Twenty-seven people were sitting around a large oblong conference table: an unusual law school class with 8 trial judges and 13 students. The teaching “team” included the Minnesota public defender, a well-known local “corrections” consultant, and a former prosecutor now in private practice.
Each participant had received all the available information (excluding the actual sentence) for defendants sentenced by each of the judges and had prepared sentences of their own, along with an “opinion” explaining them. A 169-page package with a summary of the participant sentences and accompanying memoranda had then been circulated. At the table that morning, then, all participants were fairly familiar with each case and with every other participant’s sentences and reasoning.
The participants had met five weeks earlier and discussed a separate group of cases. The first weekend, like this one, began on Thursday evening with dinner, lasted until Sunday morning, and included almost constant social and intellectual interchange. In short, each participant had already learned a considerable amount about the others’ backgrounds, experience, and attitudes about sentencing and corrections.
I expected that the Crocker case,2 from South Carolina, would stimulate controversy. The 30-year-old defendant had pleaded guilty to four counts of burglary.3 The defendant’s house break-ins were, to say the least, unusual—they appeared to have been committed to permit him to fondle the feet of inhabitants while they slept. Because of this behavior, Crocker was quickly shifted to the forensic unit of the state hospital.4 He was found to be sane but suffering from “major depression with psychotic features,” an “obsessive compulsive disorder and paraphilia . . . and sexual sadism.” He presented “evidence of recurrent obsessions about negative events happening to his family members,” neutralized by “spitting in his bed at nighttime repeatedly,” “a sexual preoccupation with feet,” and “other sexual fantasies that are more sadistic in nature.”5 While hospitalized for an appendectomy, Crocker had been discovered in the hospital morgue feeling the feet of a corpse. During his state hospital stay, Crocker’s depression as well as his psychosis improved but, “despite high doses of appropriate medications,” the obsessive-compulsive disorder did not improve. The doctors concluded that Crocker required specialized treatment for his sexual sadism—treatment available only at a private hospital in Atlanta; they also told the trial judge that if the defendant “did not receive treatment he would either be killed, commit suicide, or kill someone”—but that the cure rate “would be about eighty-five percent, if he completed his counseling.”
The Workshop participants varied greatly in their sentences of Crocker. All but one of the judges chose incarceration, varying from an unspecified period to 35 years. The student sentences were as varied: One student recommended a form of fine; incarcerative sentences ranged from 1 to 10 years.
Workshop discussions usually began by resolving factual ambiguities. In this case, the sentencing judge thought that the Georgia treatment facility was not a realistic alternative, even though the defendant’s family had agreed to pay its cost, because no post-hospitalization control of the defendant could have been maintained; but he admitted that the defendant’s sentence could have been suspended until the end of the hospital’s treatment. The former prosecutor suggested that sending this defendant to prison was in fact a death sentence; the sentencing judge then disclosed, to the surprise of many participants, that he had sentenced Crocker to 16 years in prison.
We spoke no more about the Crocker case—but we learned many and varied lessons that day—lessons about criminals and their pasts and futures, about judges and their values and methods, about law and life. The sentencing judge’s attitude was unclear to me: Was he pleased with himself for imposing under-the-table capital punishment? Was he uncomfortable with the need to fulfill his civic responsibility at such awful personal cost to a hapless criminal? The dramatic quality of the case, the emotional intensity of the discussion, led some of us irresistibly to such personal questions—and others to more abstract professional introspection. I won’t try to recount other lessons; rather, I will focus on the Workshop’s methods of inducing and facilitating them.
I cannot do justice to the Minnesota Sentencing Workshop without pausing to outline the desperately serious social and legal problem that drives it—our impoverished correctional system and its overcrowded prisons. There is ample statistical evidence for the rising prison population, the overwhelming use of drug offenses to incarcerate a disproportionate number of minorities, and the distressing and costly conditions in which prisoners live, all despite stable or falling crime rates. American sentences are out of all proportion to sentences for similar crimes in the countries in Western Europe to which we normally make quality-of-life comparisons.6 And there is much, much more that is wrong with our current approach.7 By almost any measure, American incarceration policies unduly strain our financial and human resources and may well be placing too heavy a burden on us and on the next generation.8
At dinner during an initial session of our Workshop, a judge, a stern sentencer, and apparently a little skeptical about the discussions, asked me quizzically: “What’s the ‘real’ agenda here?”9 “Whose agenda?” I responded. “The Edna McConnell Clark Foundation’s, the law school’s, or mine?” The Foundation wants influential judges to understand the costs and dangers of overcrowded prisons and the virtues of what are often described as alternative punishments and hopes the judges will be influenced to make greater use of nonincarcerative sentences and will persuade their colleagues and communities that prisons are precious correctional resources to be used only where necessary but certainly less frequently than they are currently being used. The law school’s agenda is quite different. It is in the business of educating law students.
