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XinpingZhuFirstPaper 3 - 31 Mar 2009 - Main.IanSullivan
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Courtroom 12B
-- By XinpingZhu - 22 Feb 2009 | | | During the sentencing, the judge repeatedly emphasized that the guidelines are now just advisory, as per Booker. But the fact is that his discretionary power has become immense. He can take wider range of sentencing factors. No doubt how he does this calculus is a new form of “legal magic”. At least it is possible to arrive a 50% of accuracy rate by predicting whether the accused is guilty of a certain crime, if you are a good student of Holmes. But how can anyone be confident to predict the outcome of a sentencing hearing? Of course statistical methods can be used, as hoped by Loevinger. With the mandatory sentencing regime crumbling in the federal courts, the personal characteristic of the sentencing judge is probably the determinative factor in the length of the sentence. This corroborates Frank’s critique that even if the legal rules are tight and neat, and even if the judge is intelligent and behave himself, his decisions are entirely unpredictable. Cohen based his critique on the unreliable nature of fact finding. Here exists similar fuzziness of fact finding. The judge wholly adopted the presentencing report prepared by the parole department. Those findings are almost irrefutable. Also each side marshaled all possible mitigating factors for the consideration of the judge. But the stacks are against the Dominican. He was in prison so he cannot go around the blocks to get support letters, or volunteer at the local church, or attend an AA meeting. He was a flight risk so he cannot post bail and leisurely plot defense strategy with his lawyer after grabbing a Starbucks coffee before stepping into the courtroom. He doesn’t speak English so he cannot read 7 Habits of Highly Effective People. Finally, he is just a small fry and he probably cannot offer any useful information to the government for trial. The other co-conspirator probably also plead so the government didn’t even need a trial, not to mention witnesses. Thus, Mr. Guerrero cannot possibly put the positive spin of the facts he needs in this critical juncture of his life. One doesn’t need to be a good statistician to predict that he will be worse off going through this process of “weighing the evidence”.
The post-Booker sentencing judge is engaging in a more subtle form of “legal science”. Sentence = L (f1, f2, …, fn). Prior to the Booker decision, L is a one to one function defined by a fixed table. Now L is a just a higher-order function which makes the “Sentence” also a function of the judge. After all, Booker is more honest since it recognized not all defendants are the same blameworthy just because they do the same criminal act with the same criminal history. It leaves the length calculus to the judge’s discretion, rather than the “ultra-rapid” legal-logic machine designed by a despotic US Sentencing Commission. Can we say Frank’s argument at least convinced 5 member of the Booker court with regard to sentencing? Call me primitive, I still found this terrifying. | |
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- A little bit of linguistic editing to remove the occasional blemish would be a good idea.
- It would have been helpful, if your real purpose was to discuss sentencing, to have begun not with the guidelines, but with the fact that the mandatory guidelines were a tiny parenthesis in history. The idea of "one size fits all" sentencing was the predictability you are claiming for it, but the primary result was to empower the prosecutor, because the only way to get a shorter sentence in the mandatory guidelines regime was through the prosecutorial declaration that you were cooperating. So the guidelines regime disempowered judges and wholly empowered prosecutors, which most people who weren't prosecutors found rather alarming and which district judges, who take sentencing rather seriously--even though most of them intensely dislike doing it--very much resented. Someone reading your essay wouldn't know any of this, because you didn't find it out.
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