{"id":7717,"date":"2005-01-13T09:15:00","date_gmt":"2005-01-13T16:15:00","guid":{"rendered":"http:\/\/hill-kleerup.org\/blog\/wp\/2005\/01\/13\/legal-cycles-of-indeterminate-length.html"},"modified":"2014-11-10T16:19:17","modified_gmt":"2014-11-10T23:19:17","slug":"legal_cycles_of","status":"publish","type":"post","link":"https:\/\/hill-kleerup.org\/blog\/2005\/01\/13\/legal_cycles_of.html","title":{"rendered":"Legal cycles of indeterminate length"},"content":{"rendered":"

Back in the Dark Ages, when I was in high school debate, one of the annual topics (my sophomore year, as I recall) was Legal Reform. One of the hot topics at the time was the discretion that judges had in determining the length of sentences.<\/p>\n

In those days, the problem was that judges were infamous, as a whole, for wildly disparate sentencing, depending on what factors they took into account, how they felt about the law, etc. Two people, accused and convicted of the same crime under similar circumstances, might very well face very different sentence lengths, or prison for one while the other got probation, etc. This obviously was unjust.<\/p>\n

Over the years<\/s> (cough) decades since then, the pendulum has swung the other way. To keep crazy hanging judges and fuzzy-headed pinko judges (more often targeted at the latter, since the inclination was always to “get tough on crime”) from not paying attention to how important they thought certain crimes were, legislators started putting out more and more mandatory sentences, and mandatory sentencing guidelines. If convicted of X, sentence to by Y, with various conditions pertaining by law to reduce or (more likely) increase Y.<\/p>\n

This, in turn, created different injustices. For one thing, it put a lot more power in the hands of prosecutors, who, by deciding what to charge (with fixed sentences to follow), could be as capricious and subjective about particular cases (echoing the capriciousness and subjectivity of judges earlier). Worse, since Real Life tends to be horribly complicated, and the law can rarely cover every case, stories of unjust sentences abounded (e.g., various Three Strikes provisions — “Steal a golf club? Go to prison for life!”) as judges were forced to hand down sentences based on tables and formulae, not what “seemed” to be right and reasonable.<\/p>\n

The pendulum may be swinging back the other direction<\/a>, though, thanks to the Supreme Court.<\/p>\n

The [federal sentencing] guidelines, intended to make sentences more uniform, should be treated as merely advisory to cure a constitutional deficiency in the system, the court held in an unusual two-part decision produced by two coalitions of justices. […] From now on, Justice Breyer said, writing for the majority in this portion of the decision, judges “must consult” the guidelines and “take them into account” in imposing sentences. But at the end of the day the guidelines will be advisory only, with sentences to be reviewed on appeal for “reasonableness.”<\/p>\n

It’s a scosh more complicated than that (as is the issue itself), and the case stemmed not so much from a challenge to mandatory sentencing rules but as to whether the judge could decide on a point of fact not decided upon by the jury when determining which of the rules pertained to a sentence. And it’s not clear, of course, how Congress will address the matter, since they get as persnickety as the judiciary when it comes to the other stepping on what it thinks of as its own prerogatives.<\/p>\n

Should be interesting to see, though.<\/p>\n","protected":false},"excerpt":{"rendered":"

