Archive for July 27, 2016

Procedural Fairness in Sentencing   Leave a comment

We don’t know who first said this: “Learn from the mistakes of others; you can never live long enough to make them all yourself.” But we surely know that judges can learn from the mistakes of other judges.  Explaining to a defendant why a judge imposed a sentence and insuring everyone understands that the decision was based upon neutral principles of law, not some personal vendetta, is an essential component of procedural fairness. Reflecting on what should be said in explaining a sentence is among the most effective checks on our implicit biases.

United States District Judge Rudolph Randa said some things at a sentencing that all judges can learn from. According to to a transcript, his remarks included these: “We had huge riots in this city.  Not unlike what happened in Baltimore this week.  And if we had something like this in this city today? With this pathology that we’ve got set in these neighborhoods? The same thing is going to happen here.”

So what did Judge Randa do that judges might learn from? Judge Randa sentenced Billy Robinson Jr. within the recommended range of the federal sentencing guidelines, yet he was not only reversed by the United States Court of Appeals for the Seventh Circuit, he was removed from the case.  As the appellate court put it: “Billy Robinson’s guilty plea was routine; his sentencing hearing was not. . . . During his sentencing hearing, the district court went far afield in its comments.  We are left without the ability to say confidently that the sentence was imposed in accordance with the proper procedures.” United States v. Robinson, No. 15-2019, 2016 WL 3947808 (7th Cir. July 22, 2016).

The protests in Baltimore and events the judge remembered from 1976 had nothing to do with a relatively minor player in a Milwaukee drug case in 2015, the court said.  Judge Randa was also chastised for remarks about crime in urban neighborhoods and about the defendant having had multiple children with different women.  The judge’s remarks “were irrelevant and had no basis in the record,” Chief Judge Diane Wood wrote. “They therefore undermine our confidence in the fairness of the proceeding.”

The appellate court carefully explained its problems with Judge Randa’s remarks at sentencing:

The sentencing hearing took a wrong turn by focusing on urban decay, social unrest, and the judge’s personal experiences in the relevant neighborhood. As we have said before, “it is inappropriate to blame [a defendant] for issues of broad local, national, and international scope that only tangentially relate to his underlying conduct.” Smith, 400 Fed. Appx. at 99 (citing Figueroa, 622 F.3d at 743–44). We need not review all of the comments made during sentencing; a few examples will suffice.

The district judge invoked his own recollections from his college days of Robinson’s neighborhood, noting that many years ago it was a safe place and now it was not, because of the omnipresent drug trade. These references are troubling because they could be “understood as a personal grudge that the judge bore against [Robinson] for dealing drugs in his old neighborhood.” United States v. Wilson, 383 Fed. Appx. 554, 557 (7th Cir. 2010) (nonprecedential). They appear to attribute “issues of broad local [and] national . . . scope”—changing crime rates in cities—to Robinson’s crime, when these issues at best “only tangentially relate to his underlying conduct.” Smith, 400 Fed.Appx. at 99. Robinson was not charged with a violent crime or a crime involving a firearm, nor did his criminal history include any such crimes.

The district judge also went too far when he suggested that Robinson’s crime was related somehow to events elsewhere in the country. The court discussed its belief that Milwaukee today is similar to Milwaukee in 1967, and drew questionable—and irrelevant—parallels between Milwaukee’s 1967 riots and recent protests in Baltimore over police brutality. He noted in particular some protests in Milwaukee over the Vietnam War in 1967 (12 years before Robinson was born)—protests that got in the way of his deployment to a combat zone. He wondered what would happen if something similar were to take place today, and he bemoaned the general lack of discipline, responsibility, and self-direction.

. . . .

The district court also used “colorful” language to “dispense with arguments that [it] did not appreciate.” See Figueroa, 622 F.3d at 743. In response to Robinson’s statement that his family supports him, the court said, “I don’t care how nice you are. How much your family loves you. I mean, my family loves me, too.” And in response to Robinson’s statement that he and his fiancée intended to move to Alabama in order to leave behind negative influences in Wisconsin and Illinois, the court pointed out that Robinson had five children by four different mothers, and questioned whether he was really prepared to support all five. Robinson’s childcare arrangements might be relevant to his sentence for some purposes. The fact that he has children with multiple mothers is not, however, “the real problem” (in the judge’s words) that his sentence is meant to address.

Judges should tailor a sentence to fit the facts and circumstances of the crime committed and the background of the defendant.  Prior offenses are usually easy to determine.  But when one moves to mental or moral propensities or social background, or pontificates about the effect crime as a way of explaining general deterrence, implicit bias can infect the decision—unless the judge is very careful.

The right to allocution dates back to 1776.  Allocution provides an opportunity for a defendant to explain—in his or her own words.  Although not every state has held the right to allocution to be a fundamental right, it is in essence the first component of procedural fairness: voice.

LEARNING FROM OTHERS

Steps to Getting Good at Sentencing:

  • Prepare Mentally

The transcript in United States v. Robinson makes clear that everyone was prepared. Judge Randa had read the presentence report and knew about the defendant. But was he mentally prepared? Interaction with a defendant at sentencing is not an easy task. Being mentally prepared is the essential first step.

  • Voice and the Right to Allocution

One of the most prevalent reasons people do not speak in court is intimidation.  Added to the intimidating atmosphere of a court environment at sentencing is fear: “Be careful what you say for fear of offending the judge.”  If intimidation and fear of a defendant to speak are allowed to permeate a sentencing, voice and the right to allocution can become hallow.

  • Saying Less Is Not Necessarily Better

There is a temptation to react to Judge Randa’s situation and conclude less is better. It is not. Sympathy can be appropriate at sentencing. Explaining why something that is important to the defendant cannot be recognized as legally relevant also is an essential part of good sentencing. 

  • Emotion Is Part of the Sentencing Process

Regulating your own emotions and those of others is a part of all court proceedings—and particularly of a sentencing. Some sentencings can evoke anger in a judge. While anger may or may not be appropriate to the situation, contempt of an individual is never acceptable. Victims can express anger and a prepared judge needs to regulate their emotions. Remorse is an emotion some defendants have and some defendants rather poorly fake. A defendant’s failure to show remorse is a powerful factor in many a judge’s decision on sentencing.  Yet, there is little evidence that remorse can be accurately determined. There is significant evidence that race can create obstacles to accurately evaluating remorse.  See Susan A. Bandes, Remorse and Criminal Justice, 8 Emotion Review 14-19 (Jan. 2016) (first published on October 23, 2015).–Kevin Burke

 

Posted July 27, 2016 by Steve Leben in Uncategorized