Legal question about judges

[Nengjanggo]

Google has failed me, and I was wondering if any of the lawyers or not-a-lawyer-but-still-smart people around here could help me.

Let's say there is a sentencing guideline, or, better yet, a mandatory sentencing rule, for a certain crime. And a judge exceeds it. What happens to the judge (not the sentence)? Anything?

What happens to the judge if they do it over and over?

Is there any legal penalty or downside to this for the judge?

Thanks for any help you can give me (and, if it's not asking to much, could you provide sources if you have them?).

[Anti-Bunny]

Unless I am mistaken (highly possible!), the mandatory sentences always read: "of not LESS THAN" In other words, "at least". No provision in most laws AFAIK for going over. However, if a judge consistently over-sentences it is at least theoretically possible that he could be censured by the state bar.

For example, Baltimore City judge Charles Bernstein was reprimanded by the Maryland Bar for demonstrating bias towards prosecutors in two cases with drug dealers. There are also plenty of reprimands for more "creative" (http://www.law.com/jsp/article.jsp?id=1167991328601) practices.

[Nengjanggo]

Interesting, thank you!

So, what if they consistently under sentence? Really, I'm interested in the question if sentencing guidelines or mandatory sentences rules are backed up by sanctions against judges who don't follow them.

[Anti-Bunny]

Google turned some stuff up you might find interesting:
http://www.ndsn.org/jan95/judge.html
http://www.nytimes.com/1994/07/20/us/california-judge-refuses-to-apply-a-tough-new-sentencing-law.html

Of particular note:
"A U.S. district judge in Washington declared federal sentencing guidelines unconstitutional yesterday and refused to impose a 30- year sentence on a 25-year-old repeat drug offender. Judge Harold H. Greene, an outspoken opponent of the guidelines, issued a 21-page opinion in which he said the sentencing rules that became effective in 1987 violate both the due process clause of the Fifth Amendment and the Eighth Amendment protection against cruel and unusual punishment...."

[Rywill]

State laws vary. Many, many laws are mandatory minimums or mandatory additions to a sentence. In California, there are also maximum sentences for most crimes. Most crimes have a presumed "low," "middle," and "high" term, and the judge simply picks one of those (and then adds in anything he or she has to for other allegations that were proved, prior convictions, etc. -- but for the bare crime itself, it's one of those three terms). For example, a robbery conviction will get you two, three, or five years. Assuming there are no other relevant factors, a judge sentencing you to more than five years has entered an illegal sentence.

Federal cases are covered by an extremely complex set of sentencing guidelines, as well as statutory minimum and maximum sentences. Within the minimums and maximums, judges have wide latitude to sentence people to whatever they think is proper. Often, the range is very wide, like zero to twenty years (although the recommended guideline sentencing range would be much narrower). Federal judges have a lot of power.

If any judge entered a sentence higher than the max, you can appeal the sentence. That appeal would certainly be granted, with the appellate court ordering the trial judge to enter the proper sentence. If the judge refused to do that, the appellate court could reassign the case to another judge (that actually happened once, in federal court -- the Ninth Circuit, after remanding a case back to Judge Real I think twice, eventually ordered that the case be reassigned to someone else. I think it was on a sentencing issue; whatever it was, they kept telling him to do something and he kept not doing it and getting re-appealed, and eventually they directed the clerk of the court to assign the case to another judge).

In real life, a judge essentially never enters an illegal sentence unless it's by honest mistake. Once reversed on that issue, the judge always (with that one exception I've seen) does what he or she is told.

In terms of what could happen if a judge continually refused to play by the rules, again, it varies by state. California judges have to stand for re-election and could be voted out of office. I don't think they're subject to recall, but I'm not sure. They are subject to impeachment. They can also be reassigned by the presiding judge of their court or of their county; problem judges may be assigned to duties that don't involve important decisions, such as arraignment court, traffic court, small claims, or some similar job. Federal judges are appointed for life, but are subject to impeachment. I assume that, like state judges, they can also be reassigned to less-damaging positions if they're a problem.

[Rywill]

Google turned some stuff up you might find interesting:
http://www.ndsn.org/jan95/judge.html
http://www.nytimes.com/1994/07/20/us/california-judge-refuses-to-apply-a-tough-new-sentencing-law.html

Of particular note:
Incidentally, that news is way out of date. Although for many many years the federal sentencing "guidelines" were in fact mandatory, and federal judges had very little power in imposing sentence, several years ago the US Supreme Court agreed that mandatory "guidelines" are unconstitutional. The guidelines are just guidelines again, and have been for several years. Federal judges went from being nearly powerless at sentencing to having enormous power at sentencing, all at the stroke of the Supreme Court's pen.

