Former federal judge turned Harvard lawprof Nancy Gertner makes the point:

The mythology of rampant sentencing disparity without guidelines has driven American sentencing for decades. The problem is that you cannot build a rational sentencing regime if the only important question is this one: Am I doing the same thing in my courtroom that you are doing in yours, even if neither of us is imposing sentences that make sense, namely, that work to reduce crime? You cannot talk about disparity unless you understand the context—disparity in sentencing with respect to what? What purposes? What characteristics? Similarly situated with respect to what? The offense? The chances of deterrence? Amenability to treatment?

When my buddy, Jake DiMare, proposed the Sentence-O-Matic 1000 as the solution for the issues surrounding the rhetorical ambiguity of 18 USC § 3553(a), his goal was to use empiricism to create a consistently applicable answer for judges when considering the question of what constitutes a proper sentence.

Judge Richard Kopf raised the question of whether the language was so devoid of meaning and guidance as to render § 3553(a) worthless.  Judge Mark Bennett responded “Sentencing requires us to weigh that which cannot be measured,” to which Judge Kopf replied: “Let’s be honest then and declare that sentencing is entirely a matter of discretion…”  If so, this raises the specter of sentencing being so arbitrary and capricious, so captive to any judge’s whim, as to be a total crapshoot.

Jake offered this reaction:

Was there ever a task in the courtroom more ripe for automation?

I tried, unsuccessfully, to explain that the beef was the antithesis of automation.  Sure, if we were to eliminate the myriad considerations that go into the sentencing of a unique individual under unique circumstances, we could reduce it to binary decisions and achieve consistency.  This would achieve the goal of eliminating unwarranted sentencing disparity, the hobgoblin of small minds.

Judge Gertner is far more successful at explaining why this is wrong.

To eliminate sentencing disparity, the United States Sentencing Commission and Congress chose to treat drug quantity the same across contexts, contexts that were very different. I want to talk about those contexts and the content of a just sentence. How do we deal with drug addiction? What is the punishment that makes sense? When is drug treatment appropriate in lieu of imprisonment? I want to talk about problem solving courts, reentry programs, and meaningful diversions. How can neuroscience help us craft treatment? What evidence based practices should we implement? What works?

And, above all, I want to talk about how to meaningfully undo the catastrophe of mass incarceration in this country, the catastrophe that we have created with our dual emphasis on eliminating disparity, and imprisonment as a cure all. It is a “one size fits all” approach, and that “size” has been ever more imprisonment. I want to talk about our uniformity-focused, criminal-record emphasis, incarceration-obsessed criminal justice policy.

While there has been a great deal of discussion about disparity, as an evil unto itself when one’s view is that the offense conduct alone is all that’s necessary to arrive at an appropriate sentence under the “one size fits all” vision of how criminal sentencing should work, it’s an unduly simplistic understanding, and it’s not what the law seeks to accomplish.

For example, it’s easy to say that all murderers should be sentenced to life in prison. But what of the differences between the wife who kills her husband after years of abuse?  Should she be given the same sentence as a sociopath who kills without any empathy for his victim?  What if the wife has an imperfect “battered spouse” defense, where at the moment she killed, she was under no threat of harm, but had merely reached the point where she felt capable of the act?

This isn’t to say it’s not culpable conduct, but surely these aren’t the same and shouldn’t be sentenced under some knee-jerk regime that demands that all murderers be given the same sentence.

But enough about my thoughts. Read the rest of Judge Gertner’s article for the nuts and bolts.

H/T Doug Berman