Thursday, September 08, 2005

Say the magic words, win a reduced sentence

Okay, this is the Southeast. I understand that the larger culture in the region tends to be fairly conservative, but do we have to be so ass-backwards that we throw justice completely out of the window. From the article, 11th Circuit Judge Blasts Colleagues for Sentencing Stance:

A federal appellate judge in Atlanta has blasted district court judges and his own colleagues for "fostering disrespect for the rule of law" in their rulings and statements about criminal sentencing guidelines.

Earlier this year in its ruling on U.S. v. Booker, the U.S. Supreme Court decided that mandatory sentencing guidelines were unconstitutional. Judges had to be allowed to take the facts of the specific case before him into consideration and let those facts affect the sentence that is imposed.

So the question then becomes, what do we do with all of the people who were sentenced prior to that ruling? In some cases, such as the ones covered in this case, the judge specificly stated, "[t]he sentence I am going to impose is not a fair sentence in my view. ... I think Ms. Thompson deserves to be in prison. I don't think she deserves to be imprisoned for 360 months. That's a choice Congress and the government has taken away from the court." In other cases however, the judges - despite what they may have felt - didn't specifly state that the mandatory sentence was unjust.

And that is what this ruling turned on. If your judge said the magic words, "this sentence is unjust" (or words to that effect), then you get to have your sentence reviewed and reduced. But if your judge didn't say that the law sucked, if your judge didn't encourage disrespect for the law, then you lose and your original sentence stands.

In his dissenting opinion, Judge Gerald B. Tjoflat wrote:

"When a judge tells a defendant that his sentence is unjust and unfair, the defendant is inclined to believe him [and may] persist in attacking his sentence on direct appeal," Tjoflat said. "Finally, by openly disparaging the defendant's sentence, the judge fosters disrespect for the rule of law. ... If the judge does not respect the law that he applies, then why should society at large?"


"The court's opinion illustrates one of many problems with the Rodriguez standard or, as I coin it, the 'magic words' approach to plain error review," Tjoflat wrote in his Thompson concurrence. "Under Rodriguez, we do not generally reverse a sentence unless the district court has stated on the record that the guideline sentence is too high -- and by implication, unfair and unjust."

The Rodriguez standard, he noted, virtually compels a district judge who is dissatisfied with a sentence "to tell the defendant all about the injustice being done to him so that the defendant can receive the benefit of any subsequent appellate decisions."

This is not the case elsewhere in the country.

Four of the nation's 12 circuit courts, [Ohio State University law Professor Douglas A.] Berman has found, almost automatically grant defendants who were sentenced under mandatory sentencing guidelines prior to the Booker ruling a remand for resentencing, while two others more seek guidance from the sentencing judge.

The members of the 11th Circuit, Berman said in an interview, "seem to be trying their darnedest to make sure the Rodriguezes of the world do not get the benefit of the Booker decision.”

It makes you proud to live in a part of the country where we do everything we can to ensure that justice is not only blind, but cowering in the corner afraid that we're going to beat her like a red headed stepchild.

via TalkLeft


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