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Thursday, June 06, 2013

If You Don't Like Prisons That Much, Then Why "Let Judges Be Judges?"

One of my ongoing concerns about many in the academy's infatuation with individualized sentencing and the preservation of substantial judicial discretion when it comes to sentencing is that there is a tendency to obscure what judicial discretion will do. Lots of folks complain about how structured sentencing (particularly in the Fed system) means that prosecutors now run the show and that judges are less powerful than they were (or would be) in indeterminate (fully discretionary) sentencing regimes. Lots of these academic voices, however, are pretty lefty/libertarian/pro-defendant/anti-mass incarceration (pick one or more of these). The problem as I see it is that the presence of substantial judicial sentencing power will often lead to stiffer sentences, not more lenient ones. That's because prosecutors and defense lawyers often bargain away charges, facts, etc, and by not sharing the existence of those facts/charges, the sentencing judges are left to defer to the deals struck by the insider repeat players. But when judges have concerns that these deals are being struck in a way that's anti-retributive or bad for public safety, they often want to have the information that would allow them to impose LONGER sentences.  In sum, I bet that the more judicial discretion there is, and the more information judges have, the longer the sentences will be. 

This is, of course, an empirical hypothesis, and happily, there is some good empirical support for the proposition I'm noting. Kevin Reitz wrote a fantastically important and understudied piece in the Texas Law Review showing, among other things, that states with indeterminate sentencing have among the highest rates of incarceration. 

But anecdotally, you need a good story to see this dynamic, and Doug Berman's Sentencing blog has the story you need to see this. As the story goes, Judge Stephanie Rose on the fed bench in Iowa is excoriating the federal prosecutor's office for not disclosing more information about defendants that would lead to stiffer sentences. To my mind, this is an illuminating example of a much larger problem. Normatively, of course, indeterminate/discretionary sentencing doesn't have to lead to higher punishment levels necessarily, but it shouldn't be suprising that the contingent forces tend to work in that way.

--One last note. I've been watching The West Wing on Netflix while working out for the last few weeks, and I noticed that, at one point in one of the episodes, late Season 1 or early Season 2, Aaron Sorkin/Jed Bartlet seemed to think that empowering judges with substantial sentencing discretion was an obviously attractive thing to do from the liberal political perspective of the Bartlet presidency. I found this, um, unconvincing, notwithstanding my general intoxication with the show.  

Posted by Administrators on June 6, 2013 at 11:33 AM in Article Spotlight, Blogging, Constitutional thoughts, Criminal Law, Dan Markel | Permalink


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The connection between indeterminate sentencing and stiff sentences certinaly appears to be true in the juvenile system, where judges usually have tremendous discretion at sentencing (or "disposition").

Posted by: Cynthia Godsoe | Jun 6, 2013 4:22:38 PM

I think you're right that there's a tendency to overlook the empirical question of what judges would do. Some of that may happen because we complain about the system we have, not the system we don't have. With that said, I wonder if that tendency is explained by the personal experiences of at least some of the individuals who are objecting to the current system. Here's a hypothesis. Determinate sentencing tends to equalize the sentences imposed in different districts. Generally speaking, it makes the sentences lower in districts with lots of law and order judges and higher in districts with lots of more liberal judges, at least relative to indeterminate sentences. Most crim law academics who practiced did so in the districts with judges who on average are more liberal than the norm, such as districts in large cities that tend to draw members of the bar who are "blue" rather than "red." (Think D.Mass, N.D.Cal, etc.) I wonder if that leads them to think more often of examples of judges who would give lower sentences than higher ones.

Posted by: Orin Kerr | Jun 6, 2013 12:13:04 PM

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