Gut instinct and sentencing–a challenge to federal criminal law practitioners

If my gut instinct tells me that someone should be placed on probation even though the Guideline range for that person calls for a long sentence, should I be able to rely upon my gut instinct?  If I shroud my decision in the formal words of 18 U.S.C. § 3553(a) and thus obscure what I am really doing, is that OK?

These are very real and manifestly not idle questions.  See United States v. Cole, No. 11-1513 (8th Cir., August, 6, 2013) and Professor Berman’s blog post of yesterday entitled, Eighth Circuit panel, though requiring more explanation, suggests probation could be reasonable sentence when guideline range was 11-14 years.

For federal criminal law practitioners, I respectfully challenge you to provide me with honest answers to these questions. I really want to know what you think. Tomorrow, I will write about a recent sentencing decision of mine that was entirely based upon instinct. But, I want to know your views first.


37 responses

  1. As an attorney who has practiced in the area of criminal law for over 10 years (as both a prosecutor and a defense attorney), I do believe that having the ability to vary from the Guidelines and sentence based upon gut instinct is a positive thing and should be a right to all judges. When I first started practicing in Federal Court, I was amazed that for all the power bestowed upon the Federal judges they could not sentence outside the Guideline “box”. There were many instances in State Court where Judges sentenced defendants to sentences well below the recommended guidelines without having to profusely explain their reasoning and hide behind some statute such a §3553. In short, being a Judge means you have to pick out those who are bad people from those who are normal people who made bad decisions. Sentencing accordingly, without fear of reprimand, should be part of the job as well.

  2. Thank you. I wonder if the wrench should work both ways. That is, when a judge imposes a sentence that is particularly lenient, we ought to tolerate the judge acting on instinct, but when the judge imposes a sentence that is particularly harsh, we ought to be less tolerant?

    All the best.


  3. As the district court judge in the circuit that varies downward and upward more often than others I do no think a “gut instinct” can replace faithful application of the 3553(a) factors and is the anthesis of faithful applications of these factors, unless, of course, the 3553(a) careful and detailed analysis happens to match the gut instincts. I have never knowingly had that happen. Gut instincts are seldom based on objective information and often arise from implicit biases both favorable and unfavorable to a defendant. For the same reasons I warn jurors not to rely on gut instincts, stereotypes, generalizations, hunches, etc we ought not to either. Just saying.

  4. Mark,

    Thanks for responding. I understand your concern about implicit bias and the problem that gut instinct poses to that concern. The foregoing said, I wonder whether a judge’s belief in what is said by a defendant at allocution is a gut instinct?

    All the best.


  5. As usual you raise a great question. I think a credibility determination about the contents of an allocution not under oath and not subject to the greatest engine for truth ever devised — Wigmore’s famous statement about cross-examination – is different than a gut instinct but only be degree. I hope we can usually ascertain someone’s sincerity – but of course we probably overestimate our ability to do so. But if we truly believe a defendant is sincere and we act on than in sentencing – we may have been fooled and we may be wrong but it was not in my view based on a gut instinct. I mean it’s not like I am betting on the #7 horse because it’s named Run Kopf Run or the jockey has my favorite color purple on.

  6. You should be able to sentence based upon your gut instinct, and there is nothing wrong with shrouding your rationale within the language of the seven factors in 3553(a). Now 18 years into a federal criminal practice, as a prosecutor and now a defense attorney, I have seen many cases where the Guidelines simply didn’t work. Criminal acts are too individualized to be resolved by a formula, which is why a judge should be required to look at the Guidelines only as a starting point. An experienced federal district judge can often tell whether that defendant will be back in the criminal justice system after a sentence. An experienced judge has a good idea whether that defendant will harm society or others in the future. A gut instinct is usually based upon something in that defendant’s history, or something the judge heard during a plea or trial (which is why I believe guilty pleas should be taken by the judge who ultimately sentences the defendant). If trial judges have more discretion to sentence defendants outside the Guidelines, you will likely see much better sentencing advocacy from both the prosecution and defense, giving you more information on which you can base your decision. To answer the question in your reply to the first comment, the wrench turns both ways. The appellate court should be equally tolerant of harsh and lenient sentences. If we trust your gut, we should trust if for either outcome.

