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March 26, 2009

Brits having familiar debate over sentencing guidelines and judicial discretion

As detailed in this BBC News article, which carries the headline "Judges group attack sentence plan,"  there is a new debate over an old sentencing issue across the pond.  Here is how the article starts:

The body which represents 652 judges in England and Wales has attacked government proposals to introduce compulsory guidelines on sentences.  The Council of Circuit Judges said the government's plans were "unnecessary, costly and unwelcome".

The Council said the imposition of mandatory guidelines "may result in injustice to both offenders and victims in individual cases".  But Justice Secretary Jack Straw said judges' discretion would remain.

The plans are contained in the Coroners and Justice Bill, which had its third reading in the Commons on Tuesday and will now go to the Lords.  BBC Home Affairs correspondent Danny Shaw said it was "highly unusual" for the judiciary to make such a statement.

March 26, 2009 at 08:33 AM | Permalink


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The protests are ridiculous, and shameless.

Security is the number one job of government. If crime rates increase, the failure of government requires change. The judges are not paid to settle disputes. They are paid to protect us. They should be fired after such a failure.

Statutes should exclude lawyers from all benches. Their loyalty, even when prosecutors, is to the criminal, the source of their jobs. They make no money from victims, and do not care about security.

Judging is a difficult profession, completely different from lawyering. The lawyers becoming judges explains their failures.

Separate judge schools should admit older people who have taken responsibility for making decisions. They should learn judging for 2 years. The third year, they should judge under supervision of experienced judges, in rotating courts. Then, they should pass a judge test, and get a judge license.

All immunities should end. If they deviate from judge professional standards of due care, the victims of their carelessness should be able to sue them for judge malpractice.

Reversal of decisions by higher courts is not an indicator of judge malpractice. Certificates of merit from judging experts should protect them from frivolous or retaliatory litigation. Lawyers filing such meritless claims have to pay all costs from personal assets.

No judge today qualifies as adequate. All would be phased out, as quickly as practical, especially those on the Supreme Court.

Posted by: Supremacy Claus | Mar 26, 2009 9:25:12 AM

Security is not the "number one" job of the government. Keeping down muffler prices is. Indeed, "I am not going to pay a lot for this muffler" is a key value in American society.

PS: You should be ashamed of yourself. You filed a pro se appeal and lost.

Posted by: S.cotus | Mar 26, 2009 9:56:56 AM

It’s an interesting article and an interesting idea, but there’s not really enough detail on what data was used to comment on how useful it is.

I think that the issue of the efficacy or otherwise of capital punishment will probably never be amenable to statistical analysis. Although Supremacy_Claus’ comment is (presumably) tongue in cheek, it highlights some of the problems that arise.

Other obvious problems are trying to disentangle all the other socio-economic factors from the sentencing policy in determining what impacts on a crime rate (let alone the problem of defining a ‘crime rate’). Also, given the low numbers of executions (and relatively low rate of murder), it will be difficult to track what is a genuine cause and effect and what is just a statistical fluctuation. And then the question of whether if someone is executed for two murders, how do you factor that in? And conversely, one murder may have two or more perpetrators.

These are just examples of potential difficulties…

Posted by: Legal Geek | Mar 26, 2009 12:55:45 PM

Sorry... commenting on the wrong article.

Posted by: Legal Geek | Mar 26, 2009 12:56:47 PM

Scotus: It is easier to recognize security as the number one job of government in the absence of government. In Fallujah, before it was pacified, you would have had to spend all day providing your own security. Try doing something else productive in a place devoid of government.

I am a fictional character. I have no standing to file any claim, nor have I ever tried to.

Posted by: Supremacy Claus | Mar 26, 2009 1:53:19 PM

Legal Geek: Outside of Brown v Bd of Ed and Mass v EPA, there has been no real requirement that the legislature enact scientifically supported laws. Other cases considering science in their decision much appreciated. Yet, the passage of law and the abstention from the passage of law is human experimentation.

The Brits have always been more moderate and shown more common sense than Americans. I would appreciate a brief statement as to the role of science, proofs of effect, studies of unintended consequences for any planned statutory remedy in Great Britain.

The data in the US have a coincidence between the trickling of sentencing guidelines to street level and a huge 40% drop in the crime rate, including violent crimes and murder. We have a second experiment now starting, where the guidelines were struck down and made advisory, rather than mandatory. I await the Scalia Bounce in the crime victimization statistics once 2007 and later stats begin to trickle in.

Law making is ghoulish human experimentation without data by amateurs playing with the lives of the public like a fat kid holding a magnifying glass over an ant colony.

Posted by: Supremacy Claus | Mar 26, 2009 5:48:50 PM

Is there a British equivalent to the Equal Protection Clauses of the Fifth and Fourteenth Amendments? Subjecting defendants to the arbitrary feelings of biased judges violates those Clauses, by increasing the spread of sentences for the same crime and the same extenuating and aggravating circumstances. The series of decisions making guidelines advisory should be reversed by statute then by a Constitutional Amendment. What other Amendment would restore Equal Protection, and achieve a 40% drop in the crime rate?

Posted by: Supremacy Claus | Mar 26, 2009 6:52:51 PM

Not just Equal Protection for the defendant.

There is an established emotional effect in the US. If the victim is white, the outrage against the defendant is greater, and the punishment is greater.

The making of guidelines advisory thus violates the Equal Protection rights of black crime victims.

No American lawyer, not even a prosecutor, can utter the V word out loud. Victim. The lawyers choke. They gag. They need air. I wonder if that effect is seen in British lawyers as well. The reason is that the criminal generates lawyer jobs in rent seeking. The victim is worthless to the lawyer. So 23 million criminal victimizations a year is of no concern to the lawyer.

Posted by: Supremacy Claus | Mar 27, 2009 3:34:38 AM

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