Gavel Gamut
By Jim Redwine
(Week of 28 September 2015)
BRIDLED JUSTICE
Judge Roy Bean: The Law West of the Pecos. Judge Isaac Parker: The Hanging Judge. Jesus: Judge not lest you be judged – let those without sin cast the first stones.
Judges Bean and Parker sentenced without restraint. Judge Jesus did not judge at all, not even Judas. These are the extremes of judging. Socrates said the job of a judge in passing a sentence is to do justice, not make a present of it.
Socrates called for his judges in the Athenian Senate to make their decisions based on the law as applied to his specific facts. Socrates was wise.
Once a legal system places reasonable restraints on judges and gives them clear directives, sentences are more likely to be fair. Fair means that similar penalties will be applied to the same crimes committed by persons with similar backgrounds.
Vengeance, mercy, forgiveness, whim and inconsistency are less likely if the government establishes a procedure that judges are supposed to apply regardless of the identity or status of the defendant.
It is the parameters of the statute violated, the behavior of the defendant during and around the time of the crime and the background of the defendant, such as a criminal record, and what sentences were imposed on other similarly situated persons that should control. In fact, if one were to have knowledge of these factors, a reasonably accurate prediction of a sentence should be possible.
Of course, human beings and human behavior are not die cast. Never have two defendants with identical backgrounds committed identical crimes in the exact same way. Also, although judges can draw upon history to compare crimes and defendants, such a process, even if based on objective criteria, has a high degree of subjectivity.
Where a just sentence begins is in the legislature, which has the duty and authority to determine what crimes there are and what range of penalties is available for each crime. A judge’s duty is to follow the law without bias for or against particular defendants.
Gentle Reader, if you were a judge, how would you decide? If you were a defendant, how would you want to be judged? In either hypothetical situation, you would most likely appreciate having a set procedure that you could understand and rely upon.
Judges make mistakes. Judges may ignore the law. Judges may allow their prejudices to overwhelm their analysis even if the proper procedure is ostensibly followed. Still, we are better off having a sentencing matrix than unbridled discretion.
Judges Bean and Parker make for interesting reading, but are more akin to TV’s Judge Judy than philosopher kings. And, Jesus may have been fine as a humanitarian, but someone has to protect lives, persons and property.
Our legal system calls for justice, and justice requires judges to look to each case’s facts and each defendant’s background then follow the law without passion or pique.