    Your blog is a breath of fresh air. Keep it up.


  7. Gut instinct for or against the Defendant cannot be the standard. How can any appellate court properly evaluate such a finding? However, I suspect that the 3553(a) factors would allow for a justifiable departure in such cases where your “gut” leads you to beleive that probation is appropriate. I can only assume that in those circumstances, something about the nature of the offense or the history and/or specific characteristics of the Defendant has led you to that “instinct”. The guidelines are academic and I support greater judicial discretion in fashioning an appropriate sentence for the offender before the court, but a sentence based on “instinct” without a “proper” reason to depart (upward of downward) (or a policy disagreement under Spears) seems contrary to the system in which we operate.

  8. Jim, it’s important to distinguish between “departures” and “varainces” — haven’t you heard that refrain from me before 🙂

  9. Mark,

    First, and foremost, never bet on a horse with a German name.

    Second, I take and agree with your point that experience informs instinct.

    Third, I wonder how much of what we write or say about our sentencing reasons is a post hoc rationalization for an instinctual judgment (based on experience, I suppose) that we arrived at prior to articulating our reasoning.

    All the best.


  10. “Third, I wonder how much of what we write or say about our sentencing reasons is a post hoc rationalization for an instinctual judgment (based on experience, I suppose) that we arrived at prior to articulating our reasoning”

    I assume for most of us — a lot. But for me — on the advice of counsel I take the 5th:)

  11. JDR,

    I find your comment extremely interesting given your background and long experience as both a prosecutor and a defense lawyer. Since I like (desperately need?) taxonomies, I will call your point of view legal realism as compared to legal formalism.

    Thanks for taking the time to write. All the best.


  12. Jim,

    Next time Bennett gives you trouble about “departures” vs “variances” tell him that I always thought we should describe the two sides of the same coin as “departures” and “deviations.” I particularly liked “deviation” because it sounded dirty. Paul Cassell, now a distinguished law professor but then a distinguished district judge, thought “variance” was better because “deviation” sounded too much like “departure.” And that is how the wording really evolved. No kidding, after Booker came down, there was this giant e-mail exchange between a lot of federal judges about Booker and how to describe the difference between a departure and the then unnamed “X” action. As Holmes said, the life of the law is experience.

    All the best.


  13. Good point, Judge Bennett. My mistake. I meant to say variances or “deviations” as indicated. Under Cole, unless the variance can be supported, its coming back for clarification.

  14. I’m not a Federal criminal law practitioner, nor do I play on on radio. But I’ll weigh in, anyway. I firmly believe that a judge should be able to sentence outside the guidelines, whether it be on gut instinct or from a carefully reasoned rationale. I also think that a judge should explain his sentence carefully and in words of one syllable or less, for all the reasons that a court sentences at all: so the miscreant can see the connection between the punishment and his behavior; so that others, for whom the punishment might also serve as deterrence, can be so deterred; and so the public–the court’s employer–can see that justice has been applied (or not) and why it was (or not) in this particular fashion.

    Notice the apparent internal contradiction: gut instinct decisions should be carefully explained. But gut instinct is, in fact, not very different from intuition, and intuition in the hands of a carefully introspective man often is quite accurate. Moreover, having arrived at the answer, it’s generally straightforward to work backward through a line of reasoning that supports the answer. Sometimes that reasoning from the answer is going to be mere rationalization. But usually, in the hands of an actual judge–at the risk of naivete–it’s more akin to true reasoning.

    Sentencing guidelines should be just that–guidelines. Americans–humans generally–every one, is unique (as JDR noted above), and so then, of necessity, are their circumstances and the nature of their misbehavior unique. No body of laws, or of rules, or of guidelines can possibly enumerate all of the possible combinations of circumstance and deed so as to deliver a sentence. All these can do is illuminate principles–indeed, the existence of a range of sentencing in the guidelines demonstrates that limit and the inherent strength of working from principle rather than from rule.

