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Why People Are Skeptical of Judicial Discretion in Sentencing:

Here's the story:

Wednesday [Vermont trial court Judge Edward Cashman] sentenced child rapist Mark Hulett to 60 days in jail. Hulett admitted he raped a little girl countless times when she was between 7 and 10 years old.

Prosecutors said Hulett deserved at least 8 years in prison in part as punishment.

But Judge Cashman said the 60-day sentence guaranteed that Hulett would get into sex offender rehabilitation quickly or face a possible life sentence. He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can't get treatment until he's out of jail.

And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment. . . .

Republican lawmakers have scheduled a press conference for tomorrow to call for mandatory minimum sentences. That's a direct response to Judge Cashman's ruling. . . .

Some Republicans have started calls for Cashman's removal from the bench.

But they may have to until Judge Cashman's six-year retention hearings in March 2007. Legal experts say it is highly unlikely his sentencing decision would qualify as an impeachable offense. . . .

I understand the appeal of giving judges a great deal of sentencing flexibility: Different offenders are different, and sentencing guidelines schemes tend to omit some factors that might in some cases yield a juster result.

But flexibility means you sometimes get manifestly unjust results such as this -- and sometimes unjust results in the other direction, too. What's more, you get highly unequal treatment. First, this child molester lucked out because he got into Judge Cashman's court, while other criminals might be unlucky because they get into an unusually harsh judge's court. Second, discretionary black-box here's-how-I-feel-about-it judgments are especially likely to be influenced, in many instances, by impermissible factors, such as the offender's race, the offender's sex, the degree to which the judge feels social affinity for the offender, or the degree to which the judge feels social affinity for the victim. Our feelings of pity, mercy, and sympathy, as well as our feelings of outrage, are often colored (perhaps even subconsciously rather than deliberately) by such factors, especially when they bear on the connection we feel to the parties.

On balance, it seems to me that judicial sentencing discretion needs to be cabined, and sentences -- like the definitions of the offenses -- made more matters of the rule of law, rather than of rule by whatever penological theory each particular judge "believes in," or by whatever attitudes the judge has about a particular crime or a particular offender. And while of course the sentencing ranges can be misset (the federal guidelines were faulted for being too harsh in many instances, though I have no firm opinion on the subject), at least the guidelines provide an opportunity for deliberation, both democratic and bureaucratic, about what the right settings should be. Not so with "here's what I as the judge think you should be sentenced to."

(Note that across-the-board mandatory minimums lack many of the advantages of guidelines, since they usually turn on no or very few factors. Guidelines include their own minimums, but those minimums are more calibrated to the particulars of each offense, such as the offender's criminal history, the severity of this particular instance of the offense, and the like. There's also a separate debate over what sorts of escape hatches guidelines should have for the truly unusual cases; but it's much better to limit judges' discretion, subject to a rarely used escape hatch that will often be reviewable on appeal, than to leave the matter entirely to the judge.)

Hans Bader (mail):
This is why the Supreme Court's decisions in Booker and Fanfan making the Federal Sentencing Guidelines advisory rather than binding were a tragedy, even though the Guidelines were not perfect (too harsh in the area of drugs).

Sentences vary wildly from judge to judge based on ideology. And even defendants before the same judge are often treated differently based on sex, physical appearance, and (for some non-capital crimes) race.

For example, there is a ton of statistical evidence that gender bias exists in sentencing. For example, wives who kill their husbands without provocation get only 7 years in prison, compared to 17 years for husbands who kill their wives.

The Sentencing Guidelines reduced such disparities, although they did not eliminate them.
1.6.2006 12:56pm
Mucus Maximus:
A judge who "no longer believes in punishment" should resign. What does he think his raison d'etre is if he is unwilling to punish the guilty?
1.6.2006 1:01pm
Ex-Fed (mail) (www):
First, if Vermont is like many jurisdictions, it might have a statute requiring judges to consider a list of factors in determining a sentence. Were I the prosecutor here, I might be tempted to file a long-shot appeal arguing that the judge has, in effect, abdicated part of his judicial function and refused to consider at least one of the factors -- punishment. It's such an unpalatable sentence that you might get an (unpublished) decision out of it. Freakish cases make bad law.

My experiences with the federal guidelines leave me skeptical that there is a long-term-workable solution that leads to a happy medium between basically unfettered discretion and rigid guidelines. First, bear in mind the line of Supreme Court cases culiminating in Booker that make most guidelines regiemes increasingly impractical, as the cases require the factors being fed into the guidelines hopper to be admitted or found by a jury (or else simply yield a "recommendation," as with the post-Booker guidelines). Second, the experience with the federal guidelines has mostly been about judges trying to thwart them. I would expect that to continue to be the experience, and that judges like the one here will simply find ways to couch their decisions in the magic words that trigger the various departures, escape hatches, etc. Bomb always wins the contest with armor, and residual discretion, IMO, always wins the contest with attempts to confine it.
1.6.2006 1:02pm
Noah Klein (mail):
Professor Volokh:

I, as I think everyone who will post on this subject, finds the sentence and the reasoning behind it appalling.

I have for a long time felt that mandatory guidelines were wrong, because it leads to circumscription of a judges role, but also it does not allow for a judge to place the appropriate sentence, whether more severe or less severe than what the guidelines mandate. This case will definately make me think twice about that opinion.

Yet, I wanted to ask you if you thought that the judge's statement that he no longer believes in punishment would be grounds for impeachment, since he no longer appears willing to do the job given to him?

Also, can this case be overturned on appeal, because I would think that rape has a minimum sentence of a certain number of years?

Noah
1.6.2006 1:06pm
Hans Bader (mail):
The U.S. Sentencing Commission found that a lot of arbitrary disparities in sentencing existed between various classes of defendants.

For example, they found that female felons are given much more lenient sentences than similarly situated male felons, without any justification.

Studies (discussed in the Washington Post's Outlook section) have found that when given the power to set sentences, jurors massively discriminate against homely defendants. Physical appearance may be only skin deep, but it can cost you years of your liberty.

Mandatory minimums, for all their problems, reduce this risk. In one Ninth Circuit case, the controversial trial judge Jack Tanner, once rated the worst judge in America, gave a woman who permanently disfigured, and nearly killed, her estranged husband (for having the audacity to seek custody of their kids) one day in jail, saying it was a dispute between "consenting adults."

But her sentence was grudgingly increased to at least five years by the en banc Ninth Circuit (even though it sought to mitigate the seriousness of her crime on the grounds that her husband's motion for custody caused her a serious emotional disturbance), because of a mandatory minimum sentence for using a firearm in commission of a felony on federal land, a mandatory minimum that the Ninth Circuit was compelled to apply.

(Several dissenting judges on the Ninth Circuit thought that the sentence should be further increased because of the obvious gender bias of the trial judge and the Ninth Circuit majority in excusing domestic violence on the ground that the husband had sought custody of his kids).

The mandatory minimum sentence was the only thing that guaranteed that the committer of a serious violent crime did any serious time.
1.6.2006 1:07pm
Noah Klein (mail):
Hans:

At the same time, thousands of people have lost their liberty for sometimes 10 years or more for small victimless crimes that any judge with the discretion to limit the jail time would. Mandatory minimums often leads to a culture of crime and increased recidivism. I think the goal of all people in our judicial system should be to ensure that crime is sufficiently punished, but also that people do not go back to their criminal ways.

Noah
1.6.2006 1:14pm
Cathy (mail) (www):
I don't see that the judge had anything to do with any manifest unfairness in the situation.

"He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can't get treatment until he's out of jail."

