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Back to list of Dissenting Opinions of Judges

January 21, 2005 - The New York Times

Sentencing and Sensibility

By Myron H. Thompson, Federal Judge

Montgomery, Ala. - MORE than 2,500 years ago, the Athenian leader Draco codified the laws of his city-state, which was then suffering from political and social unrest.

According to Plutarch, "Death was appointed for almost all offenses, insomuch that those that were convicted of idleness were to die, and those who stole a cabbage or an apple to suffer even as villains who committed sacrilege or murder."

However repressive Draco's code may have seemed to later generations - and it spawned its own pejorative adjective, "draconian" - it was well intentioned. Draco sought to replace a relatively arbitrary system of oral law that had been maintained by the nobility. His written code of crime and punishment provided more power to the state as an arbiter of justice and ensured greater uniformity in the meting out of punishments.

Yet Draco's efforts to institute a one-punishment-fits-all system of sentencing eventually became viewed as barbarously severe, and his code was repealed.

Draco's example is especially relevant in the wake of the Supreme Court's decision last week, in United States v. Booker, that the sentencing guidelines federal judges have used for criminal offenders for more than 20 years were advisory, not mandatory.

Since the court's holding may increase trial judges' discretion in sentencing - and since the court itself invited a legislative response - some members of Congress are sure to propose more statutory sentencing rules, like more and harsher minimum sentences.

Yet amid the confusion that will undoubtedly follow this decision, we should keep in mind one basic principle: neither consistency nor codification guarantees justice. While few if any are calling for a return to the practically unfettered discretion that judges had before the sentencing guidelines came into effect, the nuances of individual cases necessitate a certain fluidity in imposing punishment. Congress should seek to shape judicial discretion, not to lock it in a vise.

A sentencing scheme that provides different punishments for offenders with similar backgrounds who are convicted of similar crimes under similar circumstances is clearly unjust. Yet so is one that provides comparable punishments for offenders with different backgrounds who are convicted of similar crimes under different circumstances.

Ultimately, it is the trial judge who is in the best position to distinguish between these two sets of circumstances, although Congress's guidance is critical in ensuring that one standard of justice exists throughout the federal court system.

It is the judge who can appreciate the full complexity of the offender and his crime, and no prescriptive set of laws can appreciate the subtleties in determining the punishment that justice demands. If the 600-plus pages of the most recent set of sentencing guidelines have taught us anything, it is that punishment cannot be reduced to an algorithm.

As Congress begins to consider its response to the Supreme Court's decision, may all of us be mindful of both the past and the future, so that generations to come do not use our own lawmakers' names as synonyms for a harsh and unforgiving legal system.

Myron H. Thompson is a federal district court judge.

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