Outside Counsel

The Honorable John T. Elfvin once observed, “guidelines [are] guidelines, not mandates.” If, as I believe the most valuable quality a judge can possess is a good temperament than the measure of that quality is the proper and constructive exercise of judicial discretion. Indeed, I might go so far as to say that the exercise of judicial discretion is one of the most important qualities of a free society. In considering a just and fair sentence the Courts ought to look first to the principles that underlie the jurisprudential justifications for punishment: harm mitigation, retribution, rehabilitation, deterrence, and retribution. The Sentencing Reform Act of 1984, 18 U.S.C. § 3553(a)(2) (A) through (D) uses different nomenclature, and instruct sentencing courts to consider the necessity of the sentence imposed:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other, correctional treatment in the most effective manner.

Broadly speaking (A) is a reference to the “just deserts” theory of punishment, while (B) through (D) are utilitarian in focus. When enforcing the federal sentencing scheme, courts are required to consider six factors, subsidiary to the traditional sentencing rationales.. (18 U.S.C. § 3553(a)(1)-(7). These are: (a) "the nature and circumstances of the offense and the history and characteristics of the defendant"; (b) "the kinds of sentences available"; (c) "the kinds of sentence and the sentencing range established" by the Sentencing Guidelines; (d) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"; (e) "any pertinent policy statement issued by the Sentencing Commission"; and (f) "the need to provide restitution to any victims of the offense." (See, e.g. United States v. Giraldo, 822 F.2d 205, 210 (2d Cir.). These factors are also focused on retribution and utility respectively, and it seems reasonable to say that in balancing these considerations – and leaving aside the actual Guidelines’ recommendations with regard to what constitutes a suitable punishment in any given instance, Congress intended that utilitarian concerns be given greater weight than retribution.