Talk about a sentencing guideline! Holding any rehabilitation hostage to punishment. If we want to talk about injustice, rules like these epitomize it. It's good that the judge had some discretion to attempt to mitigate it. If there are weaknesses with the outcome, it's because the judge didn't have enough.
1.6.2006 1:20pm
Dem:
It always baffles me when people ignore the fact that the guidelines shift discretion--from the judge to the proosecutor--rather than eliminate it entirely. At least a judge's decision is subject to review (even if the review standard is lenient). A prosecutor's charging decisions are completely discretionary. This is especially problematic when one considers the disparities between state and federal sentencing for many offenses. There have been plenty of cases where members of the same drug conspiracy (with a similar level of involvement) received wildly different sentences just because the feds decided to charge some and left the other to the state.

So, while I understand the motivation for eliminating disparity and discretion in sentencing, I think you are fooling yourself if you think the pre-Booker federal guidelines really do that.
1.6.2006 1:29pm
roy solomon (mail):
What do we need judges for? Just assign a numerical value to every possible aggravating and mitigating circumstance, and have the computer spit out a sentence. No possible bias, and save money too.
1.6.2006 1:33pm
Cathy (mail) (www):
Furthermore, this:

"And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment. . . ."

is a spurious paraphrase. Before we rush to judge the judge, we should know *exactly* what he said and why. I would bet that it was an opinion along the lines that punishment for punishment's sake is an ineffective way of dealing with crime, an extremely reasonable opinion many others have articulated and one that he may likely have formed himself through all his years of judicial experience.
1.6.2006 1:34pm
Apu (mail):
Instead of calling for less discretion by sentencing judges, why isn't this case a call for increased appellate review? Post-Booker, I bet most federal courts of appeals would vacate this sentence as "unreasonable." That's a far better result than mandatory minimums, which results in some real terrible results which no court can fix. A federal defendant in Texas recently received a 15-year mandatory minimum because the police found a single bullet in an ashtray in his car after a traffic stop, and he had other felony convictions in the late 1980's. The district court judge imposed sentence well below the guidelines -- at the mandatory minimum -- but had no authority to go below 15 years. That's a tragedy too.
1.6.2006 1:38pm
John1 (mail):
Just throwing it out there, why not direct elections of judges? If a sentence is called into question, the judge defends his decision. No 10yr jail times for half an ounce of pot, and no unaccountable "creative" sentencing.
1.6.2006 1:43pm
classmatewearingyarmulka (mail) (www):
Cathy- the point of jail is to punish the criminal and protect society from him. The man is rapist. In 60 days he will be free to rape again. Rehabilitation is fine, for say, drug users. But for violent crime, we've got to protect the rest of society by locking animals like this guy up.
1.6.2006 1:50pm
Doug B. (mail) (www):
This is a strong post, Eugene, though I would like to see some coverage of the many, many converse cases in which you might title the post "Why People Are Troubled by the Lack of Discretion in Sentencing." I do not recall seeing any posts concerning, for example, the Angelos case (now on appealing in the 10th Circuit), in which Judge Paul Cassell felt compelled to impose a 55 year sentence despite his firm belief (and the belief of the jury he polled) that a sentence of 18 years would be sufficient for utilitairan goals and far more just.

Indeed, this post highlights a phenomenon that I think you ought to spend more time examining: namely the ways in which our legal and political structure now creates one-way ratchets so that one seemingly too lenient sentence prompts immediate legislative action, but many seemingly too harsh sentences rarely if ever generates legislative reform (see, e.g., the debate over crack sentences for mules in the federal system).

Especially given the collection of avowed libertarians who make up this Consipracy, I am repeatedly disappointed there is not more discussion of the harms of over-incarceration in this space. There is no greater affront to liberty, by my lights, than when the government locks someone up in a small cage for longer than it should. I often wonder why the small government concerns of libertarians do not always find full expression when considering government's power to harm its citizens through excessive punishments?
1.6.2006 2:05pm
KeithK (mail):
This case and some of the examples that some have posted point out that there are injustices in both directions. Judicial discretion allows this rapist to get off with negligible punishment for a heinous crime while mandatory minimums sometimes put people away for a long time unjustly. Personally I'd prefer mandatory, highly prescribed sentences with very little judicial discretion BUT with a more robust role for the executive branch in righting sentencing injustice. It seems to me that we've gotten to the point where with the exeption of capital cases the executive clemency power has largely been abdicated in favor of appelate review. I'd rather have trial judges and appeals courts deciding objective factors of the law and have an elected official decide whether there are subjective reasons why a sentence should be reduced. There's room for abuse on both sides, but it seems a lot easier to hold a governor accountable (through elections) than a judge.
1.6.2006 2:05pm
Dave:
The problem with mandatory minimums is that they become a political football, and politicians compete with one another to raise the minimums only for politically important crimes. I've decided that Congress can't really be trusted with this, either.

Mandatory minimum for selling marijuana and posessing a gun (first conviction): 757 months.
Mandatory minimum sentence for raping a 10-year-old: 135 months.
Mandatory minimum sentence for aircraft hijacking: 293 months.

These laws are deeply flawed. This case is just one example of the unjust outcomes they require. Contrary to the Government’s assertion during argument, Congress certainly did not intend for a first time marijuana dealer possessing a gun to serve a longer sentence than a rapist. This case is a classic example of why judges should have the authority to consider individual factors in sentencing.


I've heard horror stories about violent criminals being released early to make room for minor first-time drug offenders in prisons because only rapists and murderers are allowed out early.

Dave
1.6.2006 2:06pm
Cathy (mail) (www):
"Cathy- the point of jail is to punish the criminal and protect society from him."

This is A purpose. It is not the ONLY purpose.

I've noted elsewhere that I tend to agree the punitive aspect of the sentence should have been stiffer. But the rush to castigate the judge fails to recognize the unfortunate limitations placed upon him that failed to allow for a truly just result. We should really be scrutinizing them instead of pillorying the judge himself. Especially on such a sparse record devoid of any significant context.
1.6.2006 2:17pm
Jason Fliegel (mail):
A little more information can be found here.

In particular, I want to highlight these passages from the article:


In court Wednesday, Judge Edward Cashman said under the sentence Hulett quickly would receive treatment, more important than a punitive prison term. Hulett, who has no prior criminal record, was ineligible for counseling while incarcerated because Corrections deemed him a low risk to offend again.

The only way Hulett could receive treatment soon, Cashman said, was a short time in custody followed by lengthy state supervision and counseling. Cashman worried that without treatment Hulett could be dangerous after his release, which was inevitable under sentencing proposals by both prosecutors and Corrections. Prosecutor Nicole Andreson asked for an eight-year minimum, while Corrections recommended a three-year term.

Corrections reserves sex-offender treatment for higher-risk criminals but did want Hulett punished, Hofmann said in a phone interview from the Statehouse, where, he said, numerous legislators were complaining to him about the sentence and the department's decision denying Hulett in-prison counseling.

...

The girl's family reiterated its anger Thursday -- toward Cashman, Corrections and Hulett.

"I understand what the judge did, trying to get help for him, but they need to change the system in the jail so they can give help to anyone," said the girl's stepfather, whom The Burlington Free Press is not naming to protect the victim's identity. "Sixty days will not do anything. He needs help in jail, not out of jail. I want him to get help, but I'll never forgive him for what he did to my daughter.


60 days in jail for child rape is a joke, but so, for that matter, is 3 years or 8 years. And I'd rather give the guy whatever sentence is most likely to prevent him from raping another kid -- the one that gets him counseling -- than just lock him up for a few years then toss him back on the street.
1.6.2006 2:24pm
Richard Bellamy (mail):
Dem has it right.