    Withal, a judge must be able to exercise…judgment. More, the judge is the judge, not the lawyers present, and most assuredly not the guidelines or the bureaucrats and others who wrote the guidelines.

    Of course error will occur; a judge is as human as the miscreant standing (or sitting) before him. But the error rate for justice from judges exercising discretion will be far lower than that from blind adherence to “guidelines.”

    Eric Hines

  15. Your analysis regarding incentives seems dead on. Holding all else equal, generally with more discretion, we might expect that judges would be indundated with more information, information not necessarily calculated to address the factors of 18 U.S.C. s. 3553. That being said, the factors seem so broad, I wonder what a judge would take into account or hear that s/he doesn’t factor in through that analysis.

    So let’s address the Judge’s gut instinct. It seems to me that usually this kind of cognitive dissonance will find resolution in how a judge interprets the factors, as some commenters have suggested. Therefore, for the most part, it seems that this discussion may just be highlighting a distinction in what is permissible for sentencing without a difference for practical purposes.

    Honestly, it reminds me of the argument over Frye versus Daubert. In practical terms, no study has ever shown that there is a) more litigation under either standard, b) admissible expert testimony is any more reliable now, or c) that there is any evidence that would have been inadmissible under Frye which is admissible now or vice versa. My hunch is that federal judges have probably always been loathe to permit expert testimony based on screwy science, whatever the test is. For more, please see what I consider a very compelling attempt at a quantitative analysis of the two differing standards by Edward Cheng and Albert Yoon in the Virginia Law Review called “DOES FRYE OR DAUBERT MATTER? A STUDY OF SCIENTIFIC ADMISSIBILITY STANDARDS?”

    To be clear: I don’t mean to impugn the integrity of the federal judiciary in the least, whether it pertains to criminal sentencing or scientific admissibility. I only suggest that the laws, whatever their form, will converge over time to the same just results because discretion will always remain the bedrock of the law’s application.

  16. Oooompf. That’s a tough one. I’m going to plead the “Socratic” Amendment on this one, i.e. “I know nothing.” But it does remind me of the discussion in Furman v. Georgia, 408 U.S. 238 (1972). Justice Marshall’s concurring opinion seems to concur with your ruminative query, and it reads fairly nobly:

    “The Virginia Convention offers some clues as to what the Founding Fathers had in mind in prohibiting cruel and unusual punishments. At one point George Mason advocated the adoption of a Bill of Rights, and Patrick Henry concurred, stating:

    ‘By this Constitution, some of the best barriers of human rights are thrown away. Is there not an additional reason to have a bill of rights? . . . Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence-petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our bill of rights?-‘that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ Are you not, therefore, now calling on those gentlemen who are to compose Congress, to prescribe trials and define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more-you depart from the genius of your country. . . .

    ‘In this business of legislation, your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments. These are prohibited by your declaration of rights. What has distinguished our ancestors?-That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany-of torturing, to extort a confession of the crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone.’

    Henry’s statement indicates that he wished to insure that ‘relentless severity’ would be prohibited by the Constitution. Other expressions with respect to the proposed Eighth Amendment by Members of the First Congress indicate that they shared Henry’s view of the need for and purpose of the Cruel and Unusual Punishments Clause. Thus, the history of the clause clearly establishes that it was intended to prohibit cruel punishments. We must now turn to the case law to discover the manner in which courts have given meaning to the term ‘cruel.’”

    If American criminal justice is more concerned with guarding against ‘relentless severity’ than its opposite, you may have concisely summed up a guiding principle for other jurists and legislators.

  17. Demosthenes,

    Very interesting analogy to Daubert v Frye debate. For my part, as an empirical matter, I never thought Daubert changed what was actually going on in the real world. Both Daubert and Frye are pretty simple: the offering party must lay a rational foundation (basis) for the expert’s conclusion.

    The question of gut instinct is I think different because the answer to the question has significant consequences. If judges believe cold reason is driving their sentencing decisions, but they are actually acting on instinct but don’t realize it, is that a good or bad thing? If gut instinct is not to be tolerated as a legitimate basis for a particular sentence, are judges likely to act on instinct anyway but phony up things by constructing after-the-fact rationalizations? If we want judicial discretion, are we really saying we accept instinctual rather than rationalized judgments? If we accept instinctual judgments, what is the appropriate standard of review? Indeed, are such judgments capable of review?

