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March 19, 2011

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.

March 19, 2011 at 03:02 PM | Permalink


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This is a wonderful piece of writing. We hear far too little from trial judges about their experience of the sentencing process. Judge Hornby has set a great example.

Posted by: Tom | Mar 19, 2011 5:25:15 PM

Anything that comes from this incredible jurist is worth the read !!!! Even Bill Otis might appreciate it -- that is if he reads anything that isn't written by a right wing nut job.

Posted by: Steve Prof | Mar 19, 2011 5:45:24 PM

Come on Steve Prof. Don't poke the bear.

Posted by: centrist | Mar 19, 2011 7:22:52 PM

BTW, a very good read. 15 pages, takes about 25 minutes or so. Very much worth it.

Posted by: centrist | Mar 19, 2011 7:54:38 PM

I found nothing in the article that went beyond personal feelings. The judge wants to maintain his authority without any external validation. The guidelines were followed by a 40% reduction crime across the board, including the murder rate.

Posted by: Supremacy Claus | Mar 20, 2011 7:41:57 AM

I suppose I would be interested in the personal feelings regarding the role of district judges' speech during sentencing. As one engaged in the job day in and day out, perhaps they have some interesting insights that could help educate the rest of us.

Posted by: cmt | Mar 21, 2011 9:42:03 AM

I wish a particular federal district-court judge in Colorado would read the part about speaking in language people can understand. One of his favorite words is "condign." When he tells someone at sentencing that he is going to impose a condign sentence, that person has absolutely no idea what he's talking about.

Posted by: Colorado lawyer | Mar 21, 2011 2:18:53 PM

Colorado: I agree.

Because lawyer languages rules us all, requires the hiring of a lawyer, thus in bad faith, an Amendment is needed.

"Any legal utterance rated higher than the sixth grade reading level, from any source, including legislatures, individuals, regulators, judges, is void, not voidable, void."

Lawyer language fails to give notice. It violates the procedural due process rights of all parties. We do not care if pilots have inscrutable chatter. We just care about getting to our destination. Lawyer language is not like doctor, plumber or pilot languages because it orders us to obey, to behave, and to not behave.

Posted by: Supremacy Claus | Mar 21, 2011 11:05:11 PM

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

Posted by: Big pony | Apr 11, 2011 7:58:18 AM

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