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March 11, 2022 Feature

Humility: The Essential Ingredient in Sentencing

By Judge Douglas S. Lavine

I was recently speaking to some law students when one of them asked me if I had a mentor during my legal career. I thought about it and realized that I had never had a lawyer or judge mentor in the usual sense, but I had been mentored by the example of three exceptional men in my life.

One was my grandfather, who was brought to this country by his Jewish immigrant parents; went to Yale, then law school; and became a patent lawyer. He looked like an Old Testament prophet to my child’s eyes and drilled into me the importance of always, always keeping your word. Your word was sacred. Because of him, I decided to become a lawyer, but what he taught me had nothing to do with the law. Then, there was my father, who celebrated his 100th birthday on December 9, 2021. We are true soulmates. One of the things I learned by watching him is that everyone deserves to be treated with dignity and respect. He was a dentist, and some days I would visit him in his office and watch how he treated his nurses, the lab guy who delivered new sets of teeth, his patients, and the building workers—all the same. From him, I learned to treat people with dignity no matter their station. The third was my college professor Coleman B. Brown, the university chaplain at Colgate University in Hamilton, New York, where I was an undergraduate. Coleman was my teacher and then became a friend. He combined a razor-sharp intellect with the heart and soul of a man committed to the Gospel as he understood it. He was, very simply, a living example of how to think, act, analyze problems, and treat people. He was the finest person I have ever known. When confronted with a knotty issue, to this day, at age 71, I ask myself what Coleman would do.

I can never forget what Coleman once said to me during one of our many conversations: “We never want our executioners or our revolutionaries walking around with smiles on their faces.” What he meant was that there will be times when society will require us—or someone else—to perform very difficult and distasteful tasks. That is just a reality. If we ever are called on to perform one of those tasks, we must accept our responsibilities but should not enjoy doing so. We want people entrusted with those duties not to be happy, but melancholy. If they enjoy carrying out their grim task too much, they probably should not be doing it.

I think what Coleman said directly applies to judges when we sentence people. As a senior judge, I no longer sit on criminal cases, but I did for years, sentenced many defendants, and took part in many sentencing proceedings as a federal prosecutor from 1986 through 1993 in Connecticut. Coleman’s observations can be applied to judges when they perform their sentencing role. The job may be necessary, but, in my opinion, any judge who enjoys sentencing probably has a bit too much of the sadist in them. It is a solemn role that ought to be approached carefully and thoughtfully, never with gusto and glee.

Sentencings in the real world are nothing like the television versions. On the day of sentencing, it boils down to two people—you, the judge, and the defendant. I have been watching baseball since I was a little kid, but I have no idea what a hitter feels like when stepping into the batter’s box and looking out to see the pitcher 60 feet, 6 inches away about to throw a 100-mph fastball.

People who have never sentenced anyone have no idea what the experience feels like. The courtroom may be crowded, the victim may be present, the lawyers may make extensive arguments, but, in the end, it is a very personal, almost intimate, experience unlike any other. You are going to be staring into the defendant’s eyes—unless you purposely avoid them—and telling them what the next chapter of their life will look like.

I always wrote out my sentencing remarks so there could be no misunderstanding about why I sentenced as I did. I always discussed the standard sentencing factors—punishment, incapacitation, specific deterrence, general deterrence, rehabilitation—to the extent one of them provided a basis for the sentence. I always tried to be professional and always looked at the defendant.

The power differential could not be more stark. You have all of it; the defendant has none of it. This is where Lord Acton’s famous dictum comes to mind: “Power tends to corrupt, and absolute power corrupts absolutely.” Putting aside the statutory limit, the only thing restraining what sentence you impose, and how you go about it, is inside of you.

I don’t want to be misunderstood. Sentencing is not a kumbaya moment. It is a deadly serious enterprise often involving very bad people who have done atrocious things. Defendants are not being given a bouquet. They often must be addressed in a firm, clear, even harsh tone.

But trouble can arise when you are about to pronounce your sentence. I have always felt that you can tell an awful lot about a person’s character by watching them exercise power, especially when dealing with someone who is essentially powerless. How do they treat people who are lower on one of the hierarchical totem poles society imposes on us? Unfortunately, some of our leading politicians provide textbook cases of how not to approach sentencing. Our public discourse has grown so coarse and offensive that outrageous and insulting language has become normalized. Some younger judges may have come of legal age in this polluted environment.

But in a courtroom, judges must speak in a very particular way and never descend to the kind of discourse flooding us on television, on the internet, and in the political sphere. We always have a responsibility to measure our words and speak with dignity and, in the sentencing context, with humility.

I say this because my life experience—and my mentors—have persuaded me, “there, but for the grace of God, go I.” I realized long ago I was very lucky to have been born with loving parents, economic security, a roof over my head, and a meal on the table. My parents were always there for me and supported me in everything I did. I believe deeply if the conditions had been wrong and I had been born in a different time or place, or family, I could have been the one standing with head down in front of a judge. Fate decided otherwise, but it is not because I am intrinsically better or more virtuous than whomever I am sentencing. I am not. I venture a guess the same could be said of you.

This brings us to the question of humility in sentencing, something that doesn’t make its way into most seminars. Judges do speak for the community when they sentence, but there are many voices to choose from. Some degree of harshness may be needed. However, in passing a sentence, the judge should not speak with the voice of an avenging angel. Sarcasm, denigration of the defendant, and personal remarks about the defendant’s low character are not appropriate. Playing to the crowd is off-limits. It is better to be more concerned about your colleague’s opinions, and your reputation, than what a particular clique of people or the local newspaper thinks. Your job in sentencing is simply to do justice, period. It is not to make yourself the center of attention by showing how “tough” you are or how repelled by the defendant you may be. Show, instead, how fair, thoughtful, and measured you are. In my view, personally degrading a defendant tells you more about the judge’s character than the defendant’s. A judge should never use sentencing to exult in his moral superiority or bully a defendant, and, to return to Coleman Brown’s comment about executioners and revolutionaries, we don’t want sentencing judges, at the time of sentencing, to walk around with smiles on their faces. Any judge who enjoys sentencing too much may well have a personality defect.

I share these thoughts not because I believe I have attained some enlightened status. Ten minutes talking with my wife of 26 years would disabuse anyone of that notion. Make that five minutes. I share these thoughts because, as one ages, one realizes more fully and poignantly that all of us are heading in the same direction—and because our political culture rewards and often celebrates the ones who say the cruelest, most undignified, narcissistic, and preposterous things, contributing to a toxic societal environment.

So, judges—particularly younger judges—never ever succumb to the temptation to depart from your proper, dignified role when sentencing. Under no circumstances can you permit our polluted political environment to seep into your courtroom. Your courtroom must be an island of civility, and it is up to you to keep it that way. Adopt what I would call the “Golden Rule of Sentencing”—treat the defendant as you would have them treat you if you were standing where they stand and they were sitting on the bench looking down at you holding your fate in their hands.

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By Judge Douglas S. Lavine

Judge Douglas S. Lavine was appointed to the trial bench in Connecticut in 1993. In 2005, he was elevated to the state’s intermediate Appellate Court in Hartford. He is presently a judge trial referee. This article represents his own views only.