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March 15, 2009

Key documents as we prepare for "sentencing" former Judge Samuel Kent

As mentioned in prior posts and in class, our in-class examination of non-capital sentencing and of modern sentencing reforms will focus — at times a lot and at times a little — on the real case of former federal district judge Samuel Kent.  There is lots and lots of background information about this case available on the web, including this effective  this effective March 2 piece from the Texas Lawyer, headlined "What's Next for Samuel Kent in Wake of Guilty Plea?".  But for purposes of our class discussion, the only essential reading are these key legal documents from the case:

This case and these documents should enable us to discuss effectively many of the challenging legal and policy issues covered in chapters 3 through 8.  Though I doubt we will get a chance in class to review systematically all the readings/ideas set forth in all these chapters, you should be able to find useful readings on a range of relevant topics from all those chapters as they apply to former Judge Kent's case.  And, if there are particular issues relating to former Judge Kent's upcoming sentencing that you want to make sure we discuss in class, please feel free to use the comments (or class time) to spotlight issues you want to make sure we cover.

March 15, 2009 in Class activities | Permalink


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Shouldn't we be fundamentally unsatisfied about a lone guilty plea for obstructing justice in the investigation that followed Judge Kent's criminal sexual behavior?

The victims were denied a true opportunity to have the crimes Kent committed against them aired and adjudicated, and the community was denied an opportunity to pass public judgment on Judge Kent. No doubt the victims and the community can say, "well, at least he's going away for something," but this seems like small solace.

Additionally, although Judge Kent is almost certainly guilty of these crimes, this case illustrates the terrible dilemma that someone who is actually-innocent (or legally innocent of the more severe of multiple charges) faces. The more severe the potential maximum penalties, the more the defendant would be swayed to confess to something that they are not actually guilty of.

One counterargument I've heard is that no one would plead guilty if they weren't actually guilty. I don't think this argument is correct, for several reasons:

1. If, because of your experiences with police and the justice system, you're very skeptical of police, law, and the whole system (perhaps because you're poor or a minority) you'd likely think that the system's not going to give you a fair chance to prove your innocence. You'd probably think that the system's going to get you no matter what, so you might as well just take the lesser penalty.

2. If, to adopt a conservative premise, the government is largely incompetent, bureaucratic, and self-serving, why would you have any faith in the government's ability to correctly adjudicate your guilt?

3. You may quite correctly view yourself to be lacking in the resources, especially financial but also emotional, to mount an effective defense.

The problem of inducing faulty guilty pleas seems inherent in a plea bargaining-based system. Since effective plea bargaining relies upon people acting in rational self-interest by pleading guilty when they otherwise face much more serious punishment, the more effective a system is at producing pleas, the more frequently that system will result in false confessions. And, since our current system depends upon plea bargaining in order to function, the system inevitably demands extremely harsh penalties be meted out to those who refuse to plead. Thus, we've already resigned ourselves to a system where many plead guilty out of sheer fear of the punishments incurred if they don't, regardless of their own guilt or innocence. And again, this problem extends beyond the problem of innocence: just as in the case of Judge Kent, victims and the community are denied the chance to truly feel like justice has been done.

If we were willing to rethink the range activities and people that we are willing to criminalize, we could create a system that does not depend upon plea bargaining, as the far fewer number of cases could receive a far larger amount of resources. However, absent a willingness to do so, such problems will continue.

Posted by: Leon Sinoff | Mar 19, 2009 3:17:45 AM

Great points, Leon, which highlights one (of many) reasons I find the Kent case fascinating. And, of course, you need to think about (and struggle with) whether and how the law, policies and practices of plea bargaining can be changed/improved to reflect your feeling of being "fundamentally unsatisfied." You also need to think about (and struggle with) whether and how a sentence system (and/or a sentencing judge) can and should seek a bit more satisfaction when it is time to impose a sentence on Judge Kent.

Posted by: Doug B. | Mar 19, 2009 10:59:27 AM

Did you notice that the court looks like a church? The idea of the trial is from the Church, to impress and intimidate the peasants, by an expensive, scary production. It is a load of cult garbage. The judge is a political hack windbag, an election loser has been, worthy only of contempt.

The lawyer invented the plea bargain, with an assembly line resolution, not emphasizing real guilt or innocence, but speed.

Both are in total failure. They do not protect the public, and they fill prison beds with innocent people who are not a threat to safety. The failure is in every direction. It is a mass crime against humanity. There will be 5 million violent victimizations next year, as there was last year, and as the sun will set in the West.

Something lies in between. The inquisitorial judge. Where the trial is no longer expensive, grand ritualistic theater. It is a technical investigation run by a neutral party, the judge, who works for the citizens, to protect them from true violent predators. This judge should under no circumstances be a lawyer, since the two professions are incompatible. The judge should be a professional judge who attended judge school, and passed judge tests to qualify for a judge license. The candidates should be older than 40, have suffered a little, and have been responsible for making decisions in another field. They should have a judicial temperament.

The argument against the inquisitorial judge is bias. Whom is the judge more likely to feel more comfortable speaking to, the police or the defendant and his associates. That is where judge temperament is most important to assess prior to admission to judge school. The school should train that bias out of all candidates

Not as fast as plea bargain, but far more professional, accurate, and fairer. Not as expensive as the trial, and less rent seeking. Less Halloween idiotic looking. No hammers. No bench. No robes. No standing. No Bibles. Preferably no eyewitness testimony. If there is to be a jury, they should have knowledge, since that is their sole advantage.

Today, a judge goes to the scene of the crime to get an idea for himself? Removed from the bench immediately. The reason? Decreases the billable time spent by the lawyers on both sides.

Some standard of judging, emphasizing public safety and the prevention of false guilty verdicts should allow judge malpractice claims to be filed, by crime victims and by criminal defendants. Let the judge carry insurance. If you say, the judge should not be bothered and harassed by tort litigation, that argument applies far more to the welder, or the hotel clerk, whose jobs are more important than the judge's.

Posted by: Supremacy Claus | Mar 19, 2009 5:29:18 PM

Just to briefly respond to Prof. Berman, I do have some non-sentencing-based suggestions for improvements which would leave me (and I hope, others) less "fundamentally unsatisfied".

First, reduce the range of activities subject to criminal sentencing, and decrease the severity of sanction for the crimes that aren't at the heart of what the criminal justice system is about. I perceive crimes of violence and theft to be at the heart of the criminal justice system - these are the acts that a criminal justice system absolutely must redress. Less resources spent on peripheral matters means more resources spent on "at the heart" matters, which means less necessity for plea bargaining, and thus more ability to achieve public justice through trial. Also, I think I favor encouraging alternative dispute resolution in criminal cases where all parties consent to the process.

I hope to develop clearer sentencing-based ideas for reform as I continue through the class.

Posted by: Leon Sinoff | Mar 25, 2009 3:00:30 PM

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