With financial help from the Foundation, the law school believes that students will learn more about criminal law from the Workshop than we could squeeze into courses with more credit hours; and students also will be educated about judging, about relations between lawyers and judges, and about professionalism. My agenda is even broader than the law school’s: In addition to educating law students, I want judges to have leisure from the time constraints of their dockets, from the pressures put on them by prosecutors, defense counsel, and reporters; I want to help them to explore their sentencing methods and, with the aid of their colleagues, to decide whether they are satisfied or might want to consider changes.
The judges already knew that I believe our prisons and the lengthy sentences imposed by judges are a national disgrace, that the extreme length of too many criminal sentences can be explained more by politics than by sound policy, and that overcrowded prisons and extremely lengthy sentences inhibit the creation and substantial use of alternatives to prison for punishing criminal behavior.10 Sentencing guidelines can increase uniformity and limit to some extent excessive imprisonment, but we must find a way to ensure that sanctions will always be “the least restrictive necessary to achieve their purposes.”11 Sentencing judges should distinguish professional criminals from those who, although they commit crimes, even violent crimes, do so for reasons like hunger, poverty, mental illness, brain dysfunction or other disability, ignorance, or a craving for drugs or alcohol. I hoped that the judge knew—I was sure he would eventually conclude—that I would never try to impose what some would consider these radical views on other participants in the Workshop.
After a first semester in a fairly traditional sentencing seminar, the students in the Workshop understood most current sentencing schemes as well as the national crisis caused by our incarceration policies. To begin the Workshop itself, each judge selected to participate by state officials sent file materials on six cases they found difficult to sentence. In the first session, these cases generally showed the students that, however critical they may be of the judges, in particular cases and classes of cases the students injected their personal values into the sentence just as much as they believe judges do. In fact, the students usually sentenced defendants accused of rape, sexual abuse of children, and vehicular homicide much more harshly than they sentenced defendants accused of other violent crimes and much more harshly than the judges sentenced these same defendants. The second session discussed participants’ sentences of a new set of defendants.12
The third session presented at least one current case in which an unsentenced defendant seemed slated for a prison term. A “client-specific planner,” hired to investigate the case and correctional resources in the community, prepared a report recommending some kind of punishment. Client-specific planners, specially trained and highly skilled criminal corrections experts, prepare presentence investigation reports that are essentially oriented to the defendant’s individual background and personal qualities and to ways to punish without incarceration. Participants received files of these cases and sentenced the defendants first without, and then in light of, the client-specific plan. The client-specific planner attended the final session.13
The formal sessions of the Workshop were fun. We discussed the cases and the individual defendants, just sentencing principles and how they should be applied, community understanding and acceptance of judges’ roles, prosecutorial discretion and its impact on judges, and judicial authority and its impact on prosecutors. The discussions informed the participants about varying approaches to these issues from state to state. Occasionally, judges learned for the first time about correctional resources available in their own states.14 The judges were bombarded with interesting and challenging nonincarcerative sentencing options for their cases—from home confinement and day fines to a variety of other forms of supervision.15
But the discussions went deeper. The Workshops often included judges who had personally led local initiatives to treat addicted defendants, judges who were aware that personal values inevitably have an impact but that objectivity and decency in sentencing must be sought and can be achieved. The discussions created an atmosphere of collegial inquiry, of shared purpose, of joint responsibility—for the issues and for each participant. The formal sessions and collective meals fomented a kind of social and intellectual camaraderie and friendship. Inevitably, students shared with the judges aspects of their professional and personal lives, and the judges (perhaps in a more guarded fashion) reciprocated.
