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December 25, 2008

Should (and must?) a federal judge show respect for all of jury's work at sentencing?

Though I could blog/comment forever about the Sixth Circuit's work in the White acquitted conduct en banc case (basics here), my biggest concern with the White opinions (and some commentors) is the failure to directly take on the basic question in the headline of this post.  Rather than try to unpack the acquitted conduct issue using the Supreme Court's constitutional precedents (which are all over the map), I wish courts and commentators would simply explore whether and how a federal judge should (and must) show respect to all of jury's work at sentencing.

When the issue is framed this way, I feel confident asserting that, based on both common law traditions and the statutory provisions of the Sentencing Reform Act, a federal judge at the very least should show respect to all of jury's work at sentencing.  Moreover, because juries are constitutionally safeguarded criminal justice decision-makers, a good argument can be made that sentencing judges must show respect to all of jury's work at sentencing. 

Critically, with the term "show respect," I do notmean to assert that a federal sentencing judge must unthinkingly accept and always give dramatic effect to every implicit aspect of a jury's verdict.  But I do mean to assert that a federal sentencing judge should generally assume a jury made a conscientious effort to make a factual and moral judgment concerning the defendant's behavior and thus should generally try to give meaningful effect to all a jury's work-product.

The fundamental reason I find current doctrines as reflected in White so troublesome is because they now essentially require federal judges to disrespect any jury verdict of not guilty when determining a defendant's guideline sentencing range.  Though the Booker remedy now allows a federal sentencing judge to vary from a guideline range calculated with acquitted conduct enhancement, the Sixth Circuit's White ruling implies (and the Fourth Circuit has held in its unpublished Ibanga opinion) that a federal sentencing judge must ignore a jury's acquittal and assess a defendant's conduct for guideline purposes the same whether or not a defendant was convicted or acquitted based on that conduct.

Some related posts on acquitted conduct sentencing enhancements:

December 25, 2008 at 03:46 PM | Permalink


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A Google of "jury nullification" might provide some of the best links to historical analysis of the power of the jury. Many are passionate about the power of the jury. For example, the jurygeek blog, where there is this:


First, we must look at the understanding of the jury at the time the Constitution was written. As I've discussed at length elsewhere, the Founding generation considered the role of the criminal trial jury to include discussing both law and fact. This wasn't controversial at the time of the founding. Jefferson, Franklin, Hamilton and many others supported this view.

Secondly, legal practice in the early years of this country was to instruct jurors on their role as finders of both law and fact - even in civil cases. The plainest example is in Georgia v. Brailsford, 3 U.S. 1 (1794), in which John Jay, for a unanimous Supreme Court, wrote:

"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision. "

Posted by: George | Dec 25, 2008 5:35:45 PM

The problem lay in the nuances of various burdens of proof. A jury acquittal does not say the defendant is innocent, it merely says the state did not prove guilt beyond a reasonable doubt. Guilt may have been proved by a preponderance of the evidence, though. And for sentencing, that's all that's required.

But those nuances aside, relying on them is extremely disingenuous when it comes to justifying the use of acquitted conduct to enhance a sentence.

The solution, in my opinion, is something I've long advocated - a three verdict system. Juries should be able to find a defendant guilty, not guilty, and innocent. "Not guilty" and "Innocent" are not the same thing. Not guilty merely means not proved. Some countries (Scotland, I believe) use this three-verdict system (four if you count not guilty by reason of insanity).

For purposes of federal sentencing, if the jury found the defendant "innocent" then that conduct could not be used to enhance punishment at sentencing, whereas if the jury only found the defendant not guilty (not proved), then the court could use that conduct to enhance punishment at sentencing if it finds the defendant 'guilty' of it by a preponderance of the evidence.

But if we're not going to do that, then I think all sentencing factors should have to be found by the jury beyond a reasonable doubt. Making sentencing guideliens advisory (Booker) really doesn't fix anything - it just says courts may - instead of shall - violate a defendant's Sixth Amendment rights. I think the Constitution requires more from us.

At the end of the day, we should remember that courts are supposed to sentence PEOPLE, not crimes.

Posted by: BruceM | Dec 25, 2008 8:38:51 PM


An Innocent verdict had better carry heavy sanction against the government, even in the case of mixed verdicts.

Lacking that, I would have much preferred SCOTUS to have ruled the guidelines mandatory going forward by requiring proof to the jury. And as much as I dislike Teague that arena might actually be a reasonable application, unlike confortation as an example.

