Public defenders, sentencing, and, (guess what) class

I am sure that the Blogosphere will be blogging about this op-ed by Judge Morris Hoffman, who conducted an empirical study which analyzed sentences handed out to people represented by public defenders v. privately retained counsel. SL&P already comments here.

At first I thought that Judge Hoffman had been mislead by his economist friends. But, then now I am beginning to think that the factors used in sentencing are predisposed to the rich. I am sure Hoffman is not going to say, “Public defenders are incompetent,” in fact he says the opposite, or “Judges, including myself, are incompetent and are biased against public defenders.” (I think the days of this are past in most, but not all, jurisdictions.)

Instead, I think reason for this is not because of any bad-faith or incompetence. Just as law enforcement and charging decisions tend to favor the rich (and don’t show up on his survey), all sentencing guidelines tend to take positively analyze behavior of the rich and middle class. The ability to get out on bond on get into some sort of treatment program favors the rich. Rich peoples’ crimes generally do not involve.  Of course I say that most trial court judges and public defenders are not acting in bad faith because I know quite a few of them, and they assured me that they act in good faith.

For example, in a run-of-the mill vehicular manslaughter case (which usually involve booze), a middle-class or richer defendant will be able to post bail and check himself into some form of rehabilitation.  The substantive law of sentencing looks upon this kindly.  Poor people are less likely to be able to post a bond, yet alone construct their own rehabilitation pre-sentencing.  (In Federal terms, we call this comment 1 to U.S.S.G. § 3E1(a).  Don’t get me wrong, 3E1 is a great section and shows that the USSC was doing something positive, but this “rehabilitation” provision is inherently biased in favor defendants.  (Granted, there are not many federal vehicular manslaughter cases, but I am trying to speak in as broad as possible terms.)

On a more general level, society favors the actions of rich people.  After all, most people do want to be rich, and look up to people with the means to do things.  When rich people stray from the straight and arrow and are deemed to have crossed outside the range of acceptable behavior and are found guilty (apparently public defenders have an edge in trial practice), their other behavior is less subject to societal condemnation.  As a few AUSAs have rightly pointed out during sentencing hearings, rich people are encouraged via other laws (in fact, practically required by their culture) to give to charity, whereas poor people don’t have the means to do so.  Rich people, even those who are downright evil, are benefitted by a history of charitable giving at sentencing.

Anyway, let’s consider some more issues:  1) have more in common with judges then poor people, so judges will understand any mitigating factors better (whether they admit it or not); and 2) prosecutors are generally more sympathetic to people with attributes of the middle class (i.e. going to school, working at a steady job, etc.)

No judge is likely to think that he has “seen it all” in the rare times that white-collar criminals come before him at sentencing.  After all, a middle-class person’s life is so much more complex then a poor person’s.  This person has a history of college attendance, a family, houses, and probably prominent or semi-prominent people supporting him.

Finally, I have to say that I am glad that the cell-phone video of Saddam’s execution has caused so much hand-wringing and debate over the virtue of the death penalty in general, and the death penalty in this case. But, if you are amongst the seven people that have not seen the Saddam Execution Video, here is a re-mix of it. Sure, it is tacky, but since people were screaming for his execution (and delight in executing people in other jurisdictions), I figure that there is nothing
inherently wrong with setting it to that tune from Benny Hill, because nobody was taking the legal aspects of this seriously, anyway.