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Monday, February 21, 2011

Sticks and Stones

I don’t know Judge J. Phil Gilbert of the Southern District of Illinois personally, but I’m pretty sure he dislikes sex offenders.  A lot.  So much so that his remarks at sentencing in at least two recent sex cases have earned rebukes from the Seventh Circuit.  In one, United States v. Snodgrass (No. 10-2343), Judge Gilbert imposed a thirty-year sentence — a full ten years above the advisory Guidelines range.  Here’s how he explained the sentence:

Mr. Snodgrass, there’s not a whole lot I’m going to say. I listened to the trial, have seen the evidence at the sentencing hearing. You are definitely a scourge on society. You are a sick-o. You’re a sexually dangerous person who, in the opinion of this Court, should never be allowed the freedom to abuse children again. You may be beyond redemption, but that’s not for me to decide. There’s good and evil in this world, and you fit the bill of being evil.

There’s not a [§] 3553(a) factor that doesn’t cry out for a sentence that will result in your incarceration the better part of the rest of your life.

Meanwhile, in United States v. Bradley (No. 10-1080), Judge Gilbert imposed a twenty-year sentence — more than fourteen years above the Guidelines range and more than twelve years above what prosecutors requested.  Here’s what the Seventh Circuit quoted from his explanation of the sentence:

The district court, unpersuaded by Bradley’s words, characterized him as “Dr. Jekyll and Mr. Hyde” and a child predator and told him:

“But in truth in fact, Mr. Bradley, you are a pathetic person. I can’t think of a more calculated and heinous crime upon children than this one. The only thing worse you could have done to this child was to have killed him. But wait a second. You did kill him. You killed his spirit, his self-esteem, his confidence in himself, his security, and his ability to cope with life. You have killed the person he was, for the victim here, T.S., will never be the same. And he will likely go through the rest of his life in living hell because of you.”

The court, having read a letter from Bradley’s 78-year-old mother in which she quotes The Merchant of Venice in asking the court to temper justice with mercy, responded by paraphrasing its favorite philosopher, the Peanuts character Snoopy, and telling Bradley: “You are the crabgrass on the lawn of life.”

In Snodgrass, the Seventh Circuit affirmed the sentence on the basis of a “well-reasoned” written opinion by Judge Gilbert that evidently filled in the reasoning that was lacking in his remarks in open court.  But the court nonetheless offered some pointed criticisms of Judge Gilbert’s oral explanation:

We caution, however, that namecalling is not a substitute for reasoned analysis. Regardless of the heinous nature of the crime, every defendant is entitled to a reasoned explanation of his sentence. This ensures meaningful appellate review and promotes the perception of fair sentencing. During Snodgrass’ sentencing hearing, the judge uttered an explanation that provided no guidance on appeal and served only to insult the defendant.  Such an explanation is inadequate under the law and incompatible with of our system of justice. While the judge’s written explanation of Snodgrass’ sentence preserved meaningful appellate review, we lament the need for it in this case.

In Bradley, the Seventh Circuit vacated the sentence because it was based on “rank speculation” that Bradley was a serial child molester, even though no evidence in the record supported such a finding.  (See my earlier post on Bradley here.)  Along the way, the court noted its concerns with Judge Gilbert’s “unnecessarily harsh and exaggerated language”:

Bradley rightly questions the propriety of the court’s disparaging comments, particularly the glib response to his mother’s plea for mercy. We recently observed that a “litany of inflammatory remarks” can undermine the entire analysis of a sentencing judge.

To my mind, Snodgrass and Bradley raise interesting questions about what a sentencing judge should do when he or she feels powerful, visceral negative emotions — disgust, revulsion — regarding a defendant, and what an appellate court should do when it sees evidence that a sentencing judge was experiencing such emotions.

From a legal doctrinal standpoint, these questions get addressed through sentence explanation requirements.  I discuss the doctrinal framework, which varies quite a bit from jurisdiction to jurisdiction, in this article.  Consistent with the traditional view that sentencing is a matter that lies within the discretion of the trial-court judge, explanation requirements are not usually very demanding.  But federal sentencing law, like the law of at least a few states, does plainly contemplate some sort of a process of deliberation and logical reasoning; there should be something at least loosely “law-like” going on — an express application of established general principles to facts that are found based on record evidence.

This ideal of sentencing as cool-headed, objective reasoning — which seems so clearly embodied by the federal sentencing guidelines system — is at least in tension with the picture of a judge who is revolted by the person of the defendant.  And when that revulsion finds voice in the formal explanation of the sentence, an appellate court may conclude that the explanation is legally inadequate.