In such an intimate setting, free of the hierarchical atmosphere of the courtroom and the courthouse, professional exchange can be seasoned with personal disclosure. During a discussion of mandatory minimum sentences for drug offenders, for example, a student announced that her sister was about to be released from a state prison at the end of a five-year sentence for dealing drugs. And one student who insisted that prisoners know about and adapt their behavior to state sentencing grids and policies was sure of his facts because he had twice served prison sentences in Minnesota before being scared straight in a Georgia lock-up waiting for another sentence. On these occasions, when the usually unmentioned personal worlds of Workshop participants overtly intruded upon our discussions, the large role of sentencers’ backgrounds and values in their sentences became obvious. The judges found it difficult to avoid feeling a kind of avuncular responsibility for the students’ education and long-term professional development. Thus, the social relationships the Workshop develops were vital to their method and their success.
But intimacy and free exchange are only the conditions precedent for the kind of education the Sentencing Workshop sought. Vital judicial belief systems must be confronted. I have come to believe that, as sentencers, judges develop a set of myths that provide cover for their professional selves. To facilitate reconsideration of their sentencing behaviors, judges have to be encouraged, even coaxed, to articulate the myths and to free themselves from their power.
- Myth: There is judicial unanimity about how to sentence defendants for particular crimes. Awareness of their fundamental correctional policy disagreements comes as a surprise and a disappointment to many of the judges. They were always noticeably relieved when their sentences were the same or similar to those of other judges. The atmosphere of the Workshop helped judges acknowledge the very diverse sentencing world in which they operate—an essential first step toward voluntarily setting aside their other professional defenses.16
- Myth: Only a prison sentence qualifies as punishment; probation, no matter what its nature or concomitants, does not. Although usually shared by the public, the Workshop sessions spent considerable time discussing and trying to dispel this myth. The fact that discussions focused so intensely on each defendant compelled the judges to think about defendants as individuals whose punishments demand careful and individualized consideration, no matter how far the offense strayed from community norms. The more a sentencer knows about a defendant, the more difficult it becomes to impose any punishment—especially an unthinking one to years in prison. In addition, the judges heard a variety of serious proposals for punishment, many limited to significant nonincarcerative sanctions. That otherwise reasonable people, experts as well as inexperienced students, sincerely believe that an intermediate punishment can both effectively and justly replace an incarcerative one in a specific case does much to legitimate such punishments. This dynamic influenced sentencers during each of the Workshop sessions, helping to dispel the myth that only prison produces punishment.17
- Myth: Judges have no power. To deal with the pain of depriving men and women of their freedom, sometimes their lives, some judges insisted that theirs is a world of slot machine criminal justice—pull the lever marked with the crime charged and the sentence will shortly appear in the window. Judges often insisted that the only key players in sentencing are the prosecutors and the legislature. In sentencing, they claimed, their personal warrant is nonexistent, their discretion minimal—until they are confronted with indisputable evidence of a more complex reality.
During a session in one of the early Workshops, for example, a South Carolina judge described a 34-year-old high school graduate, a single mother with two young children and a minor and inconsequential prior criminal record, charged with conspiracy and distribution of crack cocaine, as “obviously an addict, living on welfare and social security income.” According to the judge’s description of the case,18 conspiracy carried a five-year penalty; distribution of crack had just been amended to remove the mandatory aspect of a 15-year sentence and $25,000 fine. The judge claimed that “the amendment still left a prohibition against suspending any portion of the sentence imposed” and “effectively eliminated the possibility of probation on these charges.” The prosecutor dropped the conspiracy charge in exchange for a plea to crack distribution. The pre-sentencing investigation recommended probation with drug abuse treatment and intensive supervision. The judge, who clearly did not want to imprison this defendant, tried to have the defendant placed in a treatment facility but discovered that the beds were limited to males. The judge then deferred sentencing until he was to return to the county five months later. By then the defendant “had gotten drug treatment and appeared to be dramatically improved.” The prosecutor refused to reduce the charge to distribution of powder cocaine so that the judge could impose a probationary sentence. Nevertheless, the judge reported that he had sentenced the defendant to only the two days she had served awaiting bail after her arrest.19
Yet, in the discussion of the case two hours later, this judge could not see that he had successfully nullified the prosecutor’s sentencing recommendation and that this would undoubtedly have an influence on the prosecutor’s cooperation with the judge in future prosecutions. Nor did the other judges appear to appreciate how the judge-prosecutor power balance had been rearranged. Clearly there is emotional safety in assumed powerlessness—and it takes time and patience, diplomatic student and faculty persistence, and the right atmosphere to break through.20 But when the personal and emotional style of the Workshop helped judges to forgo such safety nets, they could, and did, reexamine their community obligations as sentencers from a very different and more sophisticated perspective.