Of course, the legislatures (both federal and state) still maintain power to set minimum and maximum sentences for given crimes and for various enhancements. In federal court, many drug crimes still have extremely high mandatory minimums (just to take one example), although those are currently being reviewed. In California, as well, there are some crimes or crime enhancements that carry very significant amounts of minimum time -- certain gun-use allegations can add a mandatory ten or even twenty years; adding a gang allegation to certain crimes also raises the stakes considerably (sometimes changing misdemeanors into felonies or changing regular felonies into life offenses); and of course California has its "three-strikes" law that can change any felony into a 25-to-life offense if the person has two prior strike convictions on their record.

[Flowers]

If the judge goes over the max, just get a copy of the judgment of conviction and file a motion to rehear instead of appealling, it might save you three hundred to several thousand dollars. If it gets swatted down, then just appeal.

If the judge isn't going over the max, but rather merely exceeding the guidelines, your state will have different rules regarding what the judge must find at sentencing, appeal it. If you're pleading guilty, you should always be getting less than the guidelines, otherwise there's no incentive. If a judge is jumping a plea deal, it happens, but it's rare.

Did you say something to piss the judge off during sentencing? You should try not to do that.

[Mordrak]

So it's not a good idea to tell judges their robes make them look fat?

[Nengjanggo]

Thanks for the comments. Very helpful.

I'm teaching a class next semester on philosophical issues related to the law. One issue is "What makes something a law?" There's a classical theory that the law is a series of commands (of a certain kind) backed by threats (not really accepted so much these days). One issue that comes up when I think about this theory is whether or not some laws are in part commands to judges (to punish people in certain ways or certain things). So I was curious if in the U.S. these commands to judges (such as they are) are in fact backed up by threats, since if they are not that's a serious problem for this theory. But I couldn't remember ever discussing that when I was in law school, and like I said, google didn't tell me.

I feel like my question has been answered!

[RickH]

One issue is "What makes something a law?" There's a classical theory that the law is a series of commands (of a certain kind) backed by threats (not really accepted so much these days).

Perhaps you could discuss the significance of laws that exist without enforcement mechanisms. Are they still laws, or some sort of statutory proclamation or resolution?

[ElGuapo]

Correct if I'm wrong, lawyers who follow these things closely, but last year the Supreme Court handed down a decision that judges can sentence pretty much however they want, as long as it's reasonable (and of course that's a term the prosecution and defense can argue over endlessly).

I believe the decision was based on the crack vs. cocaine sentencing guideline discrepancies, but of course the broad brush led to a decision about sentencing guidelines. They essentially ruled that judges can do whatever they want withing reason, from going for the minimum (ignoring mandatory minimums if they choose) to exceeding the maximum.

I'm sure if the guidelines were say, 1 to 3 years and the judge handed out 10, there would be cause for "unreasonable" and an appeal, but who knows where it all falls.

[ElGuapo]

Perhaps you could discuss the significance of laws that exist without enforcement mechanisms. Are they still laws, or some sort of statutory proclamation or resolution?

Sorry, I'd like to have discussion on this as well. as far as I'm concerned ALL laws are backed by threat of force escalation and involuntary imprisonment, from murder to jaywalking. Even parking tickets are backed by the threat of the government outright stealing your vehicle from you if you don't pay them.

It's escalation. To sum:

You get some ticket or break some law you don't agree with. Let's say jaywalking. Or turning right on red. Or not paying your taxes.
You refuse to show up for court or pay the fine. You basically ignore the law.
Some kind of arrest warrant is issued for you.
They show up to arrest you/find you at some point.
You refuse to allow them to arrest you, given you don't agree with the initial law.
The tazer you, or pull their guns on you, and through threat of violence and death, make you submit.

Right? I mean, all laws are based on the fact that the government can kill you or capture you and imprison you for ignoring them, through a series of escalations.

[Michael Fitch]

Greetings:
If you're doing a philosophical approach, I like both Althusser's Ideology and Ideological State Apparatusses and Foucault's Discipline and Punish. Each of these, in its own way, turns the standard framework of thinking about the law and its relationship to the citizenry on its head.

I particularly like Foucault's notion that the nature of the law is to define everyone as transgressive in some way so as to create the possibility of state power. I think that ties nicely into what ElGuapo's talking about.

And for Althusser, the transformation of the object of the law into the subject creates a very different type of power flow model that I think bridges the macro/organizational logic of the law and the micro/social versions of it we live with on a more concrete basis.

But, that's just me.

Best,
Michael.

[Rywill]

Correct if I'm wrong, lawyers who follow these things closely, but last year the Supreme Court handed down a decision that judges can sentence pretty much however they want, as long as it's reasonable (and of course that's a term the prosecution and defense can argue over endlessly).

