tag:blogger.com,1999:blog-5173950.post8099094749666919581..comments2024-03-28T13:37:26.314-04:00Comments on Grim's Hall: A Genuine Problem with the SystemGrimhttp://www.blogger.com/profile/07543082562999855432noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5173950.post-1551231455531262842017-05-14T23:42:08.497-04:002017-05-14T23:42:08.497-04:00Sure, and there was also a well-founded concern ov...Sure, and there was also a well-founded concern over inconsistencies among judges, which introduced an unpleasantly lottery-like aspect to the process, as well as a concern that attractive young criminals of the right race and class would receive only slaps on the wrist. But if we take discretion away from judges because we don't trust them to execute it properly, we may create not much more than the illusion of increased consistency. If judges, juries, and the public in general aren't really on board with the stiffness of penalties in real cases, we'll see everyone from the police to prosecutors to judges and juries finding ways out of the box. Lesser crimes will be charged and pleaded out, or juries will nullify.<br /><br />The law is not self-executing. It needs people behind it.Texan99https://www.blogger.com/profile/10479561573903660086noreply@blogger.comtag:blogger.com,1999:blog-5173950.post-86774907071033609692017-05-14T23:19:30.107-04:002017-05-14T23:19:30.107-04:00Wasn't one of the driving factors behind manda...Wasn't one of the driving factors behind mandatory minimum sentencing laws some high-profile instances wherein judges issued what were in hindsight seen as incongruously lenient sentences on individuals who went on to commit serious crimes once they were out?Mattnoreply@blogger.comtag:blogger.com,1999:blog-5173950.post-55331613467296763372017-05-13T23:53:22.889-04:002017-05-13T23:53:22.889-04:00One problem—one that I don't think bears direc...One problem—one that I don't think bears directly on sentencing guidelines, but is more general—is that being a judge these days almost always means you're high upper-middle class, and more than likely have always been. It is my sense that this wasn't always the case. It can cause a certain... disconnection from the reality of people whose economic situation is way below that of someone who makes six figures and has a comfortable retirement account.<br /><br />Someone posted a few weeks ago about a hearing where there was some kind of fine or arrears, and the judge kindly said, "You don't have $12,000? Oh. Well, why not just borrow it from a family member?" Caused me a KLUNK moment with my head on the keyboard, that did.jaedhttps://www.blogger.com/profile/03328666344764784829noreply@blogger.comtag:blogger.com,1999:blog-5173950.post-66455301293482000612017-05-13T09:51:49.063-04:002017-05-13T09:51:49.063-04:00Mandatory minimums are a symptom of a problem: th...Mandatory minimums are a symptom of a problem: the public doesn't buy into a criminal law and its associated penalty. It's the same problem we see with immigration laws.<br /><br />The bandaids don't work. The laws have to reflect what the people in general are willing to support, or the machinery shakes itself apart.Texan99https://www.blogger.com/profile/10479561573903660086noreply@blogger.comtag:blogger.com,1999:blog-5173950.post-91427079187779959332017-05-12T15:49:51.103-04:002017-05-12T15:49:51.103-04:00Juries in the sentencing phase need not be unanimo...Juries in the sentencing phase need not be unanimous--that's generally a statutorily set requirement, and in some jurisdictions, there need only be a super-majority of some level. As I understand it, unanimity is universally required only in capital cases; in these, the jury must be unanimous even if its role is limited to recommending a death sentence rather than setting it.<br /><br />Juries wouldn't necessarily do a better job of sentencing, but I think they'd be more likely to. Judges aren't necessarily of the community. The point of juries in Anglo-Saxon jurisprudence, and especially in American jurisprudence, is to be a body trying the defendant's guilt or acquittal that's formed from the defendant's peers--and (by design or side effect) to be the local community's representatives in the trial (however broadly "local" might be defined). As such, the jury, especially in matters of sentencing, would be more likely to apply their community's standards to the question than a judge would be. That would result in differing sentences in differing communities for substantially the same crime, but I see that as a benefit, not a detriment. Even with Federal (national) crimes, there's no reason Texas' community standards or Plano standards or some one-size-fits-all Federal standard should be applied regarding a crime committed in New York State or Outback, Idaho. The crime, after all, having been tried in the district in which the crime was committed, was committed, say, against that New York community or Outback's, not Texas'.<br /><br />And: judges can't engage in nullification; juries can. It doesn't get any farther below sentencing guidelines' minimum than that, even if nullification is more often done in the trial phase than in the sentencing phase. And juries don't have to justify their decisions to lawyers, whether the latter have otherwise legitimate beefs or are just rent seeking.<br /><br />Eric HinesE Hineshttp://aplebessite.comnoreply@blogger.comtag:blogger.com,1999:blog-5173950.post-90275859119733593982017-05-12T12:50:41.428-04:002017-05-12T12:50:41.428-04:00Reading up on the issue a bit more this afternoon,...Reading up on the issue a bit more this afternoon, I'm not sure the whole project doesn't need to be redone. It sounds as if judges regularly ignore the sentencing guidelines, but usually in the direction of increasing the sentence beyond what is recommended: and that the reasons for doing this are often that the judges deem a particular offense to have been a "hate crime," and not just (say) a murder.<br /><br />What was wanted was a standard for addressing disparities that might arise from prejudice or other unconscious bias. What we've gotten is a minimum that is too harsh, and that courts usually reject only in making it harsher. The reasons for doing so are constitutionally dubious. <br /><br />To your point: Would the jury do a better job? Maybe, insofar as a jury acts unanimously, and presumably most of the time any sizable minority will end up with members on the jury who would act to counter blind prejudices. Maybe not, though, as juries are untrained legally and may do what they want.Grimhttps://www.blogger.com/profile/07543082562999855432noreply@blogger.comtag:blogger.com,1999:blog-5173950.post-13702401934715558822017-05-12T12:00:31.811-04:002017-05-12T12:00:31.811-04:00What makes it a problem is, then, the mandatory mi...<i>What makes it a problem is, then, the mandatory minimums that exist in the law. That's a problem for legislators, not the Justice Department.</i><br /><br />That misconception is part of the problem, too. There are no mandatory minimum sentences; the sentencing guidelines are just that--guidelines. They've achieved a <i>de facto</i> mandatory status only because the appellate courts have taken the guidelines to be mandatory (in violation of the judiciary's status as a coequal branch of government, rather than a subordinate one), and trial judges are too loathe to cross their appellate and thereby force the appellate to rethink a position.<br /><br />The problem is not with DoJ, certainly, but it's primarily a judicial branch one, not legislative, albeit there's a strong need for the legislature to clarify the <i>guideline</i> status of the sentencing guidelines. My own view here would be to do away with the guidelines altogether and put the sentencing entirely in the hands of the jury.<br /><br />Eric HinesE Hineshttp://aplebessite.comnoreply@blogger.com