Judge Hornby discusses "Speaking in Sentences"

A helpful reader alerted me to this interesting piece in the Winter 2011 issue of The Green Bag by D. Brock Hornby, a District Judge on the United States District Court for the District of Maine. The work is titled "Speaking in Sentences," and it begins and ends this way:

Federal judges sentencing offenders face-to-face. The proceedings showcase official power vividly and, sometimes, individual recalcitrance, repentance, outrage, compassion, sorrow, occasionally forgiveness — profound human dimensions that cannot be captured in mere transcripts or statistics.  But while materials on federal Guidelines, statutory mandatory minimums, and sentencing data are voluminous, relatively little attention is paid to federal sentencing proceedings as they occur today.  In a world of vanishing trials, these public communal rituals are vital opportunities for federal courts to interact openly and regularly with citizens.  How they are conducted can rival the importance of the actual punishment; managers or forepersons who penalize workers, parents or teachers who discipline children, certainly judges, know that.  My topic, therefore — Speaking in Sentences — is what should and should not be said when federal judges punish individual....

Sentencing proceedings should address the community openly and understandably with a series of why’s about the crime and the punishment, the defendant, and the victim — with spoken answers of repentance or recalcitrance, punishment, deterrence, restitution, occasionally mercy.  Mandatory Guidelines frustrated this process, with their overemphasis on numbers and categories.  We were seduced by hand-wringing about data that showed sentences were not uniform.  Of course they weren’t.  Sentences can never be uniform.  Yes, there should be strong norms to guide judges, but not straitjackets. Sentencing is not only about outcomes, data, and uniformity.  Uncertainty, subtlety, debate, and public discussion — not easy application of across-the-board formulae — are necessary in determining particular federal sentences.  Fair punishment calls for individualized wisdom exercised by the community’s arbiters in a public ceremonial process conducted in language that everyone understands.