- Myth: Sentences are based upon a coherent and articulable sentencing philosophy. After some initial collegial loyalty during the first Workshop session, the judges began to disagree with each other, even criticizing openly. They rapidly grasped the students’ sentencing predilections and questioned them as to their motives and purposes. The students, initially intimidated, learned to reciprocate.
- During one first session, for example, a Philadelphia judge who gave a lengthy sentence to a defendant with several priors explained, “I don’t believe in second chances.” He awarded probation and every possible break to first offenders, he said, but if they appeared before him again, on a new charge or a probation violation, he insisted on the maximum. However, the second session’s cases included his sentence of a 40-year-old, smooth, calculating, articulate, and very-well-dressed professional bank robber. An addict, the defendant had a long string of priors but no lengthy sentence because he employed notes to tellers rather than a gun and was able, when apprehended, to blame confederates. Before the sentencing hearing, the defendant had signed up for an in-patient and respected drug treatment program. The judge granted him probation on condition that he enter the treatment program and waived revocation of probation on the priors. The students’ affectionate description of the judge thereafter as “One Chance Charlie” served as a continuing reminder to him and the other judges that sentences can be based upon covert, personal idiosyncrasies.21
The prejudices of judges emerge because of the dynamics of the group. The process is stimulated by the facts of the difficult cases, by the judges’ sentences, and by the judges’ reactions to the sentences of other participants. The ordering of cases within and between sessions also affects the chemistry. The first session in the Workshop’s initial year, for example, began with a second-degree murder case from Missouri that disrupted the students’ as well as the judges’ comforting platitudes about incarceration for violent crime. The defendant was a 15-year-old African-American boy, five feet seven inches tall and weighing 125 pounds, “mildly mentally retarded,” and attending classes in the ninth grade. Three older friends and the defendant decided to steal the purse of a woman coming out of a diner with her husband. After the woman entered her car, one of the boys threw a brick through the window, and the defendant grabbed her purse. Tragically, the brick sent slivers of glass into the woman’s carotid artery, killing her. The boys split $20. The defendant was charged as an adult and pled guilty to second-degree murder. The prosecutor recommended a minimum 15-year sentence, leaving to the judge the choice between incarceration and probation. The defendant had been in jail for more than nine months when he was sentenced. Psychological tests conducted for the juvenile court transfer proceeding reported:
[The] defendant displayed . . . visual motor skills . . . equivalent to an average child aged 10 years and 2 months. Results of personality testing indicated that “[defendant] is a rather sad and lonely youth who has difficulty performing adequate emotional attachments with other people. . . .”
Refusing to grant probation, the judge spoke at length at the penalty hearing, the transcript of which became part of the Workshop casebook. He commented:
. . . I know you don’t pick your mistakes, but . . . the mistake you made is you took another human being and you were involved in causing the death of that lady.
And, you know, I just can’t get past that. And I really have tried and I’ve come up with fifteen different ways of trying to get this, you know, to make this easier to swallow, but it’s not any easier to swallow for me. . . . These kinds of cases just make me hate my job at times. I hate this. . . .
If I put you on probation, I’d feel terrible. If I put you in jail, I’d feel terrible, and there’s nothing in between. And . . . there’s nothing I can do here today to make me feel good.
The emotional quandary the case posed for a sentencer, the judge’s openness about how difficult it was for him to make what he saw as a Hobson’s choice, and the resonance of this sentencing dilemma for the other judges set a tone for the group’s discussions; the judges were compelled to confront rather than ignore the choices they make when sentencing. It was very difficult thereafter for these judges to blind themselves to their awesome responsibility, to the power over other people’s lives that responsibility authorizes, or to the personal values they inevitably bring to the sentencing endeavor.