Posted by: Soronel Haetir | Dec 26, 2008 12:03:37 PM

Although I have vehemently disagreed with many of Bruce M's previous posts--the three verdict system is intriguing.

Cleanest route of jurisprudence in my view is make federal sentencing a pure offense of conviction system enabling the guidelines to be mandatory again.

Posted by: mjs | Dec 26, 2008 3:36:14 PM

A few favors/questions:
1) When making the claim that the SCOTUS precedents are "all over the place", could you perhaps expand on this idea in a future post. I don't really know which precedents you have in mind. Between McMillian and Williams (neither of which have been overruled), the constitutionality of using acquitted conduct to shape a sentence within the statutory range seems to be comply with the Sixth Amendment.

2) You have assumed, without explanation, that judges are bound by a juries interpretation of the facts for the purposes of sentencing. Why is that so? Normatively, you might prefer that - but why is that constitutionally mandated?

3) You don't seem to acknowledge that federal judges, after properly calculating the guidelines' sentence (which incorporates considerations of acquitted conduct) are free to then ignore that guidelines calculation and issue whatever sentence they feel is reasonable (so long as it's within the prescribed statutory range). You seem to fault those judges who believe that the use of acquitted conduct in determining a sentence is sometimes appropriate. It may be appropriate in some cases but not in others. But why does the constitution prefer one rule or the other?

Posted by: Alex | Dec 26, 2008 5:47:03 PM

Soronel H: under current law, there is no such thing as an "innocent" verdict. Not guilty does not equal "innocent" (even though we talk about the "guilt/innocence" phase of a trial). If there were an additional "innocent" verdict as I describe, then there should be some sanctions against the government - reparations of some sort, and at the very least, the government should have to pay the defendant's attorney's fees.

I would have much preferred SCOTUS to have ruled the guidelines mandatory going forward by requiring proof to the jury.

Me too, but a jury that finds someone guilty of the substantive offense beyond a reasonable doubt will most likely find the person "guilty" beyond a reasonable doubt of any and all sentencing factors/enhancements the government bothers to allege. So I'm not sure it would result in a fairer system. Additionally, the very notion of binding, mandatory sentencing guidelines is anathema to a fair sentencing system where people, and not crimes, are punished.

Posted by: BruceM | Dec 26, 2008 8:38:59 PM


Remember, I also advocate making all felonies death eligible, with many categories being death-likely. A few years or more less doesn't bother me all that much so long as the factors are properly proven.

As for paying for the defense I think the government should be on that hook already, regardless of the defendant's means. If any particular defendant can convince any particular attorney to represent them the government should be forced to pay that attoryney's rate. I do not see threat of bankrupcy as ay sort of reasonable bargaining chip in criminal matters. Let the civil courts bankrupt people for their conduct.

Posted by: Soronel Haetir | Dec 26, 2008 9:54:04 PM

You think the government should be able to execute people for possessing certain leaves, for not paying their taxes, for driving while intoxicated (but not harming anyone), for selling butter without a USDA stamp in the appropriate size on the packaging, and other such nonviolent trivial felonies? Are you serious?

Surely you realize the distinction between felonies and misdemeanors is archaic and completely random and hugely disparate from one jurisdiction to another.

I, on the other hand, advocate limiting all punishments to no more than 20 years in prison except for a few non-penal code crimes which I believe warrant death - wartime treason, genocide, serial killing (10+ victims over a 10 year period) mass terrorism resulting in multiple human deaths. But I also believe the only fair trial when the death penalty is concerned is a perfect trial. No "harmless error" in capital cases. One erroneous hearsay ruling by the judge and the defendant should get a new trial. Yes, I realize this means justice will be slow, but after about 10 to 20 retrials, they'll get it right based on previous rulings, and a conviction can be affirmed without having to rely on harmless error. No error is harmless when death is the punishment. And death should only be the punishment for about 4-5 crimes. Only 1-2 people per year should be executed in America.

Posted by: BruceM | Dec 27, 2008 1:46:17 AM

A few quick responses to Alex's three points:

1) Blakely and Booker and Cunningham and even Rita would all seem to raise new questions about the use of acquitted conduct to justify large guideline-urged federal sentence increases (despite the continued validity of McMillan and Williams and Watts). Those are the more recent rulings that I think create new constitutional uncertainty.

