Judge H. Lee Sarokin spent 17 years on the bench in the District of New Jersey and 3rd Circuit. He then retired, moved to California and wrote a post at HuffPo. Whenever a judge of his stature writes, it’s worth a read to understand better what’s happening in the mind behind the robe, and Judge Sarokin’s post offers much, and little.
The post appears to be motivated by the criticism of the courts for allowing John Gardner, accused of the rape and murder of Chelsea King, to go free. Why, comes the followers of John Walsh, do they let these animals out? After extolling the virtues of the presentence report provided federal judges, Judge Sarokin explains:
How does this happen? My experience has been solely in the federal courts, where few crimes involve acts of violence like murder and rape. But I suspect that most of the state courts operate in the same or similar fashion. First, let me assure you that it is nothing like the TV judges, who rap their gavel, impose sentence or render a decision in a flash and then say: “Next case.”
But sentencing is far from a science. One of the reasons sentencing guidelines were enacted was to reduce as much a possible the discrepancy based solely upon the predisposition of the sentencing judge — the tough sentencer v. the lenient sentencer. A sentence should not depend on which courtroom a defendant walks into. But the biography, the sentencing guidelines, the penalty standards based upon the crime committed, do not spew out a uniform sentence. A judge on sentencing day hears the arguments of counsel for and against incarceration and frequently statements of remorse from the defendant; sees the anger and hatred from the victim and/or the victim’s family; observes the parents, wife and children (many brought to the courtroom as infants) of the defendant, reads of the public’s cries for vengeance and punishment and the personal letters begging for leniency and attesting to the good character and good works of the defendant. We also think about rehabilitation and deterrence, although I understand that rehabilitation of sex offenders is unlikely, and we have no way of knowing whether the risk of punishment has any effect.
What’s remarkable about Judge Sarokin’s description is that he confirms our worst fears, that after a while, it’s all routine. In a paragraph, he’s ably outlined the structure of any sentence, every sentence, as if it’s mere Kabuki theater and we’re merely playing our roles in the production. Yet my sense is that this isn’t Judge Sarokin’s intention, to take what is likely the most significant moment in a person’s life, the moment of sentence, and turn it into a banal exercise.
But what’s missing from the description is what distinguishes one human being from another, one sentence from another. Rather than offer insight, Judge Sarokin offers his apology.
What isn’t said here is how these “not God” creatures perform this “awesome task.” It remains every bit as mysterious after reading Judge Sarokin’s post as before. While noting “we hope we get it right” (us too) and “avoid the horrific tragedy of families like Chelsea King,” he neglects to mention the horrific tragedy of the families of the innocent, or those sentenced to draconian punishments because tough on crime is the tastiest flavor in Washington. While the post is clearly driven by the questions raised in the Chelsea King murder, and ignores the detail that John Gardner has yet to be convicted of anything, it leaves the impression that the only concern on a federal judge’s mind is how to put someone away for as long as the “limits of the law” will allow.
From the perspective of anyone involves in the criminal justice system, Judge Sarokin’s position, that’s not easy to determine an appropriate sentence, is hardly news. What is news is the depth of concern demonstrated when a sentenced prison re-offends, particularly when it’s a sex offender (who the judge specifically notes is unlikely to be rehabilitated). No one can argue that this is, and should be, a concern. But if that’s the only concern, and the only countervailing force is the limits of the law, Judge Sarokin reveals some very big problems in the mindset of the federal sentencing judge.
But what’s missing from the description is what distinguishes one human being from another, one sentence from another. Rather than offer insight, Judge Sarokin offers his apology.
We are not God, but we play God in these moments. The understandable public reaction in cases such as Chelsea King is to execute, forever incarcerate or medically disable persons who are likely to re-commit such terrible acts. Balancing the need to protect the public within the limits imposed by the law and the Constitution is an awesome task for a judge. We hope we get it right and avoid the horrific tragedy of families like those of Chelsea King, but sometimes we fail in that undertaking despite our best efforts or because of limits imposed by the law.It was the peculiar wording of this paragraph that caught my eyes, and caused some concern. On the one hand, there is “the need to protect the public.” On the other, “the limited imposed by law and the Constitution.” Is Judge Sarokin saying that they would do a much better job if it wasn’t for their hands being tied by law? Is protecting the public the predominant interest vindicated at sentence? Clearly, he makes no mention of any other factors set forth in 18 USC 3553(a). Does that mean that they are subsumed in his “limits of the law?”