I believe the decision was based on the crack vs. cocaine sentencing guideline discrepancies, but of course the broad brush led to a decision about sentencing guidelines. They essentially ruled that judges can do whatever they want withing reason, from going for the minimum (ignoring mandatory minimums if they choose) to exceeding the maximum
The Booker case, which made the US Sentencing Guidelines advisory rather than mandatory and allowed the judge to set any "reasonable" sentence within the minimum and maximum set by law, was decided in January of 2005. It did not deal with the crack/powder cocaine disparity; it was a case about how much crack the defendant had (the jury found he had 50 or more grams, but the judge found he had several hundred grams, which mandated a much harsher sentence under the USSG). I believe the crack/powder disparity has since been eliminated, or is in the process of being eliminated, by either legislative action or by the committee that deals with sentencing and the USSG.

I don't know of any authority that allows a judge to go below or above the statutory minimum or maximum sentences, no matter how lousy the judge thinks those may be.

[Funkula]

One point that you should probably bring up in the class is that direct instructions from LUIS pretty much override sentencing guidelines in all jurisdictions. I don't know the procedural details, though, so you'll have to ask the resident expert.

[ElGuapo]

Rywill, you may be entirely right. I sat in for the oral arguments in the Booker case (I had forget the name) and the questions from some of the justices dealt with judges completely disregarding the minimums and maximums. When questioned whether they could do this, the person responding (I believe it was the representative of the state) said they could practically do whatever they want. If I remember corrected he then mentioned that that sentence could be of course overturned by a higher court and that the judge him/herself could be reviewed administratively. But the initial sentence would stand unless successfully appealed.

As for philosophical debates along these lines, Both Locke and Hobbes argued that as a society we give up some individual rights in order to live in a safe society where we have laws that apply to us all. In effect, you can't do anything you want, because then things devolve to a "state of nature" (anarchy). But in order to avoid this, you cede some rights (and liberty) to the state. This social contract binds us all.

[Rywill]

When questioned whether they could do this, the person responding (I believe it was the representative of the state) said they could practically do whatever they want. If I remember corrected he then mentioned that that sentence could be of course overturned by a higher court and that the judge him/herself could be reviewed administratively. But the initial sentence would stand unless successfully appealed.
That is absolutely true. The state Department of Corrections or federal Bureau of Prisons don't, as far as I know, question the sentence. Whatever is written on the judgment & commitment, they just carry that out. So if a judge sentenced someone above or below what is legally allowed and nobody appealed it / had it reheard, the illegal sentence would be carried out.

As a functional matter, and this gets back to the OP's point, it happens from time to time that a judge does something that is not technically legal because they know that the aggrieved party isn't going to do anything about it. But very few judges would enter an illegal sentence, unless maybe it's something both sides had agreed to (and usually not even then). On other issues, though, I've definitely seen it. The judge says he's going to do X, an attorney says "But that's not legal, Your Honor," and the judge says "File your writ." Then the attorney gets mad and says "Yes, Your Honor" and doesn't do anything, and X is what happens.

[RickH]

. . . it happens from time to time that a judge does something that is not technically legal because they know that the aggrieved party isn't going to do anything about it.

This happens constantly in my wife's family law practice. Judges will award relief or grant orders with full knowledge that complying with the improper order will cost less than an appeal (which requires attorney time, appeal filing fees, and a hugely expensive trial transcript).

Sometimes mercurial judges get unelected, sometimes they don't.

[Nengjanggo]

Greetings:
If you're doing a philosophical approach, I like both Althusser's Ideology and Ideological State Apparatusses and Foucault's Discipline and Punish. Each of these, in its own way, turns the standard framework of thinking about the law and its relationship to the citizenry on its head.

...

This is very much a lower division course and I'm trying to focus on stuff that's more accessible and immediately exciting than Focault (in my experience) is. I'm actually not going to spend much time talking about the nature of law at all.

One of the big issues in the class (and the one that got me wondering about this) is the duty to obey the law. This requires talking about laws that tell people to do bad things (since those are the obvious ones to disobey). In my experience, students often give Jim Crow laws and other segregation related laws as examples of these. The most obvious directive these laws give are things like "Don't sit on the front of the bus," so it isn't obvious that these laws are commanding you to do something wrong (it isn't obviously wrong to sit in the back of a bus). If you want to think of the law just in terms of commands, you either need a more subtle understanding of what makes a command wrong, or you want to look for a command that is more clearly wrong (or both). One way to go is to say that the law commands judges to do something wrong, which is to put someone in prison for sitting in the front of a bus. So I was wondering about the extent to which the law really commands this -- does it in fact back up this command with a threat?


These other examples of judges blatantly giving bad orders are really interesting. We're also going to talk about whether or not judges have a duty to give what they take to be legally correct judgments, so it will be interesting to point out that they sometimes do not (although the main question in my mind is "Should they?" not "Do they?").