|
Back to list of Dissenting
Opinions of Judges
 January
21, 2005 - The New York Times
Sentencing and Sensibility
By Myron H. Thompson, Federal Judge
Montgomery, Ala. - MORE than 2,500 years ago, the Athenian
leader Draco codified the laws of his city-state, which was then
suffering from political and social unrest.
According to Plutarch, "Death was appointed for almost
all offenses, insomuch that those that were convicted of idleness
were to die, and those who stole a cabbage or an apple to suffer
even as villains who committed sacrilege or murder."
However repressive Draco's code may have seemed to later generations
- and it spawned its own pejorative adjective, "draconian"
- it was well intentioned. Draco sought to replace a relatively
arbitrary system of oral law that had been maintained by the
nobility. His written code of crime and punishment provided more
power to the state as an arbiter of justice and ensured greater
uniformity in the meting out of punishments.
Yet Draco's efforts to institute a one-punishment-fits-all
system of sentencing eventually became viewed as barbarously
severe, and his code was repealed.
Draco's example is especially relevant in the wake of the
Supreme Court's decision last week, in United States v. Booker,
that the sentencing guidelines federal judges have used for criminal
offenders for more than 20 years were advisory, not mandatory.
Since the court's holding may increase trial judges' discretion
in sentencing - and since the court itself invited a legislative
response - some members of Congress are sure to propose more
statutory sentencing rules, like more and harsher minimum sentences.
Yet amid the confusion that will undoubtedly follow this decision,
we should keep in mind one basic principle: neither consistency
nor codification guarantees justice. While few if any are calling
for a return to the practically unfettered discretion that judges
had before the sentencing guidelines came into effect, the nuances
of individual cases necessitate a certain fluidity in imposing
punishment. Congress should seek to shape judicial discretion,
not to lock it in a vise.
A sentencing scheme that provides different punishments for
offenders with similar backgrounds who are convicted of similar
crimes under similar circumstances is clearly unjust. Yet so
is one that provides comparable punishments for offenders with
different backgrounds who are convicted of similar crimes under
different circumstances.
Ultimately, it is the trial judge who is in the best position
to distinguish between these two sets of circumstances, although
Congress's guidance is critical in ensuring that one standard
of justice exists throughout the federal court system.
It is the judge who can appreciate the full complexity of
the offender and his crime, and no prescriptive set of laws can
appreciate the subtleties in determining the punishment that
justice demands. If the 600-plus pages of the most recent set
of sentencing guidelines have taught us anything, it is that
punishment cannot be reduced to an algorithm.
As Congress begins to consider its response to the Supreme
Court's decision, may all of us be mindful of both the past and
the future, so that generations to come do not use our own lawmakers'
names as synonyms for a harsh and unforgiving legal system.
Myron H. Thompson is a federal district court judge.
Back to list of Dissenting
Opinions of Judges
If you have a dissenting opinion of a Federal or State Judge,
please mail or e-mail a copy to:
November Coalition
282 West Astor
Colville, WA 99114
(509) 684-1550
editor@november.org
|