2) "You have assumed, without explanation, that judges are bound by a juries interpretation of the facts for the purposes of sentencing. Why is that so?" Because others (including courts) make the same assumption when the jury finds facts AGAINST the defendant. Do you think a judge should be fully authorized to disregard completely a jury's finding of guilt at sentencing? Suppose a defendant is convicted by a jury on drug and gun charges, but then argues at sentencing that he was not really guilty on the gun charges. Do you think that a sentencing judge --- without entering an JNOV acquittal or otherwise making critical findings that the jury malfunctioned --- should be allowed at sentencing to simply disrespect to the jury's conviction on the gun charges and give a sentence of 0 months on those convictions? Put more directly, the law already demands that a sentencing judge to show respect to a jury conviction at sentencing. As a matter of logic, consistency and fairness, I think the law also ought to demand that a sentencing judge show respect to a jury acquittal at sentencing.

3) I do not mean to fault those SENTENCING judges who believe that the use of acquitted conduct in determining a sentence is sometimes appropriate. Rather, I fault the sentencing guidelines (and thus the Sentencing Commission) for failing to recognize and incorporate any distinction between acquitted conduct and other conduct at sentencing. And I fault circuit judges for not recognizing that Blakely and Booker and Cunningham and Rita raise new questions --- both constitutional and statutory --- that were not addressed or resolved by Watts.

As for your question "why does the constitution prefer one rule or the other?", I say that I believe we have to give some meaning/respect to the Framers decision to TWICE put the jury trial right in the Constitution. Or, to put a question to you, do you really think the Framers would endorse and champion a rule that says a jury acquittal is of no consequence at sentencing and that acquitted conduct is to be treated at sentencing just like all other condict? From an originalist perspective, I do not think the Framers would have twice stressed the jury trial right and yet embraced such a broad endorsement of government power to disregard a jury's work at sentencing.

Hope this helps you better understand my perspective on these interesting and important issues.

Posted by: Douglas A. Berman | Dec 27, 2008 9:49:11 AM


As a matter of logic, consistency and fairness, I think the law also ought to demand that a sentencing judge show respect to a jury acquittal at sentencing.

I agree with your sentiment, but as I was saying before, an acquittal is not a finding of anything, other than the state's failure to meet its requisite burden of proof. It does not speak to anything the defendant did or did not do. It only speaks as to what the state did not do (prove the elements beyond a reasonable doubt).

So there is no parsimony between a guilty verdict and a non-guilty verdict in terms of jury findings.

There should be, though. Fundamental fairness dictates that the jury should have the option at deliberations of giving an official finding that the defendant did not commit the crime (or a sentencing enhancement), rather than just "he did it" or "the state didn't prove he did it." There should be three verdicts to pick. An "innocent" verdict, as opposed to a mere "not proven/not guilty" verdict, would bind the judge.

For example, a defendant is found guilty of the drug charge but found innocent of the gun charge. That means the facts of the gun charge, whether proved by a preponderance of the evidence or beyond a reasonable doubt, cannot be used against the defendant at sentencing.

Yes there are questions as to what burden of proof, if any, should be required to receive an "innocent" verdict. Could a jury find a defendant innocent, as opposed to merely not guilty, if the defendant doesn't take the stand and puts on absolutely no evidence? I don't know... I think logic dictates that a defendant should have to make some showing in order to be entitled to a verdict of innocent - a verdict of something more than "the state didn't prove its case." At the same time, effective cross examination of state witnesses could be enough to show they are lying and the defendant is not just "not guilty" but actually innocent. I think innocence has to be shown by a preponderance of the evidence, and no independent case-in-chief need be put on by the defendant in order to be legally entitled to an "innocent" verdict. All three options (guilty, not guilty, and innocent) should be on every verdict form. An innocent verdict would act as a negative finding with respect to all relevant sentencing factors and enhancements. This is vitally important for fundamental fairness, because the implicit lack of finding in a not guilty verdict allows the government to argue that a court can still find a sentencing factor by a preponderance of the evidence despite a not guilty verdict, which only means the gov't did not prove that factor beyond a reasonable doubt. And current SCOTUS caselaw allows this - it's the acquitted conduct issue we all find so unfair (I know you know this).