The second case that first year involved a 22-year-old woman addicted to cocaine at a cost to her of about $1,100 a week. She had managed to become a payroll clerk, responsible for a monthly payroll of more than $400,000, although she had completed only ninth grade, and she embezzled over $100,000 to feed her drug habit. By the time of sentencing she had successfully completed a drug treatment program, held a steady job, and was engaged to be married. Insurance had covered more than half the company’s loss, and many neighbors and friends had written letters to the judge on her behalf.22 The judge sentenced her to seven years in prison—and denied her the advantage of an unusual Missouri statutory “shock probation” statute that would have allowed her to be granted parole after 120 days. The discussion, inevitably, was challenging and lacking in consensus. Most important, the sentencing judge could not ignore the variety and contrariety of opinion—whether or not he allowed it to affect him.23
During the second session, the same judge was again the center of attention—this time for his sentence of three boys from a St. Louis suburb, who, just before graduating high school, set fire to an animal hospital whose owner had fired one of them. The fire killed three dogs and caused $325,000 in insured damage to the building. The defendants pleaded guilty to arson and burglary. Maximum sentences for the offenses charged added up to 38 years.24 Sentencing was postponed at the insistence of defense lawyers until the boys had graduated from high school, participated in a church-sponsored camp for poor children, and matriculated at branches of the University of Missouri. The sentencing judge proclaimed that “young black kids from [the ghetto] who have no mother, no father, nobody that comes into this courtroom for them but they haven’t done anything that approaches the meanness of this,” nonetheless, he suspended imposition of the sentence for five years so that the defendants, if successful on probation, would have no criminal record. The sentence was conditioned on service of 60 days in county jail (but only on weekends during the summer), employment of 30 hours a week during summers, a B average in college schoolwork, graduation within four-and-a-half years, avoidance of bars and liquor and beer, a 10 o’clock curfew, and, finally, 200 hours of community service at a local animal shelter.
Was the young embezzler’s sentence fair? Or the arsonists’?25 Are the sentences consistent with each other under one or more of the (not necessarily consistent) theories justifying criminal punishment? I suspect I could foment a lively argument about such questions in any audience. In the collegial but confrontive atmosphere of the Workshop, students, faculty, and the judge’s colleagues were empowered to ask them—and they were entitled to reject what they believed to be superficial answers. The judge could, of course, have refused to reexamine his sentences or the moral and social policies underlying them—but there was no ignoring the choice.26 From such individual lessons, delivered in a nonpunitive atmosphere where all participants have agreed to learn from each other, delivered in respectful and ego-enhancing fashion by one or more persons whose judgment participants have come to respect, the judges can perceive and adopt new perspectives on their sentencing responsibilities.
This effort to describe the Workshop’s change-generating methods may unintentionally have failed to give enough credit to individual judicial participants. Each Workshop included judges who personally led local initiatives to treat addicted defendants, judges who were aware that personal values inevitably have an impact but that objectivity and decency in sentencing must be sought and can be achieved. On one occasion, for example, a former juvenile court judge held forth at some length and with discomforting vehemence that a 22-year-old addicted mother should have had her parental rights to her other children terminated because she failed to obtain medical help for a six-month-old daughter who had been severely beaten by her boyfriend. One of the other judges commented, “Whenever I suspect that I’m angry, I go home and put off sentencing for another day.” The sermon was quiet, somewhat oblique, and assigned neither blame nor shame; it was difficult to ignore but easy to follow.
To summarize: The Sentencing Workshop sought to educate law students about sentencing and judging. Simultaneously, it sought to give trial judges an opportunity to explore their sentencing practices and policies. They examined collectively their own cases, in great detail, under circumstances where the underlying personal and emotional issues were sure to emerge. The surroundings were intimate, where the judges could be honest with each other; and where they knew that whatever criticism their sentences attracted it was intended to be constructive. The criticism came from their peers, from a faculty they had come to trust as helpful, and from inexperienced students whose innocence excused their direct and bold style. Finally, the learning was personal, very emotional, and anecdotal as well as intellectual, and could be undertaken without undue or embarrassing personal exposure. Such circumstances are ideal for reassessments of any kind. The Workshop made no effort to seek or impose conversions. No one’s basic values were changed. Rather, the Workshop sustained a friendly, tolerant, democratic exchange over a lengthy period about matters that are vital to lawyers and to citizens generally. Each of the participants learned important lessons from the others about different ways of seeing the world and some of its inhabitants; many of the participants were influenced to interpret the world more tolerantly as a consequence of the exchange.
And, judging by comments from some of the judges after the programs, they had an impact:
- One of the South Carolina judges, asked by his colleagues if the Workshop was useful, answered: “I know that in general our society believes that jail is always punishment; as a result of my time in Minnesota, I always ask myself whether punishment always has to be jail.”