When a judge does this, it makes the papers and outrage ensues. Therefore, it doesn't happen much.

When a prosecutor charges one guy for a 60-year-punishment crime and the other (who did the same thing) for a 1-year-punishment crime, nobody even notices enough to complain.

Discretionary decisions should be open an public, not made in back rooms as mandatory-minimum-laws allow.
1.6.2006 2:30pm
Unnamed Co-Conspirator:
Rehabilitation, Cathy? You don't "rehabilitate" child rapists.

I'm surprised that no one has remarked on the fact that the prosecutor thought that repeatedly raping a little girl over a period of 3 years deserved only 8 years in jail. When the law fails to provide justice, even honest, otherwise law-abiding citizens will seek justice outside the law. Perhaps the judge understood this and was sympathetic to the outrage of the girl's family. 8 years is long enough, perhaps, for anger to cool, but 60 days probably is not. When the 60-day sentence is over, the child rapist will no longer be in the protective custody of the State of Vermont.
1.6.2006 2:30pm
Anderson (mail) (www):
Cathy is right and her critics are wrong.

Note that the *State* classified this guy as a "low risk offender." Not the judge.

So apparently our visceral feelings about child rape aren't shared by the Corrections Dep't, or at least they're suspended in favor of other considerations.

Tying judges' hands leads to results like this.
1.6.2006 2:32pm
abayrat:
Unnamed Co-Conspirator

Your are right. Child molesters cannot be rehabilitated. We in Florida found that out when a repeat offender on parole kidnapped, raped, and murdered Jessica Lunsford. The result was a new law with a mandatory 25-year minimum for molesting a child under the age of 12.

As for the State classifying this guy as a "low risk offender “ was most likely because there was only one victim and it was his first offense. Despite the fact he molested her “countless times” One good thing is this will speed along the passage of Jessica’s Law in Vermont.
1.6.2006 2:45pm
Steve:
Look, SOMEONE has to make the call on sentencing. The anecdotal fact that a judge made a bad, though reviewable, decision, is hardly reason enough to conclude that someone else can decide the appropriate sentence better than judges can.

Some states have this thing called parole. The way parole typically works is that the defendant gets sentenced to a term of 8 to 15 years, and that means that after 8 years (minus time for good behavior, etc), they start getting annual parole hearings. The parole board gets the "discretion" to decide when they get out, although obviously they're out after 15 years no matter what.

Except, what happens in reality? Some criminal gets an early parole and proceeds to go out and kill again, and public outrage is levied at the parole board. Just like some people are ready to take away discretion from judges because of one or two bad results, people want to take away discretion from the parole board because they aren't perfect. We don't have parole in the federal system any more.

But if you take discretion away from the parole board, you haven't eliminated discretion altogether. You've simply said that instead of the parole board being able to interview the prisoner in 2005 and judge whether he's ready to enter society yet, the sentencing judge needs to look into his crystal ball in 1995 and determine what the criminal will look like in 2005. Even though the parole board isn't perfect, putting it back on the sentencing judge hardly makes the correct result more likely.

Others have already noted that taking discretion away from the sentencing judge just means the prosecutor has all the discretion. Or, alternatively, the statute writers get to come up with a "one size fits all" prescription that fits each and every future violator of their statute.

Heck, if we really want to make sure no one gets too light a sentence, or commits a crime after being released, we should return to the old English system and simply make death the punishment for every felony. Sadly, it takes an absurd suggestion like this one for many people to realize that there is such a thing as being TOO tough on crime, and even then, lots of people come up with the understandable reaction that death is too good for a child rapist.

Our goal should be to make the system better, not simply tougher. Yet every time someone gets off easy, the response is simply to get tougher on everyone across the board. More bad laws have been made in the name of being "tough on crime" than perhaps any other proposition.
1.6.2006 2:51pm
John Jenkins (mail):
Anderson, the judge was not hamstrung by the Corrections Department. The judge could have sentenced the guy to life (rendering rehabilitation moot if it's LWOP). This isn't a low-level junkie who shouldn't be in jail anyway. It's a child-rapist.

Apparently the judge thought it was more important to get therapy for the child-rapist than to seek vindication for the public's right to be free from the depradations of child-rapists (the D.A. does NOT vindicate the rights of the victim as such, but the rights of society to be free from lawless behavior).

Whatever purpose you personally believe the penal system serves (whether punishment or deterrrence), this sentence can't possibly accomplish it. Of course, if they don't segregate him from the other prisoners, 60 days is a death sentence.
1.6.2006 2:55pm
Salieri:

Apparently the judge thought it was more important to get therapy for the child-rapist than to seek vindication for the public's right to be free from the depradations of child-rapists


Except that the purpose of therapy is to stop the child rapist from molesting children anymore. If you think therapy is ineffective, that's one thing, but it's silly to imagine the therapy was ordered to benefit the criminal at society's expense.
1.6.2006 2:58pm
Thorley Winston (mail) (www):
Does anyone know if Superior Court judges in Vermont are elected or appointed?
1.6.2006 2:59pm
classmatewearingyarmulka (mail) (www):
I don't care what the state "classified" the rapist as.

I'm sorry but the need of society to be be protected from this monster outweighs the need for him to be rehabilitated.
1.6.2006 3:02pm
Salieri:
Rehabilitation does protect society from "monsters". In fact, it's the only sure way outside of death and life without parole. Letting a rapist out of prison after 8, 15, or 35 years still means society is going to be vulnerable to that person again. It just delays the problem. Rehabilitating a criminal removes the threat from society. If you want to argue that therapy can't rehabilitate this criminal, fine. But you have to come up with real evidence, not just stories of times when it didn't work.
1.6.2006 3:07pm
John Jenkins (mail):
Salieri, It's my opinion that (1) therapy is ineffective for child-rapists and (2) the purpose of the penal system is to punish. With (2) there are no other considerations (and I would question the efficacy of compulsory therapy in any event having been involved with indigent defense for a few years now and seeing how ineffective it is). The solution is decriminalization of a whole host of things and tough punishments for truly criminal acts like, say, child-rape to get people who actually do need treatment (like addicts) out of the justice system entirely. This man doesn't need therapy. He needs an 8x8 for the rest of his life.
1.6.2006 3:07pm
Guest2 (mail):
If one of your students tried to use this vaguely worded, practically-guaranteed-to-be-misleading one-off local news story as a piece of substantive evidence supporting her position in a seminar paper or law review article, would you be more likely to give her an A+, or an F? You would give her an F. Because it's lame.
1.6.2006 3:12pm
Salieri:
John Jenkins, regarding your first point, why do you believe therapy is ineffective? Do you have much experience with therapy and rehabilitation, or know of research on the subject? I suspect you may be right, but I don't know anything about it, and the judge may have reason to believe therapy would work.

As for your second point, I personally believe that the penal system should be used to make society safer, whether that involves punishment or not. I accept that if you think its only purpose is punitive then you'd have to disagree with the judge. However, I don't really see 8 years of prison for child rapists to be in the best interests of society.
1.6.2006 3:18pm
abayrat:
Salieri

Should he have gotten more or less then 8 years?
1.6.2006 3:24pm
Bob Loblaw (www):

Indeed, this post highlights a phenomenon that I think you ought to spend more time examining: namely the ways in which our legal and political structure now creates one-way ratchets so that one seemingly too lenient sentence prompts immediate legislative action, but many seemingly too harsh sentences rarely if ever generates legislative reform (see, e.g., the debate over crack sentences for mules in the federal system).
I second the motion.
1.6.2006 3:26pm
Chris B (mail):
A question to those defending this sentence ...

