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Thursday Ruminations

Hey, it could happen.  We all have our sentencing stories.  The guy who turned down the plea, then got hammered when he lost at trial.  The case where we drew the toughest judge on the bench for child porn cases, and the client got double-digit time, where he would have drawn low single digits, or even probation, if he'd been assigned to another judge.

There was a provision in the 1996 Ohio sentencing reforms that made "consistency" one of the principles and purposes of sentencing.  For good reason.  The law must be fair, and must appear to be so.  Respect for the law is diminished when a defendant's sentence depends on the name of the judge he drew in the arraignment room, or when co-defendants' sentences may vary wildly based on whether one of them exercised their constitutional right to trial.

Well, here we are, two decades later, and we still have our sentencing stories.  Consistency doesn't mean uniformity, the courts have held, and we certainly buy that:  there's no valid reason why everybody convicted of aggravated robbery should receive the same sentence.  But consistency should mean that defendants with similar criminal histories and who committed crimes under similar factual circumstances should get similar sentences.  That doesn't happen.

But it could, argue the authors of this article (h/t to Sentencing Law & Policy), if sentencing was done by computer.

It's not as outlandish as it might seem.  The Federal Sentencing Guidelines, adopted in 1984, basically adopted a "computerized" approach to sentencing.  In fact, I always thought it would make a great board game:  base offense level of 24, add two points for having a gun, another four for leadership role, subtract three for acceptance of responsibility, cross-index that with the criminal history category (three points for a prison sentence, two for any other felony, one for certain misdemeanors), and voila!  You'd have a sentencing range of 87 to 108 months.  No reason a computer couldn't do all that.  (When the Ohio Sentencing Commission came up with the reforms in 1996, they considered, but rejected, a similar matrix system.)

As the authors acknowledge in a footnote, though, "the accuracy and quality of computer decision-making is obviously governed by the quality of the data and accuracy of the algorithm that is designed to facilitate the decision."  That's the GIGO principle:  Garbage In, Garbage Out.  Under the Sentencing Guidelines, for example, if the defendant has a conviction for one violent felony and one drug trafficking offense, he becomes a "career offender," which will at least double his sentence.  That designation has been severely criticized as having no empirical basis; there's no reason to believe that someone with a prior marijuana trafficking conviction and an aggravated assault needs to be incarcerated for 18 years. 

For that and several other reasons, I don't see the author's proposal being implemented anytime soon.  Federal judges squawked about the Sentencing Guidelines it because it denied them discretion; I can imagine what the reaction would be if judges had to go back into their chambers to see what Ralph the Computer was going to spit out as a sentence for them to impose.

Still, the justice system is moving toward more "evidence-based" decisions:  bond and probation determinations are often set based on analysis of specific factors, and based on empirical data.  Given that appellate review of sentencing is a joke, moving in that direction on sentencing would be a positive step.

And this is the reason why...  One of the happiest moments of my career was when I realized I didn't have to do anything besides criminal law.  Like many lawyers who had chosen the small firm/solo route, I'd been a "general practitioner"; in other words, I would take whatever case came through the door provided that there was some money attached to it.  (And it didn't have to be much; as my wife told me, the only thing that amazed her more than what I'd do for money is what I'd do for no money.)  I handled personal injury cases, did wills, represented clients in domestic relations matters.

I should have started the last paragraph by saying one of the happiest moments of my career was when I realized I didn't have to do handle domestic cases anymore.  As I've often said, I've dealt with some of the most morally debased, downright evil people you'd ever want to meet.  But enough about divorce lawyers...

I was reminded of this when I ran across this ad for an Alabama firm looking for a "criminal/domestic lawyer," whose function will be to "destroy the opposition."  That's apparently not a mere metaphor; the ad continues that you "should want to destroy your enemies and leave their tattered bodies littered across the courtroom."  But maybe it is:  the very next sentence protests that this is indeed a metaphor, and that the owner "doesn't want a bar complaint saying I am advocating killing folks."  No, who could get that idea?

Anyway, if you want to go full metal jacket as an attorney, there's a number to call.  There's some bennies from the job, such as "drinking ourselves into a stupor at Alabama games on Saturday with comped tickets in Sky boxes."  Roll, Tide!

Down Memory Lane.  The other day, I alluded to the Billboard 100 for 1947 in my roundup of the 8th District's decisions, noting that the Harmonicrats "Peg O' My Heart" was the No. 2 song that year.  Actually, the song also ranked No. 23 and No. 28 that year, as recorded by Buddy Clark and the Three Suns, respectively.  Peggy Lee's "Golden Earrings" ranked 22nd, and made me wonder why the group Golden Earring never recorded a song named "Peggy Lee."  And the song from that era which should win the award for Least Likely To Be Covered is "Smoke!  Smoke!  Smoke! That Cigarette" by Tex Williams & the Western Caravan.

Second place in that category would probably be Arthur Godfrey's "Too Fat Polka," which featured the chorus, "I don't want her/you can have her/she's too fat for me." 

By the way, back then it was the Billboard Top 80.  It didn't become the Billboard Top 100 until 1950.


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