Friday, January 7, 2011

You’re damned if you do . . .

Criminal law is an incredibly malleable beast.  It is designed (or perhaps has evolved) to allow a judge to distort any given fact, or set of facts, to reach a predetermined outcome.  I recently exposed these judicial gymnastics in the Sixth Amendment context, here, and in the Fourth Amendment context, here. 

However, nowhere is this judicial slight-of-hand more evident than at sentencing hearings.

Consider, for example, the defendant’s dilemma at sentencing when it comes time to allocute, or make his statement, to the court.  On the one hand, he can “take responsibility” for his crime of conviction, but the judge is likely to dismiss anything he says under the theory that “talk is cheap.”  Worse yet, if the defendant testified at trial and lost, the judge could interpret his change of heart at sentencing as proof that his earlier testimony was perjured, and could use that to justify a stiffer sentence.  On the other hand, if the defendant says nothing or refuses to “take responsibility,” the judge could view him as being in denial or unremorseful, which also warrants a harsher sentence.  It’s a lose-lose situation.

But when sentencing a defendant, a more significant factor that the judge has to consider is the “character of the defendant.”  This vague concept includes, of course, the defendant’s education and employment history, and other personal factors.  Not surprisingly, good character—for example, a good education and employment record—imply that a lighter sentence is warranted.  Conversely, case law is replete with defendants who were given harsh sentences because they couldn’t hold a job and support their children, or they flunked out of school and became a drag on society.  And when defendants are eventually paroled from prison, they are required, as a condition of their parole, to maintain employment and/or to pursue their education.  If they refuse, they could be revoked and sent back to the slammer.  In short, education and employment are good. 

In State v. Johnson, however, one judge turned this conventional wisdom on its head and created a new, schizophrenic standard to which other tough-on-crime judges can aspire.  In Johnson, the defendant had a positive educational and employment history, and even had a history of military service to our country.  Despite this, the trial judge “viewed these factors as aggravating,” rather than mitigating, and handed down a stiffer sentence.  Why?  Because the defendant “should have known better” than to commit the crime.  The appellate court upheld the trial judge’s sentence and, more alarmingly, his reasoning. 

It will be interesting the next time this trial judge sentences a different defendant—say, an unemployed high school dropout without any military service—for a similar crime.  Under the judge’s newly created standard, such a defendant would have no basis to “know better,” and surely this judge will view his ignorance of the law as a mitigating factor that warrants a lighter sentence.      

You’re damned if you do . . .

1 comment:

  1. This was a great post, Mike. Admittedly, I hold judges, particularly Kenosha judges in a very high regard; therefore, I confess my pro-judge bias. Nonetheless, I believe that judges hold higher education and employment in a more favorable light when sentencing because society, as a whole, values these traits compared to their counters. I see the argument that those from a lower socio-economic background generally do not fair as well during sentencing. However, I believe that many judges take this factor into consideration for financial reasons: probability of rehabilitation. A strong argument can be made that a higher educated and better employed defendant could be less of a drain on tax dollars within the correctional system. Therefore, it would be best for the state to hold and rehabilitate those with lower education and lower employment possibilities longer. However, like always, that opens up the call for more tax dollars to correctional facilities and/or drug rehabilitation facilities, which no one wants to move for.
    -Anthony Villalobos