Of course, prosecutors would fight tooth and nail to prevent an innocent verdict from being added to jury charges on the sole argument that faced with the choices of GUILTY, NOT GUILTY, (which I would rename to "NOT PROVED" to avoid confusion) and INNOCENT, juries would split the baby and settle on the middle ground of not guilty. Maybe some would, though I doubt it would occur very often. Even so, a few more acquittals is never a bad thing. Due to 200+ years of "tough on crime" jurisprudence, a brain-damaged spider monkey could try a criminal case before a jury and get a guilty verdict, with any and all mistakes deemed "harmless" on appeal.

should [a judge] be allowed at sentencing to simply disrespect to the jury's conviction on the gun charges and give a sentence of 0 months on those convictions?

I am against mandatory minimums in all shapes and forms. As such, sentencing ranges should be "0 to X" years (or months, weeks, whatever), with X being the statutory maximum. As such, a sentence of 0 months may be lenient, but it does not ignore or otherwise necessarily "dispresect" a jury's conviction. A sentence of probation accomplishes the exact same thing. I realize "victim rights" assholes would bitch and whine about most non-incarcerative sentences, but that doesn't mean it disrespects the jury's conviction. It just means a lot of citizens are vindictive, un-Christian assholes (and you'll find 99% of them wearing crosses around their necks and organizing their anti-defendant protests at church). But that's a different issue....

Posted by: BruceM | Dec 27, 2008 10:29:59 AM


As a matter of personal preferance possession of leaves would not be a crime, however society has sen fit to decide that matter differently than I would. As such I would be perfectly happy executing people for that choice. I am aware of just how trivial many felonies are these days, which is why the system I advocate includes complete erasure of he offense (except when determining punishment for future crimes) for those not executed. Even during a future trial the previous conduct simply wouldn't exist, only after guilt has been established would the prior conduct become applicable. I would also keep a pure executive pardon (no normal clemency allowed, it's either pardon or death for those slated for execution).

I understand that I am even less likely to get this system tahn we are to get a three verdict system or you are to get a 20 year general maximum sentence, that doesn't mean I can't dream. I might not be a Christian, but I would happily agree that I am vindictive.

Posted by: Soronel Haetir | Dec 27, 2008 11:14:47 AM

That's just nuts. Sorry. Your opinion would change instantly the second you are charged with a felony - and don't think it could never happen. Innocent people are charged and found guilty all the time.

To be clear, I have no moral objections to the death penalty; my objections are purely pragmatic having worked in the criminal justice system as a defense lawyer for years. Due to over a century of high profile acquittals, the rules of procedure and evidence have been tweaked time and time again, little by little, to help the prosecution and make sure no other defendants "get off" the same way again. We've reached the point where the rules of evidence and procedure are so stacked in favor of the prosecution that the conviction rate is well over 95%. And they have also tweaked the rules of appellate review by limiting habeas corpus and greatly expanding the harmless error doctrine and principles of forfeited claims that appellate courts are bound by law to affirm all convictions. Death penalty cases are even more unfair, with limited appeals and "death qualified" juries - which ensures the prosecution gets a jury full of only pro-death penalty, pro-prosecution, vindictive law and order types who are drooling to execute someone.

Make the rules of procedure, evidence, and judicial review fair for the defense and not ridiculously skewed in favor of the prosecution, and I would have no problem with the death penalty. But even so, it should only be used in rare cases. To make all felonies capital felonies is maybe the most insane thing I've ever read here. And I've said a lot of wacky stuff myself (to make a point).

The justice system is not supposed to be about vindictiveness. Justice and revenge are not the same thing. Yeah, it sounds like a cliché from some lame superhero movie, but the basic idea is both correct and very important. If you don't believe possession of leaves should be a crime, then not only should you not vote to execute someone for doing it, you should vote for acquittal based on time-honored principles of jury nullification (were you to serve on a jury hearing a drug possession case).

As for what I think you are saying regarding 404(b) evidence - evidence of prior crimes/bad acts being used against the defendant at trial, I absolutely agree - the rules of evidence technically forbid introducing such evidence. But going back to what I was saying before about skewed rules, the courts have made so many exceptions to rule 404(b) that there is a way to get all prohibited 404(b) evidence admitted under an exception to 404(b). And if the prosecutor is too dumb to pick the correct exception at trial, the court of appeals will apply the correct exception and affirm the conviction. 404(b) is completely worthless - it's gotten so bad that in Texas, a defendant who accuses the complaining witness of fabricating the charges "opens the door" to all 404(b) evidence. If you have one rape conviction, and I falsely accuse you of raping me, and your attorney - merely during cross examination - asks about whether/why I'm fabricating the accusation, your first rape conviction automatically becomes admissible as a 404(b) "fabrication" exception! Can you believe that?

