Saturday, May 10, 2008
The next thing...
My other project for the week (besides the guideline principles "Acid Trip" piece) actually takes me into unfamiliar terrain-- legal philosophy. I'm learning a lot as I work on this new article, and I've got a big chunk done. Here is the start of it:
The realm of federal sentencing has become (among other things) a fascinating social experiment. There, judges are constrained by “advisory” sentencing guidelines, which are very specific about what an appropriate sentence might be. Because sentences within the guidelines are less likely to be appealed, and because many federal appellate courts consider a sentence within those guidelines to be presumptively reasonable, there is a strong incentive for sentencing judges (who do not like to be reversed on appeal), to sentence within the guideline range.
Given this strong incentive, we have seen two surprising things happening in federal sentencing. First, judges sentence outside of the guideline range more than one-third of the time. Second, when they do abandon the sentencing guidelines, they do so by going below the recommendation about 96% of the time, while going above the guidelines only 4% of the time.
It is the second of these observations that is the basis of this article. Obviously, federal judges overwhelmingly reject the guidelines because they view them as too harsh as they sentence an individual defendant. Where does this tendency towards mercy come from? My thesis here is that this is an example of natural law—that the impulse towards mercy is “written on the hearts” (as Aquinas might say) of those judges who must stand in judgment of living, complex people who come and stand before them, awaiting a sentence.
The realm of federal sentencing has become (among other things) a fascinating social experiment. There, judges are constrained by “advisory” sentencing guidelines, which are very specific about what an appropriate sentence might be. Because sentences within the guidelines are less likely to be appealed, and because many federal appellate courts consider a sentence within those guidelines to be presumptively reasonable, there is a strong incentive for sentencing judges (who do not like to be reversed on appeal), to sentence within the guideline range.
Given this strong incentive, we have seen two surprising things happening in federal sentencing. First, judges sentence outside of the guideline range more than one-third of the time. Second, when they do abandon the sentencing guidelines, they do so by going below the recommendation about 96% of the time, while going above the guidelines only 4% of the time.
It is the second of these observations that is the basis of this article. Obviously, federal judges overwhelmingly reject the guidelines because they view them as too harsh as they sentence an individual defendant. Where does this tendency towards mercy come from? My thesis here is that this is an example of natural law—that the impulse towards mercy is “written on the hearts” (as Aquinas might say) of those judges who must stand in judgment of living, complex people who come and stand before them, awaiting a sentence.
