In the majority of states indeterminate sentencing schemes prevail — under which the decision for whether a person serves anywhere from one year to a life in prison for a given crime is left largely to the unfettered discretion of a judge.  Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentencing guidelines “effectively advisory,” many state courts have read Booker to lend an imprimatur upon their indeterminate sentencing schemes.  Thus, in many jurisdictions, virtually no restraints upon judicial and/or executive discretion exist to ensure that similarly situated offenders convicted of similar criminal conduct will, within the same sovereign jurisdiction, receive punishments that are roughly similar to each other.

Certainly, this was the scheme behind the sentencing guidelines, and one that even criminal defense icon Norm Pattis has endorsed for his state of Connecticut in order to stay the tide of wildly differing sentences for similar conduct.  Lets face facts, there is an element of arbitrariness in every indeterminate sentence imposed.  What makes a crime “worth” a sentence of 20 years to one judge and 10 to another.  And where the heck does a third come up with 13 years?  Why not 13 years, 3 months, 12 days, for that matter? 

But the counterpoint to the argument against the arbitrary imposition of a length of time in prison is individualized sentencing, where the legitimate purpose of imposing a sentence are based on the person as well as the crime.  The Guidelines allowed for this in extreme cases, though the determination of what fell outside the heartland of the guidelines was again an arbitrary call.  Within the Guidelines, individuals with wildly differing circumstances, needs, fault and even crimes were treated as the same.  And let’s not even touch the subject of acquitted conduct sentencing, which muddies the waters beyond repair.

I doubt that anyone would argue in favor of arbitrary sentencing, yet if we’re honest about it, sentencing by its nature is arbitrary.  Typically, the victim sees the sentence as too lenient.  The defendant’s family sees the sentence as too harsh.  Only the judge sees the sentence as just right.  And yet sentences defy explanation for their precision.  There is simply no magic basis for saying that a sentence of one year, as opposed to two, is proper to satisfy the legitimate purposes of sentencing. 

The gist of the Sentencing Guidelines was to take a survey of how judges, given vast discretion to impose whatever sentence they believe proper, came out and develop a norm based on the nature of the crime, the harm caused (or alleged to be caused, since the Guidelines largely rely on fictional harms as decided by the prosecution), and the defendant’s prior criminal history.  This covers the basics in a rough justice sort of way.  It should have resulted in a type of consensus value for sentencing, and received widespread acceptance.  It never did.  Not even the judges like it, though they were ultimately forced to adhere to it by the Supreme Court until the Supreme Court changed its mind clarified itself.

Having not read Dan’s article (largely because it’s unavailable yet and secondarily because I’m trying to find time to read Dan’s new book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties), I don’t know where exactly Dan comes out on the subject, though it would appear likely that his thesis is that giving judges too much latitude in sentencing is unconstitutionally arbitrary.  If so, he would be right, of course.  As would be the person who argued that giving judges too little latitude in sentencing is unconstitutionally arbitrary. 

For this reason, I propose to develop for judicial use the Sentencealyzer 5000.  A defendant blows into a straw protruding from a little black box, which then shows a number on an LCD screen with the correct sentence to be imposed.  I would like to tell you how it works, but that’s proprietary information.  This will eliminate arbitrariness from sentencing, whether in terms of disparate sentences for roughly the same crime as doled out by different judges, or the same sentence for roughly the same crime as applied to different defendants.  Finally, a solution.