Some history of American sentencing in criminal law; Thoughts on sentencing DJT

The US has come a long way in evolution of its society, democracy, civil liberties and law. Now that the US is on the verge of de-evolving under the pressure of kleptocratic radical right authoritarianism and returning to the dark ages, a bit of history might be of some interest to see some of what we might lose. Writing for the Journal of Criminal Law and Criminology in 2010, law scholar and retired federal judge Nancy Gertner commentated:

A Short History of American Sentencing: 

Too Little Law, Too Much Law, or Just Right

I. COLONIAL JURIES AND SENTENCING

In colonial times, and particularly in the period before American independence, juries were de facto sentencers with substantial power. Many crimes were capital offenses. The result was binary—guilty and death, or not guilty and freedom.  There were few scalable punishments, or punishments involving a term of years. This is so because penitentiaries were not common until the end of the eighteenth century. Jurors plainly understood the impact of a guilty verdict on the defendant because of the relative simplicity of the criminal law and its penalty structure, and often because of the process by which they were selected. They were picked from the rolls of white men with property. Indeed, steps were sometimes taken to secure better qualified people to serve on juries. Juries were hardly representative in the sense that we understand today. The substantive criminal law was the province of the states, and was, for the most part, state common law, often deriving from cases with which the jurors were familiar. 

Like the modern jury, colonial jurors were authorized to give a general verdict without explanation, but unlike the modern jury, the colonial jury was explicitly permitted to find both the facts and the law. If capital punishment were inappropriate, they would simply decline to find guilt, or find the defendant guilty of a lesser crime in order to avoid the penalty of death. No one disparaged this as “jury nullification.”  Ignoring the law to effect a more lenient outcome was well within the jury’s role. In fact, several colonies explicitly provided for jury sentencing.

Thus, in the colonial division of labor, juries had a preeminent role. There was no need for a priori punishment standards or rules, because there was, for the most part, a single punishment. Penal philosophy, at least as a formal matter, was retributive. There was little national federal law, even after independence. Most criminal law derived from the common law and in time, statutes from state legislatures—law with which jurors were familiar.

II. THE ERA OF INDETERMINATE SENTENCING

The turn of the nineteenth century brought scalable punishments— penitentiaries and, in time, reformatories—and thus, a more complex set of sentencing outcomes. The jury could no longer link conviction to a particular sentence even if it had the power to sentence or decide questions of law—and it did not. Now, they were explicitly instructed to find only the facts; judges determined the applicable law. Federal substantive criminal law began to evolve, although most criminal prosecutions were still state-based. And the jury changed: it was more diverse as barriers to serving as jurors were lifted for minorities and women, as were property restrictions. With more and more access to education, a professional class of judges and lawyers evolved, and with it, the power of the jury declined, including the power to affect the sentence.

Unlike other common law countries, appellate review of sentences was extremely limited in American courts. In the federal system, the “doctrine of non-reviewability” prevailed until 1987, when the Federal Sentencing Guidelines became effective. Likewise, only a few states had appellate review of sentencing, and even then it was used “sparingly.” A trial judge’s authority to sentence was virtually unquestioned.

To sum up, judges and parole authorities had the most power relative to the other sentencing players. They were the acknowledged sentencing experts. There were few a priori rules or standards. Each case was resolved on its own merits; to the extent there were standards, they evolved from the day-to-day experience of sentencing individuals. There was little or no appellate review of sentencing.

III. GUIDELINE MOVEMENT 

In response to widespread calls to reform the indeterminate system, a number of states implemented sentencing guidelines. The sentencing guideline approach introduced a new institutional player, an administrative agency—the sentencing commission—charged with generating sentencing standards.36 The role of the commission, its powers vis-à-vis the other sentencing players, and its animating penal philosophy varied from state to state. 

In 1984, the federal government entered into the act with a version of sentencing reform that by the end of the decade would be widely criticized. Congress passed the Sentencing Reform Act of 1984 (SRA), creating the United States Sentencing Commission and abolishing parole. The Commission was supposed to do what Congress had been wholly unable to do, namely, to rationalize sentencing free of political influence, separate from the ever popular “crime du jour.” At the same time, the dominant penal philosophy changed. The public, and certain members of the academy, gave up on rehabilitation as a central purpose of sentencing, instead championing a philosophy known as “limited” retribution. With that change, the locus of sentencing expertise moved from the judges and parole authorities to the Commission, Congress, and, to a degree, the public. Retribution made sentencing more accessible to the public and, ironically, to Congress. What the crime and the criminal deserved could be the subject of debate with the late night talk show host, or in time, the blogosphere.