    All the best.


  18. First, thank you for this blog which is both thoughtful and thought provoking. I have been a criminal defense attorney for 28 years, most of that time in my state court but I came to federal criminal practice sometime between Blakely and Booker. In my state system–where we have very few mandatory minimum sentences, no rules as to when sentences for multiple counts should be concurrent or consecutive and no guidelines–sentencing is largely left to judicial discretion. By and large, that discretion is not abused and, despite the occasional lapse (which I suppose matters to the defendant and victim), there has been no outcry to change things here. So, coming to federal practice just as the straight jacket of the mandatory Guidelines was loosening, I’ve thought these issues through.
    The problem, as I see it, is the age old one of rules versus standards. Standards–i.e. the 3553(a)–differ greatly from “gut instinct.” Standards allow the judge to give appropriate weight to idiosyncratic sentencing facts. Judges, however, can abuse the vagueness inherent in standards and impose sentences according to their own view of what should be public policy. That’s the problem with standards.
    Rules–i.e. the guidelines–stop or at least limit judicial wandering, but they fetishize sentencing facts that should in some cases have little weight. I represented a “career offender” who had several minor state court “misdemeanors,” from a nearby jurisdiction where such offenses were theoretically punishable by more than one year, that were for federal sentencing purposes violent felonies–this made a 5+ year difference in his guideline sentence even though nobody in his right mind would think that they deserved such weight under 3553(a), and in fact he received a lower and fairer sentence. Other factors–drug weight and amount of loss–are also, in my opinion, fetishized by the Guidelines.
    My bottom line is that I think standards are better then rules if we trust the judges who administer them. If we don’t trust the judges we appoint, then we have bigger problems.
    There is a second issue at work under the surface as well. There is a tension between making the punishment fit the crime and making the sentencing fit the offender. This tension is not apparent in 3553(a), but it is very apparent some of the Guidelines provisions. The greater the focus on the offender, the greater the need for an individualized, multi-factorial balancing that is not easily reduced to a grid.

  19. Pingback: Shon Hopwood and Kopf’s terrible sentencing instincts « Hercules and the umpire.

  20. Andy,

    You are a mind reader!

    I recently gave a guy a “break” as a career offender (varied “down” to 16 years) because I was so impressed with his insights expressed during allocution. First time ever, really, that I allowed my instinct to take over because of allocution. As my post today explains, I don’t (and shouldn’t) trust my gut very often. It remains to be seen whether my career offender decision will come back to bite me in the ass.

    Thanks so much for sharing your 28 years of experience. I truly appreciate it.

    All the best.


  21. RGK,

    I more often than not make an adjustment to the sentencing range I am thinking of – often outside the guideline range based on a defendant’s allocution. I do not thin of this as “instinct’ but gaging to the best of my ability whether something in the allocution appropriately fits into the 3553(a) balance which we are constitutionally required to engage in otherwise the Guidelines become de facto mandatory and violate the U.. Constitution. While I may be delusional I like to consider the allocution not as an “instinct” but in the context of a credibility determination often relating to the nature and circumstances of the offense and history and characteristics of the defendants and the purposes of sentencing – the primary 3553(a) factors that allocutions touch on. then I balance all of that with the other 3553(a) factors including the properly calculated Guidelines. Have you looked at the opinions disagreeing with th Career Offender Guidelines on policy grounds, may judges find these guidelines are largely smoke and mirriors and not based on emperical evidence – indeed the emperical evidence does not support the degree of harshness of the Career Offender Guideline…and 16 years is still a heck o a sentence and I am sure the defenant deserved a lengthy one but he got one !!!!

  22. Mark,

    Good point on the career offender Guidelines. Perhaps the near universal contempt for them was lurking in the recesses of my fragile little mind when I decided to go rouge.

    All the best.