Where does the article indicate that he isn't eligible for counseling and rehabilitiion if he serves a sentence of more than 60 days?
1.6.2006 3:26pm
Master Shake:
Something along the lines of Chris B's question, I didn't really understand this sentence:

But Judge Cashman said the 60-day sentence guaranteed that Hulett would get into sex offender rehabilitation quickly or face a possible life sentence.
It was either sixty days or possible life sentence?
1.6.2006 3:30pm
Chris B (mail):
addendum ....

I do understand he won't get counseling until *after* he serves the time.

So if he serves 8 years, he gets counseling after 8 years of being unable to rape little girls. What is so important about him getting counseling *in jail*?
1.6.2006 3:30pm
John Jenkins (mail):
The way the Vermont DoC appears to work is that those who are "Low Risk" offenders, aren't treated while in jail. He would have been eligible for treatment when he was released from jail. I can't find any extensive information online, however, but that's the way I read it. I'm guessing the possible sentence was phrased "to a term of up to life imprisonment" or something similar (though I can't imagine there not being a 1 year minimum for a felony).

The story describes it as a 60-day sentence and that just can't be right. What it looks like is that he was given a life sentence with all but the first sixty days suspended and a requirement that he get treatment. I still don't think that's right, but I don't think the sentence is being reported accurately because I can't see how what is obviously a felony would be punished with an actual sentence of less than one year.
1.6.2006 3:36pm
anonymous22:
I'm sure Judge Cashman can afford to live in a nice, isolated neighborhood where he doesn't have to worry about crime. So it is easy to see why he doesn't believe in the utility of punishing criminals; those poor people will keep complaining about crime anyways.

The result of all of this will be increased inequality. But the intelligensia came to grips with inequality decades ago and don't see a solution.
1.6.2006 3:37pm
John Jenkins (mail):
Here's the statute under which I think the defendant was charged (in relevant part)
§ 3253 Aggravated sexual assault

(a) A person commits the crime of aggravated sexual assault if the person commits sexual assault under any one of the following circumstances:

...

(8) The victim is under the age of 10 and the actor is at least 18 years of age.

...

(b) A person who commits the crime of aggravated sexual assault shall be imprisoned up to and including life or fined not more than $50,000.00, or both. No person who receives a minimum sentence under this section shall be eligible for early release or furlough until the expiration of the minimum sentence imposed.

13 Vt. Stat. Ann. § 3253
It looks like there really isn't a minimum felony sentence in Vermont. Hey, look on the bright side: he has to serve the 60 days day for day.
1.6.2006 3:43pm
classmatewearingyarmulka (mail) (www):
See United States v. Bergman for why we imprison criminals.
1.6.2006 3:45pm
corngrower:
Cathy

You may agree with Judge. Your opinion, you are welcomed to.

But this a lawyer that said, 'screw it. I dont care about the law, I dont care about what laws have been enacted by those elected to serve the people. I only care about my feelings'. He should be thrown in prison by the President. Hell he dont give a hoot for the law, I'm guessing he would not complain about a little bend of the Constitution
1.6.2006 3:50pm
Anderson (mail) (www):
JJ, this child rapist was, somehow, a "low risk offender." I think your complaints go well beyond this one judge.

Anyway, I can think the judge made the wrong choice while placing more blame on a system that forces him to make such a senseless choice (why NOT treat someone while incarcerated?).

And as many have noted, the facts behind this article are hard to discern. Let's find out what really happened. Remember how great it was when those 12 of 13 miners were found alive?
1.6.2006 4:00pm
Eric Muller (www):
I find this post to be a bit like one that links to an anecdote about an airplane crash and titles itself "Why People Are Afraid To Fly."

The sentence in this case is an outrage, but my experience tells me it is also an extraordinary aberration--the sort of aberration that is more appropriately correctable by the nuanced remedy of appellate reversal than by the broad, cumbersome, and potentially dehumanizing remedy of across-the-board sentencing regulations.
1.6.2006 4:04pm
John Jenkins (mail):
Anderson, I've been trying to research the case and can't find much using my (limited) available resources. I agree with Prof. Muller that this case is an aberration (and I think that the BIGGER problem is oversentencing rather than undersentencing), but this is one that is SO aberrant that it really does defy logic. Again, the "low risk" assessment merely had to do with when or where the defendant could receive treatment. It had *nothing* to do with the crime for which he was charged. I actually have two gripes in this case. The craven judge who sentenced the guy to 60 days and used therapy as the excuse (remember that the judge is quoted as saying he didn't believe in punishment anymore) and the legislature who somehow believes that aggravated sexual assault doesn't deserve some sort of minimum sentence (which should be present instead of the day for day provision). I'm not arguing for any across the board remedy (sentencing guidelines for all felonies, for example), but we're talking about aggravated sexual assault, a crime that carries no minimum punishment... That strikes me as odd and incorrect.

I don't think this case can be reversed in any event (though oversentencing can be, but rarely is). It would seem that having been convicted and sentenced, unless there is some defect in the trial that the defendant wants to raise to have the conviction overturned, I can't see how the STATE can get a ruling except as a reserved question of law, and even then, because of the wording of the statute the judge was within his discretion in sentencing the guy to 60 days.

I'd like to think that the judge could have given a sentence of life and ordered that the defendant receive treatment in prison, if the judge thought that was necessary, and to hell with DoC policies.
1.6.2006 4:13pm
Dilan Esper (mail) (www):
My response to Professor Volokh's post is relatively simple. Like most liberals, I believe that limiting campaign expenditures to ensure a more level playing field would be a very good thing to do to make the political system less tilted towards moneyed interests. However, like the Supreme Court, I belive that such a reform would be unconstitutional.

Putting sentencing in the hands of sentencing commissions may produce better sentences. I don't know for sure, but I suspect Professor Volokh has a point. It is also completely unconstitutional, because we have a right to have a jury decide any factual issue that can increase a sentence.

We could probably have more accurate trials as to guilt and innocence, in the aggregate, by having bench trials rather than jury trials. But given that the Constitution requires a jury (and there are good, historical and practical reasons for this provision), we can't do it.
1.6.2006 4:30pm
Hattio (mail):
Does this have to be aggravated sexual assault? I know that the fact that we have the perpetrator's name implies that he's over 18 now, but does that mean he was over 18 at the time? I mean if the perpetrator was 12, and is now 20, this sentence makes a little more sense. I just get the feeling there has to be something more to the story.
1.6.2006 4:34pm
John Jenkins (mail):
Well, since life was mentioned as a possibility, it does have to be aggravated sexual assault because the sexual assault statute provides for a maximum of 25 years.
1.6.2006 4:38pm
anonymous22:
Dilan,
The constitution was not interpreted to mandate jury trials until 1968. Prior to that it was common knowledge that federalism required that federal courts not dictate to state courts what procedures they should use in their criminal trials. The "incorporation" of the jury trial clause was utter invention with no significant legal foundations. But judicial rhetoric and bluster unfortunately obfusticates many issues.
1.6.2006 4:38pm
Bob Loblaw (www):
Eric Muller-

(warning - off topic) I just was reading your series on "defense of internment" in your IsThatLegal blog, and noticed the preposition humor you began with (I mean with which you began). It reminded me of this classic from B&B Do America...


Bork rushes up to Flemming with a paper.

BORK
Chief, you know that guy whose camper they
were whacking off in?

FLEMMING
(appalled)
Bork! You are a federal agent. You
represent the United States Government...
Never end a sentence with a preposition.
Try again.