It’s easiest, of course, when revulsion is all there is to the explanation.  So, if there had been no “well-reasoned” written opinion to follow the sentencing hearing in Snodgrass, the Seventh Circuit seems to be telling us that the sentence would have been vacated.

But what if, as in the actual Snodgrass facts, the sentencing judge not only gives voice to disgust, but also separately justifies the sentence in ways that satisfy our minimal rationality norms?  One may be inclined to see the explanation as a post hoc rationalization for a sentencing decision that was actually driven by personal animus.  In such cases, however, it is not clear to me that there is a doctrinal basis for vacating a sentence that — let us assume — lies within the wide range of substantive reasonableness.  It is clear to me, though, that appellate courts are not likely to have much interest in peaking beneath superficially adequate explanations to explore the actual motivations of sentencing judges, absent strong evidence of bribery, racial bias, or other clearly out-of-bounds considerations.  (See, for instance, my post on State v. Harris, a fascinating Wisconsin case in which the sentencing judge seemed to react quite negatively to the defendant on a personal level, but no one seemed able to frame the issue in anything but racial bias/Equal Protection terms, which did not quite fit.)

As Bradley indicates, however, the sentencing judge’s articulation of a formally logical explanation for the sentence may not be the end of the matter if the judge’s logic rests on premises that are merely “speculative.”  In such cases, Bradley suggests that a judge’s “unnecessarily harsh and exaggerated language” in imposing a sentence may lend support to a conclusion that the sentence was not adequately justified.  The Seventh Circuit left it unclear as to what work exactly the harsh language did in its legal analysis, but perhaps there is a sense in which such language raises doubts about the care with which the sentencing judge was evaluating the record and thereby attenuates the deference that would normally be shown to a trial-court judge in matters of fact-finding and discretion.

Apart from the doctrinal questions, there are also interesting questions of ethics and punishment theory lurking in the background.  Emotions play an important role in moral judgment, and it seems neither possible nor desirable to eliminate the sentencing judge’s emotional responses entirely from the sentencing process.  Indeed, the federal sentencing guidelines have come in for some harsh criticism for going too far towards a coldly mathematical sentencing process that is drained of moral weight.

I think, too, that if the irritable, oversized personalities who seem to dominate our TV judging corps reflect public ideals of judging, then the Judge Gilberts of the world may nicely fit majoritarian preferences -- especially when they are venting their spleen in cases involving sex offenders and others who are especially loathed and feared in our society.  If Judge Gilbert were required to run for reelection, it is hard to imagine that his comments to Snodgrass and Bradley would be used against him by a politically savvy opponent.

Yet, I remain uncomfortable with Judge Gilbert's remarks.  There is a difference between saying (on the one hand) that sentencing requires moral judgment, and good moral judgment requires emotional engagement, and (on the other) that namecalling and the lack of emotional restraint suggested by gratuitous insults are okay.

Without attempting a systematic exploration of the claim -- this post is no doubt already taxing readers' patience enough -- let me just point in the direction of three overlapping concerns that might help to account for my discomfort.  First, it is hard for me to distinguish namecalling at the sentencing hearing from shaming sanctions, and I am quite sympathetic to the arguments of Dan Markel, James Whitman, and others that shaming sanctions have no place in the punishment systems of modern, liberal states. 

Second, thinking again of the work of Whitman, as well as Michael Moore and others, many of the emotions associated with punishment are dark and dangerous, and there is always a risk of these emotions spinning out of control, blurring the line between punishment and mere vengeance.  As Whitman puts it, "[T]he paramount problems of punishment involve maintaining a dispassionate professional attitude."  Making Happy Punishers, 118 Harv. L. Rev. 2698, 2723-24 (2005).  Namecalling seems quite inconsistent such an attitude, and, when delivered by a judge, may also tend to diminish the sense of professionalism of others in the system.

Finally, thinking now of the work of Tom Tyler and others on procedural justice, the percevied legitimacy of a sentencing decision is likely influenced by the extent to which the judge is perceived to be neutral, caring, and respectful.  When the judge's words do not reflect these core procedural justice values, the judge may disserve the end of inculcating greater respect for the law and legal authorities. 

Cross posted at Life Sentences Blog.

Posted by Michael O'Hear on February 21, 2011 at 04:17 PM in Criminal Law | Permalink

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