  23. Pingback: Modern Criminal Justice, Part I: Hercules, the umpire, and Shon | Attorneys at Blah

  24. Dear Judge Kopf,
    I greatly appreciate your blog and dry insight on the world of federal law – especially federal criminal law. Openness from a practicing district judge is much appreciated. As you know, district court judges are loathe to be frank. I come to this post having served as a law clerk to both a federal district court and court of appeals judge. I am also currently a federal prosecutor.

    Whatever one might think of the squishiness of the 3553(a) factors and the now-advisory Guidelines, they serve as a starting point for the court. In this era of discretion, judges who blindly favor the guidelines without considering the discretion they have been granted under Booker are doing a disservice to the sentencing process. At the same token, the same is no less true for those judges who blithely disregard the Guidelines – no matter how dressed up their disagreement might be when couched in terms of “policy disagreements” and “lack of empirical support.” With that as my starting point, you can see I value the Guidelines and their continued importance as a 3553(a) factor. But more than the Guidelines themselves, 3553(a) notes that the Guidelines’ policy statements are also to be considered by district courts. All too often, especially in the white-collar context or other certain “disfavored” federal crimes, not only are Guidelines ignore, but so too are the policy statements. As for the other 3553(a) factors, they all seem – at least to me – things that a sentencing judge should consider even if they were not mandated by Congress – things that should otherwise inform “your gut instinct.” The nature and circumstances of the offense; the history and characteristics of the defendant, etc. are all inarguably relevant considerations. My concern is that most people’s gut instincts are made up quickly, with limited information and focus almost exclusively on the defendant – is he a “bad guy”? People’s gut instincts are too often wrong. (How many times have you met someone and thought ‘what a great guy!’ only to learn later that he was a complete ass?) Sentencing should encompass much more than that – and by statute, thankfully it does.

    But in the end, the problem isn’t one of shrouding your gut instinct; the problem is that judges frequently do not carefully analyze and discuss the 3553(a) factors. Too often they go through them robotically, in rote fashion without considering how they balance out in the end in terms of an appropriate disposition.

    On an institutional level, district court judges owe it to both defendants and federal prosecutors to faithfully analyze the 3553(a) factors. That is the only way that the parties can have some sense as to whether the judge is performing his/her role in the manner that Congress intended. That is how the parties will present their arguments. Those are, for the lack of a better description, the “rules of the game.” And the judge does nobody any favors by not playing by the same rules as everyone else. No doubt you may finish a trial or take a guilty plea with a pre-conceived notion of what the “right” sentence – what your gut tells you – but that is extraordinarily unfair to the sentencing process. What is also extraordinarily unfair to litigants is that judges often don’t tell them what could “help” them with sentencing – do they prefer legal memoranda, argument, witnesses, etc. As litigants we struggle to shape a judge’s views when we have little idea what they want. Judges also need to be honest about their biases toward certain crimes or individuals (I don’t mean racial or gender or anything else unconstitutional – more along the lines of certain “types” of criminals.) But litigants often learn that after the fact; after sentencing. They also have to be fair about letting the parties make a record. We are often told that judges struggle with sentencing, that it is the most difficult part of their jobs, etc., but at the same time chastise (maybe too harsh a word) the parties when they want to tell their story – and make their record.

    Finally, and maybe I am wrong here, but your post seems to be premised on the idea that the judge must impose the “right” sentence. We can’t really ever know what is ever the “right” sentence. It is – in the best cases – an educated guess that reflects society’s views (however broad or narrow we might define them) – and the views of the judge. But the question of whether a sentence is “right” is a question of degree. We sometimes ask did the judge give the “right” sentence. The better question is whether the judge’s sentence is in the ballpark of what we instinctively feel is “about right” for a given case – given everything we know about the defendant’s crimes, the defendant himself, congressional directives, the Guideline, etc. Some cases are easier – the violent criminal who is terrorizing people and has terrorized people for many decades – handing out a stiff punished – 15, 20, 25 years is easier to do, easier to justify – who you are protecting is tangible. Other cases, as you know, are much harder – like the fraud cases involving a first time offender.

    Apologies for going a bit long.

    The Bear

  25. Bear,

    No apology is necessary. Your comment perfectly lays out what a rational sentencing judge should do. Here are a few specific responses to your thoughtful views.