Posted by: BruceM | Dec 27, 2008 1:43:36 PM


I do have problems with both harmless error and argument forfeiture, especially when dealing with represented defendants. As for the 90%+ who plead out, I don't think there is any real method for assessing how closethe final plea relates to the underlying conduct. I understand that is the entire point of overcharging, that the guilty defendant ends up pleading to what actually happened, more or less. But I also understand that the same forces work very much against the actually innocent, rather than those who are merely innocent of the overcharged conduct.

Without any way to assess how closely the final convictions hew to the actual facts, I'm honestly not sure that a 95%+ overall conviction rate is actually something to be concerned about. I would honestly be much more concerned if the numbers were reversed, that would tell me prosecutors were wasting their time in some manner, be it pursuing some charge that the community absolutely believes should not be criminal, bringing an overwhelming number of extremely weak cases or something else entirely that I'm not thinking of.

Honestl, in a perfect system there would be a 100% conviction rate, with only the actually guilty being convicted. We're not there yet, so I'm not sure what meaning is to be ascribed to conviction rate stats.

Posted by: Soronel Haetir | Dec 27, 2008 4:34:14 PM

I'm honestly not sure that a 95%+ overall conviction rate is actually something to be concerned about. I would honestly be much more concerned if the numbers were reversed, that would tell me prosecutors were wasting their time in some manner, be it pursuing some charge that the community absolutely believes should not be criminal, bringing an overwhelming number of extremely weak cases or something else entirely that I'm not thinking of.

How do you know that they're NOT doing that? What is, but for all the rules and procedures that are so skewed in the prosecution's favor, the conviction rate was only 20%? How do you know that isn't the case at this very moment? Every year the laws (both statutes and caselaw) get skewed a bit more in favor of the prosecution and against the defendants (and i'm not just talking about longer punishments, though that's certainly happening too).

Right now, prosecutors are confident that they can win "an overwhelming number of extremely weak cases" merely by virtue of the rules being greatly skewed in their favor.

.... and you want to execute all felons???

I don't mean this as an insult, but you're not thinking your position through. There's potential, you see some of the problems, but there are serious holes in your logic.

Posted by: BruceM | Dec 27, 2008 6:03:46 PM

What is = What if

Posted by: BruceM | Dec 27, 2008 6:06:33 PM

You mischaracterize my position when you say I wish to execute all felons. I wish to make all felons death eligible, with all those who are not given a chance at a clean break (after a suitable non-incarceral rehabilitation) executed.

I notice you don't address my argument that conviction rates are actually meaningless because there is no objective way to measure them against what really happened. We ask the criminal justice system to perofrm that measure, but we need some other tool if we are to measure the criminal justice system itself.

Posted by: Soronel Haetir | Dec 27, 2008 6:53:28 PM

So you're saying you want all repeat offenders convicted of a second felony to be death-eligible?

If so, what if they commit rape as their first felony, and income tax evasion as their second felony?

I don't think conviction rates are meaningless. They are not relevant to crime rates or how fair the justice system is. But take conviction rates and compare it to the number of charged with crimes who face trial (or plead out) and that percentage means something. I say its high value is a comment not on the quality of the prosecutors or the blatant guilt of the defendants, but the nature of the system being highly skewed in favor of the prosecution.

But yes, using conviction rates as some do to extrapolate the quality of the judicial system in terms of keeping criminals off the streets is rather meaningless.

Posted by: BruceM | Dec 27, 2008 9:04:52 PM


I want every felon to be death eligible on their first offense. As I described in the post awhile back here on SLP the only way to avoid death would be for a citizen to take the felon into their home for rehabilitation. I figure lots of non-violent felons would make it through such a system, the first time anyway. I figure it would drop off fairly quick on any second offense, since the potential host would be informed about the previous conviction.

Posted by: Soronel Haetir | Dec 27, 2008 9:23:20 PM

Ok now I see. I know your type very well. You're one of those people who take the oh so bold, supremely brave, highly controversial position that "criminals are bad." It's all black and white, crime bad, criminals bad, kill them all.

The second you or someone close to you is arrested and charged with a crime (rightly or wrongly), your opinion will instantly change and you'll realize things are more complicated.