BORK
Oh, ah... You know that guy in whose
camper they... I mean that guy off in
whose camper they were whacking?

FLEMMING
That's better. Yes?
1.6.2006 4:39pm
John Jenkins (mail):
The defendant appears to be 34 years old.
1.6.2006 4:42pm
Sebastian holsclaw (mail):


Corrections reserves sex-offender treatment for higher-risk criminals but did want Hulett punished, Hofmann said in a phone interview from the Statehouse, where, he said, numerous legislators were complaining to him about the sentence and the department's decision denying Hulett in-prison counseling.



The problem with hanging your hat on this to defend the judge is that unless Vermont is a very odd state, he could have worked for a reclassification.
1.6.2006 4:47pm
jvarisco:
Let's assume that the treatment would actually work.

We could stick him in jail for 10 years, in a violent environment with a bunch of criminals. He will then get out and rape another little girl. Or instead we could give him a small sentence, and then treat him, so that no one else is harmed. The harm to the first girl has been completed, it won't hurt her any more or less if he gets out sooner, but if there is a possibility of saving another potential innocent that has to take priority. If there's no chance of locking him up forever, the goal has to be preventing him from re-offending.

I don't happen to think sex offenders can be treated, I don't think we should ever let any of them out. But that needs to be put into the law; as long as the law allows for treatment, the sentence makes sense.
1.6.2006 4:49pm
Clayton E. Cramer (mail) (www):

And I'd rather give the guy whatever sentence is most likely to prevent him from raping another kid -- the one that gets him counseling -- than just lock him up for a few years then toss him back on the street.
What makes you so confident that counseling is going to prevent him from raping another kid? Hey, when he's done, you can give him in a room in your house (assuming that you have a seven year old daughter living with you). Or does that make you a bit less confident in the ability of counseling to correct this problem?
1.6.2006 4:50pm
Steve:
Well, if the standard is that every convicted criminal must be given a room in my house upon release, then I don't see much choice except to execute them all. I doubt that's a very intelligent approach to formulating the penal code, though.

On the other hand, Prof. Volokh may approve since it mirrors his "Why am I dying from this disease my mommy gave me?" argument from the other day in terms of grounding the law in emotion.
1.6.2006 5:03pm
Clayton E. Cramer (mail) (www):
Salieri writes:
However, I don't really see 8 years of prison for child rapists to be in the best interests of society.
Sixty day sentences for raping a child will guarantee lynching and vigilantism. Does the name Ellie Nesler ring any bells? She shot and killed Daniel Mark Driver, who was accused of molesting her son, because he had already been convicted of child molestation--but was given a very light sentence.

You see, molesting children is, for practical purposes, not a very serious crime in California. I know a woman who called the police when she was about 15, to report that her father was raping her. (This was in the Bay Area.) Her father was convicted--and given probation. For three years, he wasn't allowed to live in the house with his victim, or her two younger sisters. When probation was over, he moved back in (she moved out). The victim's mother never did understand what all the fuss was about--that's what her father did to her at that age.

I know another woman whose son was molested in Sonoma County. There was no question about it; there was physical evidence involving a stretched anus. At first, the son identified the father (who was by then divorced from the mother). Unsurprisingly, he recanted at a later stage of the criminal process, having perhaps been influenced by the father (who still had visitation rights). Eventually, the courts gave the father full custody rights! (He had a good job, made lots of money, and I guess was regarded as a better parent.)

My wife and I have talked to so many victims we knew from living in California. (I suspect that it isn't much better elsewhere.) It is heart-breaking to see the devastation that it leaves behind.

There comes a certain moment when judges refusing to treat child molestation as a serious crime are going to create a strong incentive for popular justice--with all the serious problems that come with that: false accusations; insufficient detachment to properly examine the evidence; no chance for appeal.

I know that in some circles, there is real bewilderment that Americans are so narrow-minded about adults having sex with children, but the rage is real. If you don't like it, perhaps you should consider Bertold Brecht's witty observation, "Would it not be easier for the government to dissolve the people and elect another?"
1.6.2006 5:09pm
Frank Drackmann (mail):
Judges and parole boards arent always doin these criminals a favor when they let them off light or out early. I see reports every day of criminals on parole who get murdered, they'd probably have been better off stayin in jail a while longer rehabilitating.
1.6.2006 5:13pm
Ben Coates (mail):
I went through Google News and got more detail on the case:

Boston Globe:


Cashman imposed a sentence of three years to life, suspending all but 60 days. That means Hulett could spend his life in prison, but is certain only to serve the two months.


So as some other posters predicted, he was *not* simply sentenced to 60 days for this rather serious crime, which makes the judge's decision make a lot more sense.

WorldNetDaily (a highly biased site, but I'm going out on a limb and assuming the quotes aren't fabricated)


Judge Cashman: "The one message I want to get through is that anger doesn't solve anything. It just corrodes your soul,"

The judge said that when he began 25 years ago, he handed down tough sentences but now believes "it accomplishes nothing of value."

"It doesn't make anything better; it costs us a lot of money; we create a lot of expectation, and we feed on anger,"


Giving the judge the benefit of the doubt and extrapolating from quotes I can find, I think that he disagreed with the "low risk" assessment and saw a 3 or 8 year sentence resulting in release without treatment or monitoring and that the convict would act again. This is perhaps the most satisfying outcome practical for the victim but less so for the next child he rapes.

The shorter sentence would force the corrections department's hand; they wouldn't want to be responsible for simply letting him go after two months so they'll have to do the treatment (hopefully in jail or at least some sort of psychiatric detention) and monitor the guy if/when released, at least for a while; and the convict will have the 3 to life sentence hanging over his head as motivation to cooperate.

Both the prosecutor and victim's problem with the Judge's plan appears to be that it doesn't satisfy their interest in seeing the man "pay for what he did to my baby", rather than disagreeing with the logic that it will reduce the risk to future victims.

If that really is the conflict here--if the choice really is between maximising harm to Hullet as if that somehow repairs or balances the harm he has done, and minimising the chance that another child will be harmed, then I think Judge Cashman is completely correct.
1.6.2006 5:17pm
Master Shake:
Assuming the WorldNetDaily quotes from Ben are accurate (I wince just writing those words), then the original reporting was ridiculously poor.
1.6.2006 5:26pm
Terry:
It has been said already but needs to be said again. The judge could have given a sentence that fits the crime -suspended all but 60 days does not do it - and THEN made sure he received "counseling."
1.6.2006 5:39pm
Clayton E. Cramer (mail) (www):

The shorter sentence would force the corrections department's hand; they wouldn't want to be responsible for simply letting him go after two months so they'll have to do the treatment (hopefully in jail or at least some sort of psychiatric detention) and monitor the guy if/when released, at least for a while; and the convict will have the 3 to life sentence hanging over his head as motivation to cooperate.
Oh yeah, the prospect of serious punishment is going to make him behave. And why didn't the prospect of serious punishment make him behave when he started raping a 7 year old?

What I don't think some of you understand is that if he is prison, there won't be any question about whether he is behaving himself or not, because there won't be any children for him to rape in prison. Prison isn't about making him suffer; it is about making sure that he doesn't rape any other kids.
1.6.2006 5:42pm
frankcross (mail):
This is my favorite blog, but my biggest gripe is the tendency of the conspirators to pull a press report about a legal development and treat it as a true and complete story. (Also perhaps the significance given these anecdotal stories.) The press repeatedly gets the legal story wrong.

