The Volokh Conspiracy - Why People Are Skeptical of Judicial Discretion in Sentencing:

Here's the story:

Wednesday [Vermont trial court Judge Edward Cashman] sentenced child rapist Mark Hulett to 60 days in jail. Hulett admitted he raped a little girl countless times when she was between 7 and 10 years old.

Prosecutors said Hulett deserved at least 8 years in prison in part as punishment.

But Judge Cashman said the 60-day sentence guaranteed that Hulett would get into sex offender rehabilitation quickly or face a possible life sentence. He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can't get treatment until he's out of jail.

And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment. . . .

Republican lawmakers have scheduled a press conference for tomorrow to call for mandatory minimum sentences. That's a direct response to Judge Cashman's ruling. . . .

Some Republicans have started calls for Cashman's removal from the bench.

But they may have to until Judge Cashman's six-year retention hearings in March 2007. Legal experts say it is highly unlikely his sentencing decision would qualify as an impeachable offense. . . .

I understand the appeal of giving judges a great deal of sentencing flexibility: Different offenders are different, and sentencing guidelines schemes tend to omit some factors that might in some cases yield a juster result.

But flexibility means you sometimes get manifestly unjust results such as this -- and sometimes unjust results in the other direction, too. What's more, you get highly unequal treatment. First, this child molester lucked out because he got into Judge Cashman's court, while other criminals might be unlucky because they get into an unusually harsh judge's court. Second, discretionary black-box here's-how-I-feel-about-it judgments are especially likely to be influenced, in many instances, by impermissible factors, such as the offender's race, the offender's sex, the degree to which the judge feels social affinity for the offender, or the degree to which the judge feels social affinity for the victim. Our feelings of pity, mercy, and sympathy, as well as our feelings of outrage, are often colored (perhaps even subconsciously rather than deliberately) by such factors, especially when they bear on the connection we feel to the parties.

On balance, it seems to me that judicial sentencing discretion needs to be cabined, and sentences -- like the definitions of the offenses -- made more matters of the rule of law, rather than of rule by whatever penological theory each particular judge "believes in," or by whatever attitudes the judge has about a particular crime or a particular offender. And while of course the sentencing ranges can be misset (the federal guidelines were faulted for being too harsh in many instances, though I have no firm opinion on the subject), at least the guidelines provide an opportunity for deliberation, both democratic and bureaucratic, about what the right settings should be. Not so with "here's what I as the judge think you should be sentenced to."

(Note that across-the-board mandatory minimums lack many of the advantages of guidelines, since they usually turn on no or very few factors. Guidelines include their own minimums, but those minimums are more calibrated to the particulars of each offense, such as the offender's criminal history, the severity of this particular instance of the offense, and the like. There's also a separate debate over what sorts of escape hatches guidelines should have for the truly unusual cases; but it's much better to limit judges' discretion, subject to a rarely used escape hatch that will often be reviewable on appeal, than to leave the matter entirely to the judge.)

	[Eugene Volokh, January 6, 2006 at 11:48am] Trackbacks Why People Are Skeptical of Judicial Discretion in Sentencing: Here's the story: Wednesday [Vermont trial court Judge Edward Cashman] sentenced child rapist Mark Hulett to 60 days in jail. Hulett admitted he raped a little girl countless times when she was between 7 and 10 years old. Prosecutors said Hulett deserved at least 8 years in prison in part as punishment. But Judge Cashman said the 60-day sentence guaranteed that Hulett would get into sex offender rehabilitation quickly or face a possible life sentence. He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can't get treatment until he's out of jail. And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment. . . . Republican lawmakers have scheduled a press conference for tomorrow to call for mandatory minimum sentences. That's a direct response to Judge Cashman's ruling. . . . Some Republicans have started calls for Cashman's removal from the bench. But they may have to until Judge Cashman's six-year retention hearings in March 2007. Legal experts say it is highly unlikely his sentencing decision would qualify as an impeachable offense. . . . I understand the appeal of giving judges a great deal of sentencing flexibility: Different offenders are different, and sentencing guidelines schemes tend to omit some factors that might in some cases yield a juster result. But flexibility means you sometimes get manifestly unjust results such as this -- and sometimes unjust results in the other direction, too. What's more, you get highly unequal treatment. First, this child molester lucked out because he got into Judge Cashman's court, while other criminals might be unlucky because they get into an unusually harsh judge's court. Second, discretionary black-box here's-how-I-feel-about-it judgments are especially likely to be influenced, in many instances, by impermissible factors, such as the offender's race, the offender's sex, the degree to which the judge feels social affinity for the offender, or the degree to which the judge feels social affinity for the victim. Our feelings of pity, mercy, and sympathy, as well as our feelings of outrage, are often colored (perhaps even subconsciously rather than deliberately) by such factors, especially when they bear on the connection we feel to the parties. On balance, it seems to me that judicial sentencing discretion needs to be cabined, and sentences -- like the definitions of the offenses -- made more matters of the rule of law, rather than of rule by whatever penological theory each particular judge "believes in," or by whatever attitudes the judge has about a particular crime or a particular offender. And while of course the sentencing ranges can be misset (the federal guidelines were faulted for being too harsh in many instances, though I have no firm opinion on the subject), at least the guidelines provide an opportunity for deliberation, both democratic and bureaucratic, about what the right settings should be. Not so with "here's what I as the judge think you should be sentenced to." (Note that across-the-board mandatory minimums lack many of the advantages of guidelines, since they usually turn on no or very few factors. Guidelines include their own minimums, but those minimums are more calibrated to the particulars of each offense, such as the offender's criminal history, the severity of this particular instance of the offense, and the like. There's also a separate debate over what sorts of escape hatches guidelines should have for the truly unusual cases; but it's much better to limit judges' discretion, subject to a rarely used escape hatch that will often be reviewable on appeal, than to leave the matter entirely to the judge.)