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What to do about sentencing

I had an arraignment the other day, always an interesting experience.  It's a perfunctory ritual:  your case is called, you go up with your client, mumble your name and phone number for the court reporter, then tell the judge you've had the indictment for more than 24 hours -- even if you picked it up at the clerk's office earlier that morning -- waive its reading, enter a plea of not guilty, and ask that the bond be continued.  On cue, the judge intones that the plea of not guilty is entered and bond is continued, and then we come to the Main Event:  the judge looks at his computer, which gives the name of the judge who will be handling your client's case.

Of the 34 judges, there are probably about three that you definitely don't want, and about a half dozen that you definitely do want, with the rest spread across the spectrum between that.  The first case is called, and the lawyer gets one of those in the first category; the attorney next to me whispers, "Well, Marv took a bullet for us."  There's an in-between judge for the next couple cases, and the fourth lawyer strikes paydirt.  He's visibly grinning as he walks out of the courtroom.

Why is it this way?  Because 95% of criminal case are going to wind up with a plea or a conviction, and that means a sentence, and the single most determinant factor in what sentence you're going to get is the name of the judge the computer spits out.

Should it be that way?  I did a post a while back about the 52-year sentence handed down to a former Cleveland police officer charged with child pornography and attempted rape for a trying to arrange for a liaison with a 12-year-old girl who didn't exist.  I know judges here who would have given a sentence in single digits for that.  The post-Foster landscape, which essentially gives judges unfettered discretion in imposing sentences, has been bemoaned by Supreme Court and appellate judges alike.

So what to do about it?

Obviously, appellate review was intended as a method of leveling the disparities in sentencing:  RC 2929.11 commanded that sentences "be consistent with sentences imposed for similar crimes committed by similar offenders," and the appellate courts could ensure that they were. 

But how?  One way would be to have an accessible database containing every sentence handed down in every case, so if a panel wanted to know what the median sentence was for a defendant convicted of 2nd degree burglary, with two prior felony convictions, one of which had resulted in a prison sentence, they could do so.  That's not as daunting a task as one might imagine; if you asked me what  Albert Pujols' batting average has been over the past three years when the count is 2 and 0, versus when the count is 0 and 2, it'll take me about two minutes to find out.  (.396 and .212, respectively.)  It probably wouldn't have been that daunting a task had the legislature funded the commission and database that would have kept track of that stuff, as SB2 mandated, but it didn't.

Another way was suggested by the 8th District last week in State v. Nimmer, where it reiterated the holding from a 2009 case that consistency review could be had by determining "whether the sentence is so unusual as to be outside the mainstream of local judicial practice."  At first blush, that sounds good:  the court uses its institutional memory to decide which sentences are grossly excessive.

Upon closer reflection, though, it breaks down.  What "institutional memory"?  There are twelve judges on the 8th District appellate court, a quarter of them holding the position less than four years.  Obviously, each judge hears only a fraction of the cases involving sentencing issues.  What does a panel do when it hears a sentencing case?  Obviously, it can't poll the other nine judges to see what their experience has been, so they have to base it on their own.  And the more cynical among us could argue, with some justification, that with 34 judges on the common pleas bench, there is no "mainstream of local judicial practice." 

Which brings us to the next problem with that analysis:  sample bias.  What cases get appealed on sentencing issues?  Those in which the defendant argues that the sentence was disproportionate.  Nobody's going to appeal a 3-year sentence on a child porn case, claiming that the defendant got a raw deal.  The only cases the court of appeals is going to review are the ones which push the envelope, the 20-, 30-, and 50-year sentences, and the result is that after a while, appellate judges figure that those sentences are "within the mainstream," because those are the only ones they see.

An alternative for a sentencing scheme is a matrix system, similar to the one used by the Federal courts and several other states, such as Oregon.  (Interestingly, that was one of the possibilities considered, and rejected, by the Sentencing Commission back in 1995.)  There, the offense characteristics are cross-indexed against the defendant's characteristics -- primarily (or, in the case of the Federal system, solely) his criminal history -- and the result is a sentencing range, usually within a span of about a year.

Well, that sure gets rid of sentencing disparities:  one guy with a second degree felony burglary conviction and two priors is going to get the same sentence, within a few months, as another guy with a second degree felony burglary conviction and two priors.  Even if the second guy's felony convictions are twenty years old and the first guy just got out of prison for the last of his. 

Federal judges, who operated under this system for over twenty years, spent most of it screaming about how unfair it was because it robbed them of any discretion.  Then in 2006, the Supreme Court held in Booker v. US that the sentencing guidelines were only "advisory" because of Apprendi/Blakely concerns over the right to jury trial.  Best of both worlds, right?  A determinable and standard sentence, with the ability of the judge to deviate from it where appropriate. 

So what happened?  Well, a study of the post-Booker sentencing decisions of 10 Federal judges in Massachusetts revealed this:

Four of the 10 judges in the study followed what the author calls a “free at last” sentencing pattern, one characterized by a low rate of below-guidelines sentences prior to Booker and a much higher rate of below-guidelines sentences since.  Sentences by three other judges fit a “business as usual” pattern, with very little change between periods.  One judge’s sentences fell into a “return to form” pattern, marked by a high rate of below-guidelines sentences prior to Booker and a high rate of below-guidelines sentences since.  (One judge’s sentences fit no distinct pattern.  The other judge’s sentencing practices fluctuated wildly.)

Indiana University law professor Ryan Scott, who conducted the study, finds the results troubling.  “It seems to suggest,” he says, “that the sentence a defendant gets has a lot to do with the judge who is doing the sentencing.”

The "damned if you don't, damned if you do" point is emphasized by the fact that the guidelines were initially enacted to eliminate the problem of the sentence a defendant got having a lot to do with the judge who was doing the sentencing.

So maybe what we need to do is realize that a fair and equitable sentencing scheme -- one which prizes both consistency and judicial discretion -- is the Holy Grail of criminal law, and just as unattainable.  "Guided" discretion, with firmer guidance at the top ranges, especially with regard to consecutive sentencing, since that's where the greatest disparities can result.  But if you get one of the Bad Three instead of one of the Good Six in Cuyahoga County, well, that's just the way it is.


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