- After the program’s first year, a very conservative judicial participant from southwestern Missouri told an assistant state corrections commissioner in my presence (and here I am quoting my own report of the incident to the Edna McConnell Clark Foundation):
It was not until a month or so [after the last Workshop session] that I realized it was the most important experience I have had as a judge, and the most useful one.
It was definitely the students who make the difference. . . . It was especially uncomfortable when one of my cases was to be discussed. It was especially bad for me because in my court and in my home what I say is the law. . . . There I had to justify everything or change my mind. It was a difficult but important experience for me.
I’m going to meet with [the state’s chief justice] and tell him to put his money where his mouth is—if he wants us to use alternative sentences, he damn well better make the resources available to us. I’ve now used Mineral Areas [a drug treatment program] four times since April, and I never even knew of its existence before I came to Minnesota.
And the judge’s assigned probation officer told the officer’s corrections department supervisor that something extraordinary must have happened because the judge had used his discretionary power to impose “shock probation” more in the 4 months after the last session of the Workshop than he had in his previous 11 years as a judge.
- One of the judges who attended the Workshop, a judge who on his own and with no funding initiated a local treatment program and a variety of alternatives to prison, wrote:
I must confess to a certain level of skepticism at the beginning of the 1996 Sentencing Workshop. After 21 years of judicial experience, I had an attitude of “I’ve seen it all before.”
Having now completed the Minnesota Sentencing Workshop, I must say it is equally true that I have never seen anything like it. The Workshop was far and away the best educational experience I have known in the area of sentencing, and I feel I have gained a great deal personally by participating. The Oklahoma judges, including myself, have experienced a kind of bonding with each other as a result of the Workshop. n
1. This paper is a partial version of a public lecture delivered at the University of Minnesota Law School on October 11, 1996, on the occasion of the presentation to me of the William L. Prosser Chair in Law. The Edna McConnell Clark Foundation provided financial support for the program this paper describes, and also provided the law school with funds to be used to encourage other law schools to adopt it. Eventually, seven other law schools adopted the program. The complete paper will be published in the 2013 volume of the Journal of Legal Education, published by the Association of American Law Schools.
2. Needless to say, the defendant’s name has been changed to protect his privacy.
3. As is true of procedural and substantive issues in other cases described in this essay, some of the Crocker charges have been simplified and others eliminated. Crocker, for example, was actually charged with one count of first-degree burglary (with violence), three counts of second-degree burglary, and two counts of driving while under suspension. He pleaded to the two driving counts and four counts of second-degree burglary. In addition, to save space, some medical diagnoses have been shortened and simplified.
4. His jail cellmate promptly committed suicide—only one of the many mysteries of this case.
5. On one occasion, Crocker had attempted to order a tear gas gun to help subdue a victim but had not actually acquired the weapon and had never otherwise acted on his fantasies.
6. See Michael Tonry, Intermediate Sanctions in Sentencing Reform, 2 U. Chi. L. Sch. Roundtable 391 (1995). Comparisons to other countries take no account of the occasional absurdly lengthy sentences imposed in some states—such as the Oklahoma case in which a jury sentenced the defendant to a 10,002-year consecutive sentence. Bill Braun, Jury Gives Rapist 10,002 Years, Tulsa (Okla.) Trib. & World, Apr. 18, 1996, at A9. Lengthy sentences in federal prosecutions for child sexual abuse are regularly approved in federal courts of appeal. See, e.g., United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (trial judge’s 17-year prison sentence reversed; trial judge instructed on remand to impose proper sentence of 30 years in prison) ; United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (defendant more than 80 years old sentenced to 20 years); United States v. Zastrow, 534 F.3d 854 (8th Cir. 2008) (73-year-old defendant sentenced to prison for 20 years).
7. See, e.g., United States v. Dyce, 78 F.3d 610, 616 (D.D.C. 1996).
8. When this speech was given, as is the case today, academic as well as popular literature was full of criticism of state and federal legislative and judicial sentencing policies (and, of course, the consequent overcrowding of state and federal prisons). For a recent illustration, see D. Cole, Can Our Shameful Prisons Be Reformed?, N.Y. Rev. Books 41 (Nov. 19, 2009). See also Randal C. Archibold, Driven to Fiscal Brink, State Opens Prison Doors, N.Y. Times, Mar. 24, 2010, at A14. For early and biting criticism of the federal guidelines, see Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85 (2005). For a fair history of the Guidelines “movement,” see Robert Weisberg, How Sentencing Commissions Turned Out to Be a Good Idea, 12 Berkeley J. Crim. Law 179 (2007). See also Kevin Reitz, The New Sentencing Conundrum: Policy and Constitutional Law at Cross-Purposes, 105 Colum. L. Rev. 1082 (2005); Kevin Reitz, Modeling Discretion in American Sentencing Systems, 20 Law & Pol’y 389 (1998).
