encourage readers to use the comments to nominate inductees for the Sentencing Judges Hall of Fame.  It helps pass the time as we await a decision in Booker and Fanfan, a decision which may change sentencing history and will surely add to modern sentencing lore.

November 7, 2004 at 08:26 PM | Permalink


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Just a lowly law student here. The Massachusetts setting for this brings up an interesting, (though off-topic), question, how significant is the death penalty in the quixotically coded "blue-state vs. red-state" cultural divide that has become the fashionable topic of the chattering class since last Tuesday? This is an issue that divides true blue-Boston from "red states" like Texas and Florida, not only in practice but also in basic conceptions about the fundamental morality of the state executing its own citizens. Too many people are looking at these differences at the micro level, aka the gay marriage flap, and not the macro level. The disease that sunk John Kerry was the same that sunk Michael Dukakis (the mini-me version of Kerry) in 88. Back then crime was the showing symptom. A particular turning point in the race was Dukakis’s strangely out of touch response to Bernard Shaw's posing a question that seems easy to answer in the “red” states, would you want a murderer executed if he killed your wife? Dukakis’s dispassionate answer exposed a fundamental difference in the conception of the state as a killer from a majority of the nation as a whole. I may suspect (although I don’t know) that there is a more significant backdrop to Judge Gertner’s action here then merely making a technical improvement in the death penalty’s function.

The other interesting thing to note is that this is taking place in the federal death penalty system, which is already the "Cadillac" capital system and also a minor player in the American system of capital punishment. It is hard to imagine that states, lacking the resources of the federal government or the ability to operate at deficit levels, would have the resources necessary to follow the lead of Judge Gertner even if they were so inclined. The bifurcated trial is already one of the single biggest cost factors in capital trials, a second jury would rachet that cost up tremendously. Until the reality of sparse financing is dealt with, reform of the death penalty at the far more significant state level is unlikely.

Posted by: Michael Korns | Nov 8, 2004 1:37:17 AM

Great points, Michael. Someone has taugh you politics and capital sentencing well. Your insights also raise interesting "federalism" questions about the appropriateness of bringin federal capital prosecutions in states that have decided not to have the death penalty. In addition, recall that this decision comes from a state that recently produced a report outlining the many steps that would need to be taken to created a "foolproof" death penalty system:

Posted by: Doug B. | Nov 8, 2004 7:02:21 AM

Quite right, although given the rather dismal fate of Mitt Romney's campaign to put more republicans in the Massachusetts legislature (the GOP ended up losing seats in both houses) it seems likely that the "foolproof" system will have to wait.

Yes, I was lucky to have a crim law prof that knew a few things about sentencing. It appears that those are a bit more rare than they should be.

Posted by: Michael Korns | Nov 8, 2004 3:46:20 PM

I nominate Chief Judge Donald Molloy of the District of Montana. Judge Molloy, in an effort to be fair in every case, has repeatedly and consistently granted downward departures where he feels they are supported by law and fact. The Government has repeatedly appealed Judge Molloy's departures. He has been affirmed and he has been reversed but he still has the courage to continue to try to do what he thinks is right. He also stood up to the U.S. Attorney and the DOJ with respect to so-called sentencing reporting requirements.

Posted by: Dan Donovan | Nov 8, 2004 7:09:40 PM

My son-n-law is convicted to life in prison for selling on hearsay not proof of sell cocaine. First time offender and non-voilent.

Posted by: Dee Mackey | Dec 10, 2004 8:29:57 PM

I would ad the following judges:
Judge irving kaufman, for standing up to media presure and "public" outcry in sentencing julius and ethel rosenburg to death. The only propor sentence was death for such blatant "treason".
Judge albert sabo, for sentencing 33 murderers to death(a post furman record). Despite bullying atempts by the media, and staying commited to justice above self image. For not backing down to the mumia abu-jamal charade of sanity.
us district judge Julia S. Gibbons, for departing upward in US v calloway. In departing she gave a life sentence for aircraft piracy and the brutal attack of 3 fed-ex workers.
Judge Thomas Hastings for afirming child killer richard allen davis jury reccomended death sentence and saying "Mr. Davis, this is always a traumatic and emotional decision for a judge. You've made it very easy today by your conduct."
Judge Louis B Garippo, for sending john wayne gacy to death row.
Judge Uriel Blount for sending Aileen Wuornos to the electric chair.
Judge Edward Cowart, for disposing of ted bundy.
Judge Michael Tynan for sending richard ramirez to death row.
Judge John J. Ryan for giving serial killer charles ng a taste of his own medicine.
Judge susan shaffer for overriding a jury reccomendation of life and sentencing anothony washington to die for brutally raping and beating a 93 year old lady to death. no ammount of mitigation could excuse such a heinous act. she also sentenced amos king to death for a similar crime but in that case they jury reccomended death.
Judge Dwight L Geiger, for overriding a jurys reccomendation of life for mathew marshal who brutally bludgoned another inmate to death.
Judge Thomas Carney for imposing a jury override death sentence upon heny garcia for brutally stabing, pummeling, and beating to death an 86 year old women right before he raped and murdered her 90 year old sister in a similar mannor.
Judge David L. Tobin, for sentencing ana cardona to death for beating her three year old son to death with a baseball bat and dumping his battered body in a vacant lot. The chiled suffered unspeakable torture at the hand of his mother in the months leading to his murder. The victim Lazaro had endured numerous tortures prior to his death, suffering brain damage due to untreated meningitis, anemia, malnutrition and spinal cord damage.
Unsure who, but i would nominate the judge who accepted a ple bargin for Robert Berdella for extreme stupidity and overwhelming incompetense. Accepting a ple bargin for 6 or so murders, at a life sentence, in echange that the defendant reveal every intimate detail of how he tortured his victims. For selling justice at the price of their curiosity, i hold the prosecutors and judge almost equally as imcompetent as thurgood marshal.
I would nominate thurgood marshal for the loveable morron on the 1900's. his always famous "Adhering to my belief that the death penalty is under all circumstances cruel and usual punishmen barred by the eight and fourteenth amendment, I would reverse the decision of{___insert name of court_________}, in so far as it leaves the death sentences undisturbed However even if i were not to hold this belief i would still reverse based on{____insert overtly rediculous reason____}." reasons may include: because he looks like a nice guy, because the sky is blue, because water is wet, because he stubed his toe when he was 8, because he wet his bed once when he was 13, his gun didnt come with a safty book instructing him that 12 bullets to the head my be fatal, the united states treaty with the sandwich islands bars the death penalty for anyone who has ever eaten a sandwich, he consumed 1 beer 17 hours before the crime, he only killed 4 people, he needed the victims money to buy cocaine and felt a dead victim would be easier to rob, he believes in santa clause, he had good employmet history as a pimp and drug dealer, he was (not) retarded,he got a paper cut in 3rd grade, if the gun owner he stole his weapon form had it in fort knox he wouldent have been able to get to it. anyway i think you get the idea. could add 1000 more judges but alas no time.

Posted by: james wigley | Feb 4, 2005 8:48:09 AM

Mr. Wigley, Is there some reason that you cannot spell ?

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