So, this may be an outrage but the guy apparently has a possible life sentence. Does anyone know who will make the determination whether to release after 60 days and on what basis?
1.6.2006 5:54pm
John Jenkins (mail):
The release after 60 days is part of the sentence. There is no determination to be made. Whether he stays out or has to go back in for the balance depends on his behavior when he gets out.
1.6.2006 6:07pm
Woodland Critter (mail):
This appears to be gross negligence and a case of judicial malpractice and as a professional, the judge should be held personally liable for the adverse effects of his decision. Giving any future vicitms of the criminal the right to pursue civil action against the judge would prevent future occurence against future actions.
1.6.2006 6:08pm
anonymous coward:
This is the first time I've felt the need to post here anonymously. (hope it works.)I have a semantic quibble with the story,a nd I suspect that my remarks will get miscontrued.
I have some scepticism about whether this case involved rape.
Once, it's rape, twice, maybe still rape. Thousands of times, maybe there's something else going on. Sometimes rapists are able to control their victims enough to allow multiple assaults - handcuffs, or a threat to kill the mother, for example. But it is fashionable, and dead wrong, to describe all intergenerational sex as rape. I'm making a semantic point here, talking about what the right label is. Underage sex isn't arson. Calling people who have underage sex arsonists clouds the issue. I am not condoning underage sex. I'm suggesting that mislabeling it as rape or arson clouds the issue and prevents clear thinking. It unfairly stigmatizes the victim to say that's she's been raped, if she hasn't. And if she realy was raped lots of times, it misrepresents her experience to lump it in with underage sex generally. Both are serious crimes and serious social problems - but not the same crime. Precision matters here.
Now, maybe we reach the same conclusions about this case regardless of which crime is involved. Should criminals be awarded full scholarships to crime colleges? What standard of review should be used to review unpopular sentencing decisions? What are the separation of powers concerns under the Vermont constitution? The post raises a number of interesting issues which engage both people's reason and emotions. I'm suggesting we can think more clearly about those issues if we avoid misrepresenting the facts of the case.
1.6.2006 6:13pm
Master Shake:
AC - she was seven. This isn't "underaged sex".
1.6.2006 6:18pm
Steve:
Yeah, it's pretty clear that a 7-year old has no ability to formulate anything resembling consent.
1.6.2006 6:46pm
David Matthews (mail):
"Thousands of times, maybe there's something else going on."

Like what? Every time a 7-year-old "has sex with" an adult (I have to put that in quotes, because it ain't sex, ever), it's rape. I have a friend who was raped, repeatedly, over a four-year period, by her stepfather. And yes, every one of the times was "rape."

And I don't think there's any way of misconstruing your remarks.
1.6.2006 6:59pm
Laura (mail):
My daughter was taken by a man in our neighborhood and prostituted when my daughter was 12 years old. By the time I was able to find her and send the police, there were 2 pimps involved. One got 18 months less time served by the time they went to trial. The other, since they were able to link him to 4 young girls, got 12 years, or 3 years per child in a plea bargain. This also is California. 1 gram of crack is a 5 year minimum, but sexual assault, physically beating and pimping children for years (one of the girls had started with him when she was 11 years old and was 14 when the cops caught the pimp)cost him 3 years per child. I don't know about the other girls, but my child's life was destroyed (she's 20 now), at least so far. Supposedly the FBI was going to prosecute him for "involuntary servitude", a 25 year minimum per count, since he had taken underage children to Reno to pimp them there. Last I heard, a newspaper article a couple of years ago, that was still pending.
1.6.2006 11:19pm
Hp96ph (mail):
Wow! This is a fantastic debate! We should all be proud!

First and foremost, frankcross is absolutely correct. We don't know how accurate or complete the initial news reports are.

I served a brief time as a criminal prosecutor and this case bares an number of tragic similarities to a case that I worked on...hence my interest.

Mandatory minimum sentences (and accuracy in describing sentences) have their good points and their bad points. It is ludicrous for a non-violent minor drug offender to get a longer minimum sentence than a violent criminal. Sometimes it seems that the political agenda of various politicians, combined with their limited focus, results in specific attention to certain crimes (and disregard of other, more serious crimes).

We need boundaries on the discretion of judges when it comes to sentencing. This can either be handled with sentencing guidelines, or with a mechanism for review.

It looks as if the judge wanted to get the defendant into therapy as soon as possible...so he suspended most of the sentence. The scary part is that the defendant will be free to rape again. I have heard that child violators are more likely to re-offend, but I can't cite statistics. The only good that could come is that if the defendant violates the terms of his release, he could end up in prison for life...but that may be too late if there is another victim.

60 days looks like an outrage, no matter what the judge's reasoning. The classification of this defendant as a "low risk offender" is bizzare! The judge chose treatment over imprisonment...most of us probably think that the defendant should have gotten both...but it appears that if we had to choose, we would choose a long stay in prison over therapy. The judge chose differently.

Final point: Vermont judges are appointed, with periodic retention votes by the state legislature.
1.6.2006 11:42pm
Julian Morrison (mail):
The dilemma is false. This is a problem caused by government monopolization of law (you can't refuse custom to a total lemon like this), and by its imposition of binding sentences (you can't refuse to accept an injustice).

A market system of law would allow both parties to agree on a judge, and to haggle the sentence down to something both could accept. A just judge would do the most business, because both parties would recognize his sentences as proportionate.
1.7.2006 12:56am
Cheburashka (mail):
All of the anecdotes are fascinating, but seem to me rather beside the point.

After all, what is the appropriate sentence for someone who molests a 7 year old? An 8 year old? A 9 year old?

How should the sentence scale with repeat offenses on the same victim?

What's the appropriate sentence for dealing a gram of crack?

I don't have any answers to these questions. But I'm pretty sure that while we can all say "too much" or "too little" in the relative sense, none of us (and I include judges in that) has any real basis for determining in absolute terms the "just" sentence for any particular combination of offender and offense.

This is what I liked about the sentencing guidelines. The introduced the twin virtues of consistency and predictability into a system which otherwise had no virtues at all.
1.7.2006 1:37am
Gene Vilensky (mail) (www):
I think every person who has brought up the canard of the non-violent drug offender did not read Eugene's post. He wrote:

And while of course the sentencing ranges can be misset (the federal guidelines were faulted for being too harsh in many instances, though I have no firm opinion on the subject), at least the guidelines provide an opportunity for deliberation, both democratic and bureaucratic, about what the right settings should be.

The non-violent drug offender getting 5 year minimum would be an example of a guideline that is misset and if people feel that it is too harsh of a sentence, then the voters, through their elected representatives, can change the law. I write this as a libertarian, who wants all or most drug laws abolished.

The question is whether or not judges should have the discretion to change sentencing rather than whether a particular sentencing statute achieved the best result. Sure, sentencing guidelines are often wrong. But, the correct remedy to that problem is to use the democratic process to affect change. It seems as though judges in this country have free reign to do as they wish (for example, their capricious and arbitrary use of contempt of court, but that's for another time).

What is the purpose of judges? To make sure that trials are conducted in the proper manner, that evidence that does not belong does not get in, that civil liberties of the defendant are not violated, etc. But it seems that at least some kind of guidelines are necessary (e.g. no suspended sentences for child molesters).

Now, among the goals of the penal system (not the only goals) ought to be justice for the victims and making sure that he/she does not inflict his/her crimes on society for a long time. Not saying these are the only goals, but any penal system I or most people would say is worthy of that name ought to include these two among its goals. If the guy serves 60 days and gets out and never does it again, then the penal system has succeeded in its second goal, but failed in the first. If the guy serves 60 days, gets out and rapes another girl and then gets incarcerated for life, then justice was served, but he has inflicted another awful disgusting crime on society. Either way, the 60 day suspended sentence does not cut it.
1.7.2006 1:56am
Alabama Attorney:
My wife moved out of California about 15 years ago for two reasons. First, because of the growing perversion of justice (calling good evil and evil good), and second (and related to the first), because of the unwillingness to end what is truly an "invasion" by illegals intent on reconquering land they believe stolen from their ancestors.