Back in the Dark Ages, when I was in high school debate, one of the annual topics (my sophomore year, as I recall) was Legal Reform. One of the hot…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_seopress_robots_primary_cat":"","_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[715,9,8],"tags":[],"class_list":["post-7717","post","type-post","status-publish","format-standard","hentry","category-crime-punishment","category-politics-law","category-zt-pc"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack-related-posts":[{"id":49380,"url":"https:\/\/hill-kleerup.org\/blog\/2015\/01\/27\/electing-judges-is-an-awful-idea.html","url_meta":{"origin":7717,"position":0},"title":"Electing judges is an awful idea","author":"***Dave","date":"Tue 27-Jan-15 9:34am","format":false,"excerpt":"Because the law is not a popularity contest. Or shouldn't be.The current arguments before SCOTUS on whether states can restrict judges from directly soliciting campaign funds is illustrative of other reasons why judicial elections are problematic at best. The Supreme Court Ponders Whether Judges Have a Free Speech Right to\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":45983,"url":"https:\/\/hill-kleerup.org\/blog\/2014\/10\/17\/electing-judges-is-a-bad-idea-heres-how-to-make-it-worse.html","url_meta":{"origin":7717,"position":1},"title":"Electing judges is a bad idea. Here's how to make it worse","author":"***Dave","date":"Fri 17-Oct-14 7:31am","format":false,"excerpt":"Electing judges creates an inherent conflict between ruling wisely and impartially and ruling the way The People want you to rule. I don't see how loosening rules about fundraising related to such elections will make that conflict any better. The Supreme Court Is Poised to Make Judicial Elections Even More\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":17090,"url":"https:\/\/hill-kleerup.org\/blog\/2010\/04\/12\/unblogged-bits-for-mon-12-apr-2010-201am.html","url_meta":{"origin":7717,"position":2},"title":"Unblogged Bits for Mon, 12 Apr 2010, 2:01AM","author":"***Dave","date":"Mon 12-Apr-10 12:01am","format":false,"excerpt":"Links (most recent first) that caught my eye, but did not warrant full-blown blog entries .... Will: What conservatives truly want are activist judges. - Conservatives always say folks should defer to the law, until judges disagree with the conservatives. Then they say judges should defer to elected representatives, until\u2026","rel":"","context":"In "Marriage Equality"","block_context":{"text":"Marriage Equality","link":"https:\/\/hill-kleerup.org\/blog\/category\/politics-law\/marriage-equality"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":26548,"url":"https:\/\/hill-kleerup.org\/blog\/2012\/02\/21\/thank-goodness-ronald-reagan-ushered-in-an-era-of-law-and-order.html","url_meta":{"origin":7717,"position":3},"title":"Thank goodness Ronald Reagan ushered in an era of law and order","author":"***Dave","date":"Tue 21-Feb-12 3:43am","format":false,"excerpt":"And privatized prisons and \"three strikes and you're out\" and War on Drugs and ... #ddtbReshared post from +Occupy UniversityOccupy the Industrial Prison ComplexThe statistics don't lie. Just a few years after changing the traditional 'philosophy of business', profiteering off crime became acceptable. Today the US with 5% of the\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":138881,"url":"https:\/\/hill-kleerup.org\/blog\/2019\/05\/25\/the-end-of-marriage-in-alabama-not-really.html","url_meta":{"origin":7717,"position":4},"title":"The End of Marriage in Alabama (not really)","author":"***Dave","date":"Sat 25-May-19 12:43pm","format":false,"excerpt":"Dropping most state marriage paperwork is a good thing for sketchy reasons.","rel":"","context":"In "~Tweets"","block_context":{"text":"~Tweets","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/tweets"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/hill-kleerup.org\/blog\/wp\/wp-content\/uploads\/2011\/06\/wedding-rings2.jpg?resize=350%2C200&ssl=1","width":350,"height":200},"classes":[]},{"id":8069,"url":"https:\/\/hill-kleerup.org\/blog\/2005\/05\/31\/a_talk_or_three.html","url_meta":{"origin":7717,"position":5},"title":"A talk (or three) with Kathleen Sullivan","author":"***Dave","date":"Tue 31-May-05 8:08am","format":false,"excerpt":"Kathleen Sullivan, a law prof at Stanford (and former Dean of the Law School there) gave an hour-long speech\/presentation at the Stanford Sierra Camp about the Supreme Court and current...","rel":"","context":"In "Crime & Punishment"","block_context":{"text":"Crime & Punishment","link":"https:\/\/hill-kleerup.org\/blog\/category\/politics-law\/crime-punishment"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"_links":{"self":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts\/7717","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/comments?post=7717"}],"version-history":[{"count":1,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts\/7717\/revisions"}],"predecessor-version":[{"id":47898,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/posts\/7717\/revisions\/47898"}],"wp:attachment":[{"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/media?parent=7717"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/categories?post=7717"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hill-kleerup.org\/blog\/wp-json\/wp\/v2\/tags?post=7717"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}