Super Lawyers
William C. Altreuter

Monday, December 22, 2003

We found ourselves in front of Judge John T. Elfvin at the end of last week-- it is probably a manifestation of his sense of humor that he calls his motion calendar on Fridays at 3:30. It came as no surprise to learn that this independent minded jurist is being criticized for his failure to slavishly follow the Federal Sentencing Guidelines. "Elfvin has weathered controversies before in his 28 years as a federal judge. Supporters in the Buffalo legal community call him brilliant and independent. Critics call him erratic and bullheaded." Put me in the "brilliant and independent" column.

Sentencing issues seem to me to be one of those things that legislatures are poorly equipped to deal with properly. The fact is that the sentence that is attached to a penal law provision does little or nothing to deter the proscribed conduct: all it does is reflect the extent to which the community, as embodied by the legislature, condemns the conduct in question. At some point, however, these things have a way of collapsing under the weight of their own hyperbole, and we are, I submit, well past that point. There is no rhyme or reason for a 240 year sentence, but there is also next to no turning back from the legislative enactments which set up that sort of sentencing-- legislators are not likely to roll back the sentences prescribed by statute, since to do so would be to appear soft on criminal behavior. The obvious answer is to defer to judicial discretion, since judges are insulated, somewhat, from the public pressure to over-react, but legislatures are loath to do this. The opportunity to grandstand is too great a temptation, for one thing, and there is a systemic distrust of the judiciary that arises from the fact that it is not responsive to public pressure.

Of course, in this particular instance Judge Elfvin might have worked a different result by enunciating findings of fact justifying his departure from the guidelines-- merely rejecting a conclusion because it is stupid (or, as in this case, "crazy") doesn't give the Court of Appeals much of a legal basis to go on.

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