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XinpingZhuFirstPaper 4 - 01 Apr 2009 - Main.MolissaFarber
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| META TOPICPARENT | name="FirstPaper" |
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Courtroom 12B
-- By XinpingZhu - 22 Feb 2009 | | | It is probably rash for me to reach conclusions since I have only sit through two sentencing hearings and I missed most of the trial prior to the sentencing. But I cannot help but to wonder what the factors are in play during sentencing. Both defendants are accused of essentially the same type of crime and the differences between them are: 1. Race 2. Cooperation with the government 3. Substance abuse victim defense 4. Citizenship 5. Prior conviction. If we just look at the acts of the defendant themselves, there is no way that Mr. Guerrero is more blameworthy than Mr. Rehnquist. Mr. Guerrero is just a small fry in a vast drug distribution empire while Mr. Rehnquist could be described as a vital link of the distribution chain.
During the sentencing, the judge repeatedly emphasized that the guidelines are now just advisory, as per Booker. But the fact is that his discretionary power has become immense. He can take wider range of sentencing factors. No doubt how he does this calculus is a new form of “legal magic”. At least it is possible to arrive a 50% of accuracy rate by predicting whether the accused is guilty of a certain crime, if you are a good student of Holmes. But how can anyone be confident to predict the outcome of a sentencing hearing? Of course statistical methods can be used, as hoped by Loevinger. With the mandatory sentencing regime crumbling in the federal courts, the personal characteristic of the sentencing judge is probably the determinative factor in the length of the sentence. This corroborates Frank’s critique that even if the legal rules are tight and neat, and even if the judge is intelligent and behave himself, his decisions are entirely unpredictable. Cohen based his critique on the unreliable nature of fact finding. Here exists similar fuzziness of fact finding. The judge wholly adopted the presentencing report prepared by the parole department. Those findings are almost irrefutable. Also each side marshaled all possible mitigating factors for the consideration of the judge. But the stacks are against the Dominican. He was in prison so he cannot go around the blocks to get support letters, or volunteer at the local church, or attend an AA meeting. He was a flight risk so he cannot post bail and leisurely plot defense strategy with his lawyer after grabbing a Starbucks coffee before stepping into the courtroom. He doesn’t speak English so he cannot read 7 Habits of Highly Effective People. Finally, he is just a small fry and he probably cannot offer any useful information to the government for trial. The other co-conspirator probably also plead so the government didn’t even need a trial, not to mention witnesses. Thus, Mr. Guerrero cannot possibly put the positive spin of the facts he needs in this critical juncture of his life. One doesn’t need to be a good statistician to predict that he will be worse off going through this process of “weighing the evidence”. | |
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- This paragraph feels too long for the average reader - at least if I'm any indication of such a reader. You lost my attention here. - Molissa
| | | The post-Booker sentencing judge is engaging in a more subtle form of “legal science”. Sentence = L (f1, f2, …, fn). Prior to the Booker decision, L is a one to one function defined by a fixed table. Now L is a just a higher-order function which makes the “Sentence” also a function of the judge. After all, Booker is more honest since it recognized not all defendants are the same blameworthy just because they do the same criminal act with the same criminal history. It leaves the length calculus to the judge’s discretion, rather than the “ultra-rapid” legal-logic machine designed by a despotic US Sentencing Commission. Can we say Frank’s argument at least convinced 5 member of the Booker court with regard to sentencing? Call me primitive, I still found this terrifying. |
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