Crime, Sentencing Law, White-Collar Crime

Kozinski On Juries, Sentencing, and Justice

Judge Kozinski has some ideas for fixing our criminal justice system.

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Judge Alex Kozinski’s preface to the Georgetown Law Journal’s Criminal Procedure Project is a rich text. Like the Bible or Infinite Jest (affiliate links), it rewards continued study. Last week, I wrote about his broadside on many of the beliefs about the world that our criminal justice system relies on. Today I’d like to talk about one of his proposed reforms: involving juries more at sentencing.

Kozinski is, of course, not the only guy saying that sentencing in our criminal justice system is broken.

Just this week, President Obama reduced the sentences of a number — though too low a number — of folks in prison on drug sentences. He also rolled out proposals for criminal justice reform.

Based on what I’ve seen, it seems like Obama’s proposals are like a lot of his presidency: well-intentioned, safe, overly reliant on legislation, and ineffective. Sure, getting rid of the worst of mandatory minimums is good, and prison rape is bad, and solitary confinement should be used much, much more sparingly. But Obama sees this as a legislative problem. The dude runs the branch of the government that puts people in prison — he can pick up the phone and order, right now, that prosecutors act differently. Instead, he wants to send a bill to Congress so he can wring his hands over inaction in a year. That’s not the change I believed in.

Returning to Kozinski — he rightly notes that some injustices are more obvious than others.

On one hand, putting people who are factually innocent in prison for years is pretty easy to see as wrong. Yet putting people in prison for many many years who should serve much lower sentences is also wrong, it’s just harder to see.

We can all agree that we shouldn’t put people in prison longer than they ought to be there — a life sentence for stealing a cell phone, even if it’s your cell phone, would be too much. But how long is too long for a sentence, or how long is just long enough, is more opaque.

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What’s worse, people can reasonably disagree about what ought to be relevant to figuring out how long to imprison someone.

Is it solely a question of deterrence? Do we look to see what the lowest possible average sentence needs to be to have the lowest possible crime rate? Assuming that’s possible, it cuts out a moral dimension to sentencing that matters to many — sentencing is where society, to the extent it wants to, extracts vengeance and expresses its moral evaluation of a person’s conduct.

These questions are not unrelated to questions about why we have a criminal justice system in the first place. Is our criminal justice system a way to solve society’s failures with respect to a specific person, or is it a morality play about right and wrong? Or, perhaps as with obstruction of justice prosecutions, is the criminal justice system merely the vehicle by which the government reminds us of its power?

The answers to these probably ought to vary based on how functional society is. If, as in America now, we don’t have a functioning mental health system for the many deeply mentally ill people walking our streets without medical care — such as Justice Roberts’s law school classmate profiled in the Washington Post this week — we’re going to see those people in our criminal courts. Yet if there’s a villain in that story, it’s the dull entropy of our country’s social safety net.

And, if we’re prosecuting people based on minor regulatory offenses — of the Yates variety — then it’s also hard to see the criminal justice system as being about vindicating morality. Except for those who are criticizing it.

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Generally speaking, the question of what our deeper purpose is in having a court system is not the kind of question it’s useful for a lawyer to think about — at least not when she’s on the clock. A system of justice will not work if in each case you have to start at first principles and figure out why we have a system of justice in the first place — though it would solve the unemployment problems that chronically plague professional philosophers.

And this is not to say that a hard question to answer isn’t answerable — at least at the margins. We can all agree that a 20-year prison sentence for drinking underage is unjust. And we can similarly all agree that community service is unlikely to be the right sentence for a murder.

Kozinski — a smart and deep man, but, above all, a lawyer — proposes two ways to acknowledge the difficulty of these questions, actually get down the road on imposing sentences, and, at the same time, curb the injustice of immorally long sentences.

First, he thinks juries should be told during the trial on guilt or innocence what the sentence is likely to be. Here’s Kozinksi:

In making most life decisions, we consider the consequences in determining how much effort to put into deciding and the degree of confidence we must feel before we go forward. Whether to get married or have a risky operation obviously requires a greater psychological commitment than choosing between Starbucks and Peets. Jurors should be told the gravity of the decision they are making so they can take it into account in deciding whether to convict or acquit. As representatives of the community where the defendant committed his crime, the jury should be allowed to make the judgment of whether the punishment is too severe to permit a conviction. Having to confront the jury with the severity of the punishment they are seeking to extract may well deter prosecutors from using overcharging as a bargaining tool.

What’s lovely about this is that it stays away from the n-word: nullification. While a serious proposal about doing this would likely be greeted as a call for nullification, Kozinski’s point makes sense on other grounds — knowing the stakes informs the seriousness of deliberation.

Second, he proposes giving jurors a say over what the sentence ought to be. Here’s his proposal:

Except for capital cases, we have turned our sentencing process over entirely to experts and professionals. We have mandatory minimums, sentencing guidelines, probation officers and judges at all levels involved in the decision, but we studiously ignore the views of the very people who heard the evidence and are given the responsibility to determine guilt or innocence while reflecting the values of the community in which the offense occurred. This is a system only a lawyer could love. Jurors should be instructed on the range of punishments authorized by law and, if they find the defendant guilty, entrusted to weigh in on the appropriate sentence within that range. And I would make that the absolute upper limit of what punishment the judges actually impose, overriding any sentencing guidelines, mandatory minimums or their own considered judgment.

It’s a startlingly democratic suggestion from the judicial branch. It would also be a nice curb to prosecutorial overreaching. And, hey, if the prosecutors really think their case is deserving of the outrage they bring to it, they can prove it.

Figuring out how we ought to look at sentencing is hard. It’s as hard as any question of what our government’s policies ought to be. When it comes to how we should tax, or spend, or go to war, we trust our citizens to weigh in. I don’t see any reason — other than ossified legal tradition — to do it differently here.

Preface to the 44th Annual Review of Criminal Procedure [Georgetown Law Journal]

Earlier: Why Judges and Prosecutors Don’t Care If They’re Right

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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