Sentencing & Integrity
Eric Muller of Is That Legal posts on the Ashcroft plan to monitor judicial compliance with the sentencing guidelines, and links to this story. This story will inevitably be discussed from a simplified, political perspective, e.g. criminals versus society, judges versus the administration, but I think there is a very interesting problem of legal theory that lurks behind the story, and that problem concerns “integrity.” Why are judges upset by Ashcroft’s move? One of the reasons is that the sentencing guidelines create a problem of intrapersonal integrity. Precisely because the guidelines are rules, they will inevitably break down in particular cases. The guidelines will require judges to sentence defendant A to more years than defendant B, when apprehension of the particulars of their cases make it clear that A deserves a much lighter sentence than B–based on quality of the actions, intentions, and effects of the A and B and their respective actions. As a matter of intrapersonal integrity, this is a bitter pill to swallow. There is, however, a flip side to the coin. Giving judges discretion may allow them to act consistently with respect to the sentences that they hand out, but it creates a different kind of inconsistency–inconsistency across different judges. If judges are given substantial discretion in sentencing, defendants A and B’s fate will inevitably be determined to a large extent by the judge who is selected in the case-assignment lottery. This creates a problem of interpersonal integrity or more aptly, political integrity As a society, we act arbitrarily and not on the basis of principle, when we sentence on the basis of a lottery. And there is one more dimension to this issue that involves legal theory. The problem of integrity would persist even if all the judges were committed legal formalists, but this problem is exacerbated by legal realist judges. If the judges treat the law as a mere instrument, then the sentences given to criminal defendants will depend, perhaps in large part, on the political orientation of the judge to whom the defendant’s case is assigned. Simplifying grossly, liberal judges will be more lenient and conservative judges more harsh–depending, of course, on the offence.
All the theory that fits.