    *My post was intended to get at the question of what judges really do as opposed to what a rational judge should do. I agree with you that no sentence can ever be perfectly “right” particularly when the sentencing statute uses words like “not greater than necessary” and “just punishment” to describe the proper punishment.

    *Without getting too whiggy (actually, any more whiggy than I normally am), I am beginning to think that what really motivates judges to impose particular sentences is far less rational and far more personality driven than any of us realize. If that is true, the need for a strict rule regimen with very little discretion may be required to honestly achieve the goals of sentencing whatever those goals may be.

    *Speaking of goals, section 3553(a) sets out a series of goals that are frequently contradictory. For example, why should I give a damn about the personal characteristics of the defendant if my goal is general (as opposed to specific) deterrence? Indeed, the introduction to the Guidelines Manual suggests that the drafters of the Guidelines were unable to settle on what the particular purposes of sentencing were and so they threw in the kitchen sink.

    I am particularly glad to hear from a prosecutor and even more so from one with an intimate knowledge of the district courts and appellate courts derived from your service as a law clerk. I really appreciate your taking the time to write. Thanks.

    All the best.


  26. The Supreme Court held in Tapia v. United States, 131 S.Ct. 2382, 2393 (2011), that a sentencing court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” In United States v. Olson, 667 F.3d 958, 961-63(8th Cir. 2012), Olson had been sentenced before the Supreme Court decided Tapia. The Eighth Circuit remanded the case because it was “not clear from the record whether or not the district court impermissibly based its prison sentence on Olson’s ‘rehabilitative needs.'”

    I admit that I don’t understand the holding in Tapia. I assumed that one of the purposes of sentencing, as set out in 3553(a), was to achieve rehabilitation. However, it now appears that district courts cannot base a sentence on the defendant’s rehabilitative needs. Perhaps the federal sentencing judges have found a way to sentence defendants while considering, but apparently not mentioning, rehabilitation. Elaine Mittleman

  27. Elaine,

    Short answer: The word does not appear in the statute (3553(a)). Moreover, the relevant statutory language is as follows:
    The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation. 18 U.S.C. § 3582(a) (emphasis added).

    A lot of bad things have been done in the name of rehabilitation. It was also thought to be dangerous and impossible. Think of the film A Clockwork Orange.

    All the best.


  28. I appreciate your explanation. Some courts seem to be using the term rehabilitation. The Olson court described achieving rehabilitation as the fourth purpose of sentencing listed in 3553(a)(2)(D). However, 3553(a)(2)(D) refers to “needed educational or vocational training, medical care, or other correctional treatment.” Perhaps it is better to discuss drug treatment programs or other similar measures rather than using the vague term, “rehabilitation.” The broader point seems to be that the sentence should not be imposed to promote correction and rehabilitation. Elaine Mittleman

  29. As a Mitigation Specialist, I have always thought that sentencing would be a fairer process if the judicial officer could sit down with the defendant over a cup of coffee for just five minutes and interact on human-to-human level with attorneys allowed to watch put not speak for the defendant. Allocution is not the way people connect to each other – conversation is. No judge, I believe, should ever feel that allocution gives them enough to rely on their gut to make the most important decision in the process.

  30. As an AFPD in the 8th cir for almost 35 years I have some perspective but admit that I really don’t have a confident answer to the question of how to sentence people and admit that its far more comfortable to advocate a less harsh penalty than to actually be responsible for deciding. I do have some observations. While “gut instincts” may work great in some Judges-say Judge Davis not only in the Cole case but generally – I have seem far too many for whom the gut is a harsh and merciless result. For some Judges time and experience led to great improvement in their ability and willingness to be merciful while for others beyond a certain randomness nothing seemed to improve. As others have observed the 3553 factors contain inherent contradictions and there remains no body of law or scholarship quantifying for sentencing things like family, children, community service,goverment,efficacy of imprisonment on the purposes of sentencing and the million other facts that make up the life of the person being sentenced.