It's easy to take non-controversial positions like "crime is bad" ... it requires no thought, the vast majority of people will agree with you and even cheer you on, and you have nothing to lose.

Posted by: BruceM | Dec 27, 2008 9:45:14 PM

Hrmm, I'm not sure I'd agree even with that. I would say that crime is costly, all around. I would also say that the punishments inflicted by a society should reflect how permissive overall that society is. The more permissive a society is in its accepted conduct, the more severe the penalties for flouting that conduct should be.

I would also say that this US follows this statement to a fairly close degree, depending on how you view things like time in the stocks followed by the ability to start over somewhere fresh. That ability is actually something important I believe is missing from what we do now. It is also why I believe that death is the only appropriate punishment for those we are not going to allow such a fresh start to.

Posted by: Soronel Haetir | Dec 28, 2008 12:48:30 AM

Yes, we do have a hard time giving criminals who've served their time the ability to start anew. It should be illegal to ask whether or not someone is a felon when hiring (except for a very few specific exceptions where certain specific crimes are a bar to a certain specific job... but not in general).

The only people who be defintion don't get any semblance of a second chance/fresh start are people serving life in prison without parole. Are you saying all life w/out parole sentences should be death sentences?

*I* personally would prefer death to life in prison. But I'm in the minority on that. Most people are so afraid to die that they'd rather be kept in a 8 by 10 cage 23 hours a day, with one hour to shower and be assraped, every day for the rest of their lives than to be executed and die right now. To me, that's irrational. I think life in prison - with no hope of release and no reason to behave well since there's no parole board to impress - is cruel and inhuman, and far exceeds the proportionality for almost any crime I can think of.

But I'm not a crime victim so I'm able to look at this with an open, neutral mind. Unfortunately we let victims and other biased people with extreme agendas dictate public policy in this country. Part of it is just a byproduct of freedom of speech - those with bias/agendas tend to speak louder than everyone else. I don't think DWI victims should advise on the punishments for DWI anymore than alcoholic, repeat DWI offenders should. They both have agendas and they're both biased and incapable of making an informed, intelligent opinion on the matter. The DWI victims want the longest, harshest punishment possible, and the alcoholic drivers want the lowest, most lenient punishment possible.

But for some reason, we give the DWI victims a microphone. Is it because we just love a good sob story?

Posted by: BruceM | Dec 28, 2008 11:23:09 AM


No, I am saying that anyone we aren't willing to give that complete fresh start to, including no job restrictions(at least under law) should be executed. It becomes trickier when someone comes in and their resume is blank for some significant period, a potential employer is likely to ask what the person was doing. I'm not sure what a good solution is there. A "none of your business" isn't going to get the applicant very far, or even "I wasn't working for personal reasons".

I guess you could almost say that the system I envision places a minor and conditional pardon power in the hands of individuals, for single random cases, while vesting a major pardon power with a single person. Everyone who fails that gauntlet is executed not based on their crime, but for having been judged an unworthy person to remain part of society.

Please note that I don't see this as any sort of Utopia, far from it. My outlook on the world is much harsher than such would allow.

Posted by: Soronel Haetir | Dec 28, 2008 6:06:44 PM

Why would any politician (whether elected or appointed) pardon people? There's a reason presidents in recent years hardly ever grant any pardons/commutations - it spends a lot of political capital, as it is per se "soft on crime" and it will be used against them if they seek re-election/re-appointment.

Even if it's their sole job, like a parole board, what motivation do they have to actually grant purely discretionary pardon requests (parole is granted becuase it's not 100% discretionary in most cases, and when it is 100% discretionary it never gets granted - Charles Manson has been up for parole for decades now, along with whats-her-name, his "brainwashed" female accomplice.

There was once a point in time when pardons were not political suicide, to the point where Dr. Mudd, convicted of participating in the conspiracy to assassinate President Lincoln, was given a presidential pardon. Could you imagine Dr. Mudd getting a pardon today? A modern president who pardoned a convicted coconspirator of the assassination of a previous president would be thrown out of office, and their political party would not win so much as a school board election for decades.

Our so called "Christian Nation" is the most unforgiving, un-christ-like nation in the history of the world. It's why I hate Christians so much - beacuse they act so unlike Jesus Christ, they give him a bad name.

Posted by: BruceM | Dec 29, 2008 2:04:57 AM

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