Time has proven the wisdom of my wife's decision. Now that she lives Alabama, she is greatly relieved to find a much different and much better culture overall -- one that cares enough for women and children to provide a much safer environment for them.

There are many reasons for a better justice system in Alabama, but at least two of them are relevant for "rehabilitating" judges like this one in the article above:

(1) direct elections of judges every six years.
(2) no limits on individual campaign contributions from in or out of state.
1.7.2006 6:17am
Owen Hutchins (mail):
I dispise the concept of electing judges; they become beholden to the electorate, instead of the law. They rule to please the voters, and the law becomes secondary.
1.7.2006 8:26am
Hugh59 (mail) (www):
Judicial appointments is a tough thing to get right. Elected judges have a tendency to "play for the gallery." The same can apply for judges who are appointed, but face popular votes for retention.

The Vermont system seems to be a good idea actually: the governor appoints the judge and the state legislature periodically votes to retain. All that remains is an appropriate disciplinary system so that judges who get carried away can be pulled back in.

As for Alabama Attorney's second proposal...I live in Ohio and just weathered a campaign where there was a large amount of out-of-state money supporting an issue on the ballot. The issue LOST, but I still have an uncomfortable feeling about this. Afterall, if the local mainstream media support the issue, they can choose to downplay the fact that money is coming in from out of state.

I am reading THE POWER BROKER right now, about Bob Moses and New York City. Moses was the head of a commission charged with creating state parks on Long Island. He violated state law and seized private land from its owners. The NYC newspapers, most notably the NY Times, supported Moses and chose to downplay the fact that his actions were illegal (bury that detail in a small sentence on page A-26 and the like). A politician or political committee can be as dirty as it wants, if it knows the media is going to look the other way.

The blogosphere helps fight some of this. Still, my concern may be excessive.
1.7.2006 9:15am
Jeremy Pierce (mail) (www):
I think it's been pretty decisively demonstrated now, at least in capital cases, that the race or sex of the victim is much more determinative of lower or higher penalties than the race or sex of the offender. That's not to say that the latter has no effect, but I'm surprised you didn't even mention the former, which seems much more of a factor statistically.
1.7.2006 10:04am
Deb (mail):
Salieri

I don't see how you can make a comment about CA laws being mild on people who molest children. I personally know someone who was threatened by police (who believed he was doing something illegal with drugs but couldn't catch him) that if he didn't leave the state they would nail him for whatever they could. After having proof at trial that the arresting officer had harrassed the two girls parents (one just released from prison and the other on parole or probation) for more than a month before any charges were even considered. And having one of the children apologize to him at trial, on top of the judge asking the defending attorney why she wasn't objecting to some of the prosecutors evidence, she then sentenced him to 18 years. Then after that,long past the supposed legal time to change a sentence they lengthened the amount of the sentence he would have to serve. Now rather than serve 11 years of the sentence he will have to serve 16. He's already done 11 years. So I fail to see California being mild on child molesting, or maybe they are only serious about it when it's a trumped up charge and the defendant has no money.
1.7.2006 10:10am
WB:
If the girl's parents kill Mr. Hulett the day he gets out of jail, I hope that they also have the good fortune of appearing before a judge who "doesn't believe in punishment."
1.7.2006 12:20pm
Cornellian (mail):
This is why the Supreme Court's decisions in Booker and Fanfan making the Federal Sentencing Guidelines advisory rather than binding were a tragedy, even though the Guidelines were not perfect (too harsh in the area of drugs).

Tragedy is a huge overstatement. Most federal judges still stick to the Guidelines in the great majority of cases.
1.7.2006 12:22pm
Cornellian (mail):
Putting sentencing in the hands of sentencing commissions may produce better sentences. I don't know for sure, but I suspect Professor Volokh has a point. It is also completely unconstitutional, because we have a right to have a jury decide any factual issue that can increase a sentence.

You're conflating two separate issues. There's nothing inherently inconsistent about having a Guidelines type system where the factual underpinnings are determined by a jury rather than a judge. The problem with the Guidelines is that they had the factual underpinnings determined by a judge. If I recall correctly, the Court has not said there would be a Constitutional problem with having the same Guidelines we do now, but with the factual underpinnings grounding a sentence determined by a jury rather than a judge.
1.7.2006 12:30pm
Cornellian (mail):
Time has proven the wisdom of my wife's decision. Now that she lives Alabama, she is greatly relieved to find a much different and much better culture overall -- one that cares enough for women and children to provide a much safer environment for them.

There are many reasons for a better justice system in Alabama (than California), but at least two of them are relevant for "rehabilitating" judges like this one in the article above:

(1) direct elections of judges every six years.
(2) no limits on individual campaign contributions from in or out of state.


Yeah, that great system made Roy Moore Chief Justice of Alabama. No doubt he has very pronounced opinions on the proper role of women in society.

What happens in this system when the proper legal result is highly unpopular politically? Is it the judge's job to render the proper legal decision, or the highly popular one? If the former, what is the purpose of making that judge directly responsible to the electorate? The great majority of judicial decisions are of no interest at all to the public (they'd rather watch paint dry than read most of what courts are called upon to write about) but every now and then they must render decisions on highly controversial issues, and sometimes those decisions are going to be very unpopular with the electorate. In those situations, you can have legally correct decisions, or you can have popular ones, and if you have elected judges, you're choosing the latter. I prefer a system in which the judge's job is to apply the law, not appeal to the voters.
1.7.2006 12:36pm
CharleyCarp (mail):
I wonder if BMW has the same warm feelings for the legal system in Alabama?
1.7.2006 1:47pm
Noah Klein (mail):
Dear Alabama,

My wife moved out of California about 15 years ago for two reasons. First, because of the growing perversion of justice (calling good evil and evil good), and second (and related to the first), because of the unwillingness to end what is truly an "invasion" by illegals intent on reconquering land they believe stolen from their ancestors.

Time has proven the wisdom of my wife's decision. Now that she lives Alabama, she is greatly relieved to find a much different and much better culture overall -- one that cares enough for women and children to provide a much safer environment for them.

There are many reasons for a better justice system in Alabama, but at least two of them are relevant for "rehabilitating" judges like this one in the article above:

(1) direct elections of judges every six years.
(2) no limits on individual campaign contributions from in or out of state.


We have voted on our judges in California since the progressive era. In fact, California was one of the first states to vote on their judges, as well as institute a variety of other progressive measures.

As a Californian who has voted on their judges, I can tell you I do not find the system to actually be accountable to the electorate. Due to the ethics in the judicial system, which requies a candidate for a judgeship to remain silent on issues that could confront them, a person is not able to get a sense of who that judge will be. A person cannot understand the candidate's opinion's on issues that are critical to the judiicial system like victim's rights, punitive damages or a variety of other issues that are within a judge's discretion to decide. All the information a voter can receive is the candidate's resume and their ABA rating. I have personally e-mailed and called judges at the information they provided to the CA Secretary of State and all the candidate said is that they can't speak to my concerns.

I think California should go to a system where the judges are picked by the governor, confirmed by the legislature and reconfirmed by the legislature. If a judge does something truly dispicable, believe the legislators will hear about it.

Noah
1.7.2006 2:42pm
arbitraryaardvark (mail) (www):
Noah, you point out an important defect in the way we've been electing judges. We'd had the form of elections without the substance.
The Supreme Court, in Minn. GOP v White, held that if we're going to elect judges they have to be allowed to campaign. But that decision is only slowly filtering down to change the process of judicial elections. When I ran for judge the censorship bothered me, so I'm pleased by the court's decision and displeased by the continuing resistance to it.
The other side of the coin is that folks like the Brennan Center worry that people like Abramov (sp)or Bill Gates will go around buying up judges. It's a legitimate concern, to which censorship is the wrong answer.
Legislators aren't in a good position to decide individual cases. Cases have nuances, unforseeable twists and turns that bright line rules don't allow for. Whether the discretion lies with a jury or a judge, justice requires that discretion be applied in actual cases. Yes,there's a downside that people might get harsher sentences for being ugly or poor or some arbitrary factor, but removing discretion creates more problems than it fixes. IMO.
1.7.2006 8:20pm
Bob from Ohio (mail):
Clayton Cramer's comment is spot on. Ths guy deserved life, period, any any lesser sentence will invite self help. If he gets out in 60 days, I doubt he will live past 61.
1.7.2006 9:39pm
Noah Klein (mail):
AA:

Are you saying that the ethics and the law now allows candidates for judicial opinions to express their position on issues of the judiciary? Or are you saying that they are able to campaign and promote themselves?

If you are saying the latter, then I do not see any substantive difference between the system before the case and after. Could you please clarify it for me.

Noah
1.8.2006 2:59am
Duqlaw98 (mail):
For all of the discussion pertaining to sentencing and judicial discretion, the important issue for me is the appropriate sentencing for pedophiles. Pedophiles are not merely violent offenders nor are they merely sex offenders, but rather are a distinctive group of criminals who warrant a distinctive form of punishment. Research has shown that the pedophile is treatment resistent due to the fact that he/she is driven to molest children. In essence, a pedophile is a sociopath akin to a serial killer, individuals who fantasize about their crime; troll for and stalk their victims; and then act out those fantasies. If the defendant in Vermont is a typical pedophile, he molested possibly hundreds of other children by the time he came to the attention of law enforcement. Any sentence is ineffective as a specific deterrent to the pedophile or a general deterrent to other pedophiles. The only purpose of a sentence for a pedophile is incapacitation, that is, to protect society and future victims by incarcerating the pedophile for the rest of his/her life.
1.8.2006 7:40am
JJM (www):
Looking at the local press article here (very different from the tabloid-TV quotation at the top of this page) , it seems that the sentence was effectively a life sentence; it's prison for life if Hulett " if he fails to obtain counseling or otherwise follow instructions" : at any time, ever. I also note that he wasn't convicted of "rape... countless times" but of two rapes and one lewd and lib- and the point I take from that is that if the TV reporter thought to pass off two as "countless" one has to wonder how far the rest of the article exaggerated or invented for dramatic effect.

I can see that sentencing would be more in line with popular feeling if judges had a preview of TV commentary and were told they should sentence in line with the factoids, rather than the facts as they came out in court. But (even following this happy idea from long-dead regimes), isn't the critical problem in this case that the Corrections Department tried to tie the hands of the court by refusing to give treatment that was thought on the facts of the case to be needed to minimise the risk for the future?
1.8.2006 7:06pm
Noah Klein (mail):
JJM:

I lean very much to judicial discretion, but no matter how much you justify it the judge did the suspend the sentence of a man who raped a seven year-old to two months.


Noah
1.8.2006 10:36pm
NickM (mail) (www):
If there is a crime that cries out for a harsh mandatory minimum sentence, it is rape of a child. This is something the VT legislature could easily solve if it wants to - and should have quite some time ago.

Nick
1.8.2006 11:57pm
DT (mail):
On this side of the Pond, the difficulty of rogue judges on sentencing was greatly controlled by giving the prosecution the right to appeal sentences if the sentence given was unduly lenient. It meant that the Court of Appeal could look again at all the circumstances and decide whether the public interest was served by increasing the sentence. The use of the phrase unduly lenient weeded out those cases which were just less than the Crown would have expected and meant that only the truly offensive cases were overturned. Oddly enough, when the ledislation was passed, Parliament expected there to be only half a dozen cases a year. Over 150 least year, apparently the judges are more fallible than was hoped.
1.9.2006 6:32am
corngrower:
I agree with an earlier post. He's out in 60 days and will not see the end of the 61st day. And not a single jury would convict.

If the legal system is so concerned about all that is legal and just, and abhors vigilantiism. Then the legal system needs to fix itself, or, they have no right to bitch about undue intrusions. Because, they brought it on all by themselves
1.9.2006 9:45am
Clayton E. Cramer (mail) (www):
Owen Hutchins writes:

I dispise the concept of electing judges; they become beholden to the electorate, instead of the law. They rule to please the voters, and the law becomes secondary.
Oddly enough, I thought that the electorate had something to do with the making of laws in America. Now, it is usually an indirect process (except when statutes are passed by initiative), but nonetheless, the law is supposed to reflect either majority will (in the case of statutes) or some supermajority (when the Constitution supersedes a statute).
1.9.2006 11:08am
Clayton E. Cramer (mail) (www):

I have some scepticism about whether this case involved rape.
Once, it's rape, twice, maybe still rape. Thousands of times, maybe there's something else going on. Sometimes rapists are able to control their victims enough to allow multiple assaults - handcuffs, or a threat to kill the mother, for example. But it is fashionable, and dead wrong, to describe all intergenerational sex as rape.
She was seven years old. Your abstract theories may make you popular at law school, but those of us who have had children know that a seven year old is completely unable to make informed consent, and are easily manipulated or intimidated.
1.9.2006 11:11am
Noah Klein (mail):
Clayton:

The laws are supposed to reflect the majority. Yet the judiciary is supposed to be independent of any influence and fairly interpret the law.


Noah
1.9.2006 2:40pm
Deoxy (mail):
"I dispise the concept of electing judges; they become beholden to the electorate, instead of the law. They rule to please the voters, and the law becomes secondary."

This is a problem with ANY term shorter than life - the judge MAY be tempted to rule in a certain way to please whoever re-elects/re-appoints them, and the voters is only one such group. In fact, if you have to choose a group (that is you don't appoint for life AND you allow re-election/appointment), then the voters would probably be the best one.

"I have some scepticism about whether this case involved rape."

Then you are either completely naive regarding children or a sick f--- pedophile yourself. Hopefully the former, as that situation is much, MUCH easier to correct. Pedophilia has an incredibly high recidivism rate, even among those who honestly claim they want to change.
1.9.2006 3:24pm
Clayton E. Cramer (mail) (www):

The laws are supposed to reflect the majority. Yet the judiciary is supposed to be independent of any influence and fairly interpret the law.
So a guy that rapes children gets locked up for 60 days--at the end of which, he is again free to prey upon children.

How does this qualify as "fairly interpret the law"?
1.9.2006 5:51pm
Noah Klein (mail):
Clayton:

Never said that. Never made the suggestion. Never even thought that. I can see that you have not read the entire thread. Where I said this was rape, where I said this made me think seriously about my position on guidelines and where I rebuked a person who questioned this rape. A PERSON WHO RAPES A CHILD DESERVES SERIOUS PUNISHMENT, IF NOT LIFE EVERY TIME. What I said was that judges interpret the law. Judges are supposed to interpret it well, if they don't, like in this case, there are recourses, such as impeachment and appeal.

Noah
1.9.2006 8:55pm