  31. Your honor–I just stumbled across your Blog for the first time–and deeply appreciate the fact that you are doing it. I am a federal prosecutor who has been doing street gang work in a major city for the last 12 years and struggle with the question you have asked because it is equally applicable to the recommendations we make to the bench every day.

    I guess my first reaction is to question the premise of your question. Your “gut” is not something that can’t really be separated from your experience at the bar and on the bench or the information you have gathered in a particular case from the PSR and the arguments and memoranda of counsel. Your gut is the product of experience and judgment and the time you have spent on the case. I suspect that if you really probed the basis for a sentencing decision, there would be a lot more than a snap decision based on instinct. Your experience and judgment is what they pay you for. So keep relying on it. And if the look on a defendant’s face or what he says or the appearance and presence of his family causes you to move one way or another on the day of sentening, do it.

    Having said that, I think the parties (and particularly the defendant who is going to be thinking about what you say at the sentencing for a long time) deserve an explanation of what caused you to go in a certain direction. I am particularly irked by judges who, even post-Booker, apologize for the sentences they give (too low, too high, doesn’t matter. Imagine walking out of the courtroom after having received a 5 or 10 or 15 year sentence with the judge’s sense that the system is unfair and that he thinks the sentence is not the right one ringing in your head. Absent a mandatory minimum, there is no longer any reason for that. And even where a mandatory minimum applies, we all take an oath to uphold the law. The are forums to disagree with Congress (and judges should disagree), but I respectfully think that a sentencing hearing is not one of them.

    I hope that you will remember the cases that you gave someone the benefit of the doubt (or didn’t) beyond the day the JofC goes out. When people get out and commit more crime or do well on Supervised Release, both of you need to remember the day of the sentencing. You, so it is one more piece of experience that goes into the memory bank. The defendant, so he is reminded that there really will be a correlation between what he says or does and what happens to him.

    I struggle in every case trying to come up with a recommendation that is the right one. I am able to get all of the Incident reports from our local PD, look at FIO’s to see where the defendant is hanging out with and often invite defense counsel to give me ideas about special conditions that they think will help the defendant when he gets out. I have invited family members to speak with me before a sentencing (hasn’t worked real well) and often talk to past probation officers and Youth counselors trying to learn as much as I can. And I am still haunted by nagging doubts as to whether I got it right.

    You are on that bench to make the best judgment you can in every case. So keep listening to your gut because in doing so, you are really just exercising the judgment and experience that put you where you are in the first place.

  32. Dear John,

    Although I am not a religious person, you are doing “God’s work.” Street gang work has a real impact, but you deal with some very nasty and brutish people. For what it is worth I have long been a strong supporter of the Guidelines writ large, and I have been very critical of the Supreme Court’s incoherent sentencing jurisprudence. As for apologies at sentencing, I have done that but very infrequently. In fact, my sentencing explanations tend to be cold and short.

    As for my gut, that is where the Sentencing Guidelines are helpful to me. More or less, the Guidelines at least tell me what Congress wants. In a democratic society, that is very important for judges who are not elected and who have life time appointments to hear and, if reasonable, implement. Otherwise, it is very hard to rationalize the role of judges in a government of our type.

    Thanks so much for your comment. Keep up the good work.

    All the best.


  33. …more than five years — especially for a non-violent crime is nonsense… plus, isn’t diverting from the “max vs min” the reason for mitigating evidence. If the so-called “guidelines – MAKE you stay within a box, then they are not guidelines to begin with. Go with your gut, Judge. You didn’t get where you got by being in a box to begin with.

  34. Carolynn,

    Thanks for your comment. You have more faith in my gut than I do. That said, with Judge Bennett’s recent opinion which you can access here, you may be entirely right. It may be time to jettison the whole concept of Guidelines sentencing and go back to the “good old days” when judges used mostly their gut. Incidentally, I was around then. It was not all good. A lot of young men did long prison sentences for refusing the draft because a lot of old men (now like me) were pissed off that these young men told their government to “fuck off” when it came to Vietnam.

    All the best.


  35. This touches on the fundamental quality of a society.

    It would be interesting to compare across to countries that have less and more crime per capita, and what sentencing rubrics are there.

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