Sticks and Stones

I don’t know Judge J. Phil Gilbert of the Southern District of Illinois personally, but I’m pretty sure he dislikes sex offenders.  A lot.  So much so that his remarks at sentencing in at least two recent sex cases have earned rebukes from the Seventh Circuit.  In one, United States v. Snodgrass (No. 10-2343), Judge Gilbert imposed a thirty-year sentence — a full ten years above the advisory Guidelines range.  Here’s how he explained the sentence:

Mr. Snodgrass, there’s not a whole lot I’m going to say. I listened to the trial, have seen the evidence at the sentencing hearing. You are definitely a scourge on society. You are a sick-o. You’re a sexually dangerous person who, in the opinion of this Court, should never be allowed the freedom to abuse children again. You may be beyond redemp- tion, but that’s not for me to decide. There’s good and evil in this world, and you fit the bill of being evil.

There’s not a [§] 3553(a) factor that doesn’t cry out for a sentence that will result in your incarceration the better part of the rest of your life.

Meanwhile, in United States v. Bradley (No. 10-1080), Judge Gilbert imposed a twenty-year sentence — more than fourteen years above the Guidelines range and more than twelve years above what prosecutors requested.  Here’s what the Seventh Circuit quoted from his explanation of the sentence:

The district court, unpersuaded by Bradley’s words, characterized him as “Dr. Jekyll and Mr. Hyde” and a child predator and told him:

“But in truth in fact, Mr. Bradley, you are a pathetic person. I can’t think of a more calculated and heinous crime upon children than this one. The only thing worse you could have done to this child was to have killed him. But wait a second. You did kill him. You killed his spirit, his self-esteem, his confi- dence in himself, his security, and his ability to cope with life. You have killed the person he was, for the victim here, T.S., will never be the same. And he will likely go through the rest of his life in living hell because of you.”

The court, having read a letter from Bradley’s 78-year-old mother in which she quotes The Merchant of Venice in asking the court to temper justice with mercy, responded by paraphrasing its favorite philosopher, the Peanuts character Snoopy, and telling Bradley: “’You are the crabgrass on the lawn of life.’ And you know something, Mr. Bradley? You are lucky that you are living in this country and not in one of the middle eastern countries where you would be executed for this crime.”

In Snodgrass, the Seventh Circuit affirmed the sentence on the basis of a “well-reasoned” written opinion by Judge Gilbert that evidently filled in the reasoning that was lacking in his remarks in open court.  But the court nonetheless offered some pointed criticisms of Judge Gilbert’s oral explanation:

We caution, however, that namecalling is not a substitute for reasoned analysis. Regardless of the heinous nature of the crime, every defendant is entitled to a reasoned explanation of his sentence. This ensures meaningful appellate review and promotes the perception of fair sentencing. During Snodgrass’ sentencing hearing, the judge uttered an explanation that provided no guidance on appeal and served only to insult the defendant.  Such an explanation is inadequate under the law and incompatible with of our system of justice. While the judge’s written explanation of Snodgrass’ sentence preserved meaningful appellate review, we lament the need for it in this case.

In Bradley, the Seventh Circuit vacated the sentence because it was based on “rank speculation” that Bradley was a serial child molester, even though no evidence in record supported such a finding.  (See my earlier post on Bradley here.)  Along the way, the court noted its concerns with Judge Gilbert’s “unnecessarily harsh and exaggerated language”:

Bradley rightly questions the propriety of the court’s disparaging comments, particularly the glib response to his mother’s plea for mercy. We recently observed that a “litany of inflammatory remarks” can undermine the entire analysis of a sentencing judge.

To my mind, Snodgrass and Bradley raise interesting questions about what a sentencing judge should do when he or she feels powerful, visceral negative emotions — disgust, revulsion — regarding a defendant, and what an appellate court should do when it sees evidence that a sentencing judge was experiencing such emotions.

From a legal doctrinal standpoint, these questions get addressed through sentence explanation requirements.  I discuss the doctrinal framework, which varies quite a bit from jurisdiction to jurisdiction, in this article.  Normally — consistent with the traditional view that sentencing is a matter that lies within the discretion of the trial-court judge — explanation requirements are not especially demanding.  But federal sentencing law, like the law of at least a few states, does plainly contemplate some sort of a process of deliberation and logical reasoning; there should be something at least loosely “law-like” going on — an express application of established general principles to facts that are found based on record evidence.

This ideal of sentencing as cool-headed, objective reasoning — which seems so clearly embodied by the federal sentencing guidelines — is at least in tension with the picture of a judge who is revolted by the person of the defendant.  And when that revulsion finds voice in the formal explanation of the sentence, an appellate court may conclude that the explanation is legally inadequate.

It’s easiest, of course, when revulsion is all there is to the explanation.  So, if there had been no “well-reasoned” written opinion to follow the sentencing hearing in Snodgrass, the Seventh Circuit seems to be telling us that the sentence would have been vacated.

But what if, as in the actual Snodgrass facts, the sentencing judge not only gives voice to disgust, but also separately justifies the sentence in ways that satisfy our minimal rationality norms?  One may be inclined to see the explanation as a post hoc rationalization for a