Whenever I hear politicians thunder that they just want judges who “follow the law” I inwardly cringe. As a recently retired felony trial judge I know that judge’s rulings on many subjects, from admitting evidence, allowing experts, and especially sentencing, have no “law” to follow. The answer will come from my gut. My gut and my colleague’s gut down the hall may not be in sync, but both of us will be rarely reversed.
Why is this? All judges believe we have a superlative gut sense. But our upbringings, politics, incidents in our lives, and how we weigh rehabilitation versus punishment inform our decisions. The same rule applies also to Supreme Court justices. As Berkeley Law School dean Erwin Chemerinsky once wrote in the Daily Journal, California’s main legal newspaper, “It is nonsense to think that U.S. Supreme Court justices can decide Constitutional cases without making value choices.” He explained that the idea that Supreme Court justices should just apply the law and decide cases without justices’ views or life experiences affecting their decision is completely unrealistic.
Law professor Edward Latessa calls the decision process for judges choosing probation versus jail time “watermelon thumping.” “While some might be adept at choosing a ripe watermelon simply by thumping on it, others may succeed only some of the time. Judges who have been doing it for a long time can be good watermelon thumpers. New people to the bench are not good watermelon thumpers.” Recently, I read of two conservative presidential candidates discussing their children’s addiction issues. Before drug addiction hit their families, they expressed the view that drug addicts should face harsh sentences. Now they think drug addiction should be treated as a disease. Thumping the watermelon evidently sounds different after a personal family experience with drugs.
One day in front of me was a defendant on probation for receiving stolen property. I warned him in the past that if he violates his probation, I will consider sending him to prison. The defendant violated his probation because he didn’t report to his probation officer for two consecutive months. Should I send him to prison, or should I warn him to report, give him a few days in jail, and release him back on probation? What if he was caught violating curfew on the boardwalk in Venice, California? Should I sentence him to prison for violating his condition of probation that he obey all laws? What if he was found with one rock of cocaine in his pocket? Prison? Or what if he had one rock of cocaine in his pocket and also two rocks packaged for sale in plastic baggies? Did he just buy the rocks for personal use, or was he going to sell them? What if he was convicted of driving under the influence of alcohol?
Each of these examples could result in a prison sentence depending upon the philosophy and life experiences of the judge. Of all of the scenarios, I would be most inclined to sentence the defendant to prison for the driving under the influence conviction, especially if there was an accident or if his blood alcohol level was exceedingly high. If the defendant came into court though, expressed remorse, acknowledged his alcohol problem, and showed that he had been going to AA classes, I might not send him to prison. Putting others at risk by driving under the influence, for me, is more serious than the other offenses. Other judges might see things differently, but we are all “following the law.”
More serious than the defendant on probation for receiving stolen property was the case of an inmate serving sixty-six years in prison for a one month-long robbery spree with a gun when he was twenty years old. The prisoner, now thirty-eight, was now again in front of my colleague, his original sentencing judge. The state prison warden and prison psychologist recommended that the sentencing judge release the inmate early on parole, as he never had any disciplinary violations, had matured, was remorseful, and had diligently taken all classes the prison had to offer In only less than one percent of cases do the state prison authorities recommend resentencing. When I received two similar letters recommending early release during my tenure, I always placed the prisoner on parole, reasoning that the state prison authorities knew more than I did. Other judges, also colleagues, totally disregarded such letters, not even agreeing to hold a hearing. The sentencing judge in the case of the allegedly rehabilitated robber told me at lunch, “I’m going to resentence him to forty-four years rather than leaving the sentence at the original sixty-six.” I asked my colleague, “Why are you selecting forty-four years?” He responded, “It just feels right to me.”
Our opinions were wildly different considering the same set of facts. One decision gives the inmate a chance to have a career and family. Another judge would completely eliminate that opportunity as punishment for a series of stupid decisions at the age of twenty. The third judge would “split the baby” for no articulable reason other than “it feels right.” When I think of ill-informed blowhards wanting only judges who “follow the law,” I often say to myself, “if only Nexis-Lexis could provide me the correct answer.” That would be sweet.