Public Defense

We don?t need no! Sentencing Guidelines!

By Gideon

I tried really hard to come up with a witty title, but this is all I could muster. After a long day stuck getting re-educated, I’m not going to try harder. Deal.

Via Scott via Doug Berman comes word of Norm Pattis’ latest article in the Law Tribune (which I might have read if someone hadn’t snagged it right away), in which he essentially argues for sentencing guidelines. Heck, the first sentence is:

Connecticut would do well to adopt comprehensive, non-mandatory sentencing guidelines in the criminal courts.

If that’s all you take away from the article, then, yes, you should go bang your head on a table or wonder if Norm’s tried any Federal cases recently.

But there’s more. What Norm is suggesting is a solution to a state-wide problem, one that I’ve written about before and one that really needs to be rectified somehow.

Here’s what he’s really complaining about:

I stagger from the courtroom to tell my client that the court cannot force the prosecutor’s hand. I cannot offer a principled explanation to this man about why another client of mine facing the same charges in a different courthouse was made a far better offer.

That’s just it. Everything in Connecticut is so…isolated. What’s a good offer in Hartford is unheard of in Waterbury. What would get accelerated rehabilitation in New Haven gets you a trial in Manchester.

Each courthouse in Connecticut is a separate entity, it’s own fiefdom. Some are run with iron fists and some with sensibility and compassion. But the results will always be different. A case that’s worth 1 year in one courthouse shouldn’t automatically become worth 7 years in another.

A long time ago, I asked what the reasons for this might be. The most popular answer was volume. Smaller courthouses have more time and resources to devote to prosecutions. Hence, a greater emphasis on adversarial litigation and demanding the moon and less on resolving the case efficiently and moving on to the next.

But that’s not all of it. As some regular readers will attest, in a few jurisdictions, the standard offers for certain crimes start in the high 30s. That’s years, not months. The same cases can get resolved in other equally busy courts for numbers in the 10s. That, squarely, rests on the shoulders of prosecutors. There are some that know they can twist the arm of every defendant, with pliant lawyers, into pleading guilty.

Sentencing guidelines, in my opinion, are a terrible idea. What Norm sees as the virtues of sentencing guidelines, I see as its pitfalls: a rigid set of rules, determining what the sentence should be for someone in an arbitrarily defined category. Sentencing guidelines remove all judicial discretion - and in good courts - prosecutorial discretion.

What he really means is that prosecutors need to stop being so varied in their assessment of cases. That judges need to grow a backbone and stop toeing the prosecutor’s line.

Maybe the next time legislators and the general public wonder why we’re spending so much money on the criminal justice system, they’ll look at the inconsistencies in prosecutions.

It would help. Sentencing guidelines won’t.

And to make you ignore everything I’ve typed thus far, here’s Pink Floyd:

Full post as published by A Public Defender on November 18, 2008 (boomark / email).