What isn’t said here is how these “not God” creatures perform this “awesome task.” It remains every bit as mysterious after reading Judge Sarokin’s post as before. While noting “we hope we get it right” (us too) and “avoid the horrific tragedy of families like Chelsea King,” he neglects to mention the horrific tragedy of the families of the innocent, or those sentenced to draconian punishments because tough on crime is the tastiest flavor in Washington. While the post is clearly driven by the questions raised in the Chelsea King murder, and ignores the detail that John Gardner has yet to be convicted of anything, it leaves the impression that the only concern on a federal judge’s mind is how to put someone away for as long as the “limits of the law” will allow.
From the perspective of anyone involves in the criminal justice system, Judge Sarokin’s position, that’s not easy to determine an appropriate sentence, is hardly news. What is news is the depth of concern demonstrated when a sentenced prison re-offends, particularly when it’s a sex offender (who the judge specifically notes is unlikely to be rehabilitated). No one can argue that this is, and should be, a concern. But if that’s the only concern, and the only countervailing force is the limits of the law, Judge Sarokin reveals some very big problems in the mindset of the federal sentencing judge.
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One of the themes I keep returning to on my blog is that when it comes to social policy, including the criminal justice system, everyone matters. That’s why I don’t like Sarokin’s description of his responsibility as “Balancing the need to protect the public within the limits imposed by the law and the Constitution.” No mention of the defendent at all. No acknowledgement that imprisoning someone too long is a terrible thing.
That’s what I found disturbing (maybe even alarming) as well. I’m sure Judge Sarokin would respond that he obviously is concerned about that as well, but the language used in this post is something of a Freudian revelation. He didn’t intend to signal that he didn’t care as much about the marm of over-sentencing a defendant, but it just came out that way.
The rehabilitation of sex offenders may be unlikely but they do have the lowest re-offending rates of any group of crimes in Britain.
There’s much wrong with that sentence from the judge. Are we talking child rapists or 16 year olds sexting? But to many (which may include this judge), anybody in the category of sex offenders is a lost cause, incapable of rehabilitation, almost assured to re-offend and therefore deserving of LWOP if not execution. Forget whether they are in fact likely to re-offend; it’s now part of the urban legend.
Your comment “. . . [Judge Sarokin] neglects to mention the horrific tragedy of the families of the innocent, or those sentenced to draconian punishments because tough on crime is the tastiest flavor in Washington”, caught my attention.
The bodies of Chelsea King and Amber DuBois were found within 5 days and twenty miles of each other. (Chelsea King was found within twenty miles of our home.) Both were innocent, but received a death sentence without trial.
No one is now in custody for the death of Amber DuBois, and the person in custody for the death of Chelsea King has not been tried.
While your sentencing points are well taken, sympathy for the wrongfully convicted and the overly sentenced is now running at a low level around San Diego County.
After trial and conviction of the guilty person or persons, we sincerely hope that our judges will live up to your expectations, and the expectations of the survivors of Chelsea King and Amber DuBois, at sentencing. As Judge Sarokin suggested, it’s a difficult balance to reach.
That’s exactly the point. Do you want judges whose “sympathies” blow in the wind with the latest or loudest cause? Chelsea King and Amber DuBoise are two tragedies in the news, but they don’t dictate the direction of the law and attitude of judges until the next tradgedy, whether it’s another murdered teenager or an executed innocent, comes along.
Judges aren’t like old women reading the supermarket tabloid, obsessed with only today’s lurid news.
Agreed. I expect our judges to do the best they can under all the circumstances. Which, by and large, they do.
I’m a bit reluctant to agree they do. By and large, defendants are sentenced per pleas, and get the sentence they agreed upon or within the parameters they agreed to. In other instances, I’ve expressed significant misgivings as to whether sentencing makes much sense.
I was thinking only of the judge on the bench on the day of sentencing. Hence my qualifying “under all the circumstances.”
On that day I believe the man or woman on the bench should, and does, heed the words of Theodore Roosevelt:
“Do what you can, with what you have, where you are.”