The View of Parsimony From the Bench

The requirement of 18 USC §3553(a) is pretty straightforward, that “a sentence sufficient, but not greater than necessary” to fulfill it’s purpose.  The law isn’t saying what that sentence must be. Only that it not be greater than necessary, which leaves just barely enough room for the judge to park a Mack truck.  Still, that’s not enough for some.

Via Doug Berman, the 7th Circuit vacated and remanded the sentencing of Richie Pennington :

Richie Pennington pleaded guilty to selling a firearm to a felon, distributing ecstasy, and possessing a firearm in furtherance of a drug-trafficking crime. The government recommended a 68-month sentence, the bottom of the applicable sentencing-guidelines range. Pennington argued that 64 months was enough.  The judge rejected Pennington’s argument because the four-month difference between the sentencing recommendations was so little.  He added that although the sentencing guidelines are not binding, “judges are told that [they] are to be followed.”  The judge imposed the 68-month sentence suggested by the government.  Pennington appeals, challenging the procedure the judge used to reach that decision.

We vacate the sentence and remand for resentencing.  The judge appears to have rejected Pennington’s request for a modest below-guidelines sentence simply because it was modest and below the guidelines.  There may have been other reasons why he did so, but as it stands, we cannot be sure the judge gave adequate consideration to Pennington’s argument.

What’s four months between friends? Well, the judge and Pennington probably weren’t really friends, but Judge Richard Mills of the Central District of Illinois nonetheless shrugged off the difference.  The Circuit, by opinion of Judge Sykes, held:

By characterizing the difference between the recommended sentences as “de minimis,” the judge implicitly accepted that 64 months was sufficient to serve the purposes of sentencing.  If so, the parsimony principle would ordinarily require the more lenient sentence.

It may come as a surprise to many that parsimony, the quality of stinginess or economy, is supposed to guide a judge in the imposition of a sentence. The judge is to impose no more time than absolutely necessary to fulfill the  legitimate sentencing purposes of §3553(a)(2). 

One of the most inexplicable aspects of sentencing is the basis upon which a judge concludes that one sentence is proper but another isn’t.  Why 17 years and not 16 years, 9 months?  There doesn’t seem to be much to commend one over another, and I have yet to hear a judge explain how some of the oddball sentences imposed make sense when a similar sentence, whether a year less or month less, is inadequate to serve its purpose.

But here, Judge Mills blew it.  He could easily have said that the 68 month sentence, as dictated by the Guidelines, was the minimum necessary to satisfy the demands of the law, and everybody would have walked away.  Instead, he did the one thing no judge can do.  He shrugged.

The question is whether four months on the back end of a five plus year sentence makes a difference.  Clearly, Mills’ answer from the comfort of his bench was “not so much.”  From the comfort of your desk chair, you may well agree.  From the comfort of a prison cell, those four months, 120 days, may seem a bit more significant, more real.  If only because that’s 120 mornings you don’t wake up in your own bed.

What’s revealed by Judge Mills’ sentence isn’t so much evil and callousness, though it wouldn’t be wrong to conclude that, but the detachment of those who make decisions about other people’s lives from the real consequences of their rulings.  They aren’t sentencing people, but defendants. Defendants are interchangeable cogs in the grinding wheels of justice. Rule and roll.

Run enough defendants through a courtroom and they all begin to look alike.  As much as we, the lawyers standing next to the guys in orange (or stripes in some backwoods jurisdictions), like to think our pleas for a lesser sentence are moving and heartfelt, the rhetoric may sound like the teacher in a Charlie Brown special, blah, blah, blah.  It’s not that it’s all been said before, though that’s often the case, but that breaking through the wall of detachment, behind which is the judge’s humanity, isn’t easy.

Obviously, this isn’t true of all judge or all lawyers.  And not every defendant is reduced to mere chattel in every courtroom.  But routineness of it all, the banality of shrugging off four months of a person’s life, is far too common, even with judges who sincerely believe that  they agonize over every sentence imposed.

Rarely does a judge speak such cavalier words as Judge Mills did in sentencing Richie Pennington.  Most know better than to say “whatever,” and assert that they have fully considered all arguments and concluded that a specifics number of months or years, and no more nor less, is required.  While there may be a reason to appeal, it’s not because the judge told the defendant from the bench that four months of his life isn’t worth the effort.

It’s not that they don’t think that, or that they have no magical powers to determine that 64 months is insufficient, but 68 months is exactly what parsimony demands.  Judges have no magic.  And, of course, it’s their job to sentence, and so they must arrive at a number to impose no matter that they are no more capable of a reasoned conclusion that 68 months is good, while 67 months won’t do. 

For those judges who can appreciate that a month, a day, in a human being’s life matters, and who truly agonize over every day of a sentence they impose, I applaud you.  And for those who shrug, whether openly or behind your wall of detachment where a month or a year lost to a person’s life is just a number, it’s time to retire. 

And for any lawyer who doesn’t do everything in his power to make his client into a living, breathing person, a spouse, a parent, a person, you have failed to play your role in the parsimony clause, and failed as the last person standing between the defendant and the grinding wheels of the system. Just because you get to go back to your office after the sentencing doesn’t mean a day in your client’s life doesn’t matter.

4 comments on “The View of Parsimony From the Bench

  1. Dan

    Thinking about parsimony and the concept of a sentence no greater than necessary to fulfill its purpose, it seems that there is a severe lack of sentencing options in between probation and incarceration. Sometimes the purpose of a sentence is to punish. For better or worse, that’s there in the 3553(a) factors. We can’t come up with something that punishes more than probation, but less than jail? Seems like a massive gap and a total failure to incorporate the parsimony principle at the legislative or rulemaking stage of things.

  2. SHG

    Not necessarily. We have fines and community service as options as well. We used to have the stocks, and there’s been some suggestion that we bring back public flogging. Granted, we don’t cut off the hands of thiefs any more, but where would we put all those severed hands?

  3. Dan

    They’re biodegradable, right? What’s the problem?

    In favor of flogging and the like, I’ve heard people argue that the flogging doesn’t harm the family of a breadwinner the way that prolonged incarceration does. I’m still not in favor of flogging, but upon reflection, it was a little less outrageous than I first thought.

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