9. Unless otherwise noted, all participant quotations in this paper are approximate and from memory.
10. See Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 592 (1996), describing the theory of “failure of democratic politics” as the “conventional answer” to the public’s resistance to alternative sanctions: “Members of the public are ignorant of the availability and feasibility of alternative sanctions; as a result, they are easy prey for self-interested politicians, who exploit their fear of crime by advocating more severe prison sentences. The only possible solution, on this analysis, is a relentless effort to educate the public on the virtues of the prison’s rivals.” Id. Professor Kahan claimed that the public’s resistance to alternative sanctions is better explained by their failure to satisfy the “expressive dimension” of punishment.
11. Norval Morris, The Future Of Imprisonment 59–62, 73–76 (1974). Morris described the notion as sentencing “parsimony.” Id. at 60. For an analysis of the competing meanings of the term, see Richard Frase, Sentencing Principles in Theory and Practice, 22 Crime & Just.: A Rev. Of Res. 363 (1997). For a recent, and very explicit and sarcastic, rejection of the notion of sentencing “parsimony,” see Irey, 612 F.3d at 1196 (majority opinion).
12. At each session, the core group usually expanded to include a variety of criminal justice professionals from states that have sentencing programs or states considering whether to adopt one.
13. Client-specific plans (CSP) differ in a variety of respects from traditional, and frequently prosecution-oriented, presentence investigations. First and foremost, CSPs are, as indicated in the text, defendant- and nonincarceration-oriented, while always making it clear to the reader that the recommendation is not an effort to rescue the defendant from punishment for the crime. Unlike most probation officers, the planner always looks for and usually discovers resources in the community unknown to corrections professionals that can be used for the defendant’s punishment and rehabilitation. Planners also arrange for the defendant to be connected to the resource and to be committed to it, and for it to be committed to him, before the judge is scheduled to sentence—thus increasing the likelihood that the judge will accept the recommendation. The planner also looks for and usually finds a stable member of the community who knows the defendant and is willing to take some responsibility for the success of his punishment, thus helping to minimize the judge’s fears of allowing the defendant to remain in the community. Even if client-specific planners and their plans played no role in persuading Workshop judges that nonincarcerative sentences can succeed, they would still be enormously useful; they show judges how much help good pre-sentencing investigations could give them in seeking just and individualized sentences. Showing judges that they should and need not be satisfied with the status quo encourages them to seek improvement in their own presentence evaluation systems.
14. See infra p. 27.
15. Consider a case reported by a Missouri judge at the first Minnesota Workshop session. A recommendation was made that a retired and pensioned 78-year-old child molester, almost certainly addicted to the powerful painkillers he was taking for a broken neck, probably an alcoholic, and possibly suffering from a brain disorder, be sentenced to share his home with a community- or defendant-financed permanent companion rather than to the two consecutive 15-year prison terms the sentencing judge had actually chosen—because the alternative sentence would save the community the substantial cost of the defendant’s stay in prison and provide just as much safety for neighborhood children.
16. In the Workshop’s first year, the casebooks sent to the judges contained their sentences as well as the other information about each case. Thereafter, because the tendency reported in the text became obvious, the casebook version of the cases blocked out any mention of the actual sentence. The judges’ sentences of other judges’ cases became considerably less uniform.
17. See, for example, the post-Workshop statement made to his colleagues by one of the judges who participated in the Workshop’s first year, infra p. 28. This myth, I believe, continues to invigorate a great deal of the academic support given to the “sentencing guidelines” “movement” because it is thought to be the only way to cabin judicial disparity in sentencing. For a short discussion of the situation in the federal courts, see supra note 8.
18. Most of the South Carolina cases contained very little file material. At the time, trial judges in that state “rode circuit” and had trouble obtaining files from local court systems. Most of the cases considered in the Worokshop were based on the trial judge’s memorandum reconstructing the facts.
19. It has never been clear to me, no expert on South Carolina sentencing law, from the judge’s report why he could not have given a probationary sentence. The judge did indicate that he made a practice of sentencing drug defendants to at least one year in prison because only with such a sentence would they be eligible for in-prison treatment programs. For the Workshop’s purposes it was not necessary to unravel the legal issue.
20. On many occasions during Workshop sessions, judges from the same state disagreed about the appropriate (or even legal) sentence for a particular defendant. Curiously, some of the judges, disagreeing with their colleagues, insisted that they had to follow state legislative discretionary sentencing guidelines because otherwise they would be left awash in a sea of discretion. Yet one of the colleagues of the judge who made this explicit claim insisted that he never consulted the state’s guidelines until he decided in the particular case what a just sentence would be.
There were many other occasions when Workshop discussions indicated that at least some judges know that special circumstances demand special sentencing styles. In one South Carolina case, the defendant “streaked” under the stands at a high school football game, apparently to attract the attention of the female cheerleaders of the local team. The defendant, a mentally disturbed individual who had not taken the medicine that usually controlled his otherwise bizarre behavior, was “arrested” by local members of the team and held for the police. When the circuit riding judge came to town for the sentencing hearing, he was informed that the defendant was taking his medicine regularly and that the courtroom was filled with angry parents of the offended cheerleaders. The judge reported to the Workshop that he told the clerk to advise the defendant in court that he was sentenced to probation—and left town before the crowd could confront him.
21. At the end of one first session, the last case involved a sexual abuse charge; as I had expected, the students’ sentences were extraordinarily harsh when compared to their sentences of other defendants or the judges’ sentences in that case. One of the judges approached me privately and said: “You just put that last case in the materials to show that the students’ sentences are as subjective and value-laden as ours are!” I pleaded guilty.
22. This case illustrated two more of the myths sentencing judges live by: character references are “a dime a dozen” and of “no consequence”—unless the judge decides to award the light sentence they usually recommend, in which case character references are emphasized. Similarly, a defendant’s “remorse” is of no consequence because all defendants are taught by their lawyers to show remorse; so a judge who decides on a harsh sentence need not be constrained by the showing. If the judge wants to impose a light sentence, a showing of remorse is emphasized. The game works as well with “absence of remorse.”
23. The other cases for the first session of the first Workshop played on a variety of similar themes. They included the young church worker who took nude pictures of himself with the children he was supervising, sentenced to five years in prison; a 25-year-old mother of two children under three charged with selling two $25 baggies of cocaine to an undercover agent who contacted her at her father’s night club, sentenced to five years in prison despite the prosecutor’s agreement not to oppose probation and denied “shock probation” because of the asserted importance of discouraging the use of drugs in southwestern Missouri; a 32-year-old man, married with two children, with six prior felonies but none within the last five years, who had fallen from the sixth floor of a building he was helping to paint and suffered multiple fractures all over his body with many consequential surgeries since, charged with shooting a friend in the back during an unconsummated cocaine deal, sentenced to five years in prison; a 40-year-old woman caught transporting marijuana through the county in the back seat of her car, sentenced to two years in prison, suspended on condition of 30 days in the local jail. The Missouri judges’ sentences for the defendants in these cases were almost as varied as the facts of the set of cases chosen for the session.
24. The Minnesota State Public Defender, a frequent visitor at Workshop sessions, put a sharp edge on the conversation when he announced that he would have sentenced the boys to prison because otherwise he would not have been able to look his own dog in the eye.
25. All five of the other Missouri judges sentenced the defendant to five years’ probation conditioned on 60 days of weekend local jail time. Remember that these sentences were imposed by judges who had seen the actual sentence imposed by their colleague. See supra note 16 and accompanying text. Most of the students and nonjudicial visiting participants (including the state public defender despite his inflammatory opening comment!; see supra note 24) gave similar probationary sentences, with conditioned jail time varying from eight to 120 days. One student sentenced the defendant to prison for two years, to be served on holidays and weekends.
26. The discussion of the arson case, involved as it was with what some perceived as racial and gender sentencing differentials, was somewhat tense. At the end, though, the judge, a fine advocate and a person forever delighted to stir controversy, taking note of the thematic undertones, wondered aloud how Workshop participants would have sentenced the arsonist if they had known he was Hispanic. Although the students knew that the defendant’s name was some equivalent of “Brockingham Smythe,” a name no person in the room would have identified as Hispanic, they were speechless. The judge’s assertion was neither challenged nor clarified.