A. POPULIST PUNITIVENESS 

Crime became the fodder of political campaigns; “lenient” judges were parodied on the evening news and the bourgeoning 24/7 cable outlets. But the popular rage went beyond judges who were supposedly “soft on crime.” Efforts to restrict or even eliminate judicial discretion in sentencing paralleled efforts to strip judges of authority in a number of other areas. In 1981 and 1982 alone, more than two dozen bills stripping or altering federal courts’ jurisdiction were introduced in the Ninety-Seventh Congress. And the anti-judge, significantly anti-federal judge language was vituperative. 

B. MANDATORY MINIMUMS 

Congress, propelled by this atmosphere, passed a succession of mandatory minimum statutes, statutes that were wholly inconsistent with the SRA’s approach and surely with deference to the new “expert” Commission. Indeed, over time Congress directly intervened in Guideline determinations, ordering the Commission to increase this or that guideline. Congress’s role grew as the criminal law became more and more federalized, now accounting for the prosecution of more and more local gun and drug offenses, the kind of street crime that had traditionally been the state’s bailiwick.

Things are not what they used to be. If DJT and the Republicans succeed in overthrowing American democracy and the rule of law, one might expect that over time, the role and power of the jury will shrink and judges will have a lot more leeway to make partisan decisions for partisan purposes. In essence, judges will do what authoritarian politicians tell them to do.

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Writing an opinion for the NYT (not paywalled), Gertner argues for not jailing DJT in the wake of his 34 felony convictions:

While the statute under which he was convicted permits imprisonment, I would not send him to prison. .... My conclusions are based on the public record, my years of experience as a federal judge and a criminal defense lawyer and my decades teaching courses on sentencing at Yale and Harvard Law Schools.

Because falsification of business records in the first degree is a Class E felony under New York law, the possible sentence for each count ranges from probation to up to four years in state prison, a fine or a period of supervised probation that ends with the charges being dismissed as long as Mr. Trump has fully complied with the terms of the probation. New York judges have discretion to pick a punishment within the statutory limits.

One starting point in considering the sentence is looking at treatment other defendants have received who were convicted of the same or similar offenses. While defendants convicted of this offense can be sentenced to some prison time, most are not, especially first offenders, as Mr. Trump is. To be sure, this case is unique. It involved more than falsification; it was about efforts to interfere with an election.

Some have pointed to the fact that Mr. Trump showed no remorse after the verdict. Anyone who has a pending appeal — as he will have after he is sentenced — cannot admit to the charges. His admissions would make it impossible for him to defend himself in a second trial, were this conviction overturned.

But not expressing remorse for the crime is one thing. Attacking the jury is another. Prosecutors, like Alvin Bragg, the Manhattan district attorney, are elected officials who exercise discretion in bringing charges. They are fair targets for a defendant. Still, his decision was tested by a jury, 12 neutral citizens who spent six weeks of their lives listening to the evidence, against a standard of proof beyond a reasonable doubt, in an adversary system in which Mr. Trump had virtually unlimited resources to hire lawyers. There is no question that his attacks reflect a fundamental lack of respect for the rule of law, which points to imprisonment.

I would also consider Justice Merchan’s contempt findings. Mr. Trump willfully ignored the court’s rules — behavior that strongly suggests that he will not follow other laws.

But the bottom line is this: The factors pointing to imprisonment are outweighed by Mr. Trump’s unique position. Justice Merchan pulled his punches in imposing fines, not detention, for Mr. Trump’s repeated violations of his court orders. Anyone else would have been jailed. Mr. Trump no doubt will be treated differently — that is, less harshly — than other criminal defendants in our extraordinarily punitive criminal legal system. But we shouldn’t equalize the treatment of defendants by ramping up everyone’s punishment. Our criminal legal system is far too retributive and leans too heavily on imprisonment, no matter what the crime. Besides, Mr. Trump is different, because he was president and could become president again.

The other opinion in the article is by Norman Eisen, who argues that DJT should be jailed. Eisen was special counsel to the House Judiciary Committee for the first DJT impeachment and trial.

I had mixed feelings about putting DJT in the slammer. Home confinement and supervised probation seemed like a possibly better choice. But after reading Gertner’s argument for not jailing him, jailing him now seems to be the more appropriate punishment. 

In Gertner’s moral reasoning, DJT should not be jailed because of his unique position. In my moral thinking, he should be jailed for the same reason. Yes, DJT was unique. He is openly contemptuous of the rule of law and democracy itself. He was a sitting US president who knowingly broke laws to hide his sex scandal to help his deceit-based election. The dates of the records that DJT falsified range from February 14 through December 5, 2017. 

Q1: Should DJT not be jailed because of his unique, elite situation, or should he be treated like anyone else?

Q2: Does America have a two-tiered system of justice, one generally more lenient toward wealthy and/or powerful elites, and the other for everyone else? Put another way, when politicians sanctimoniously tell us that no one is above the law, is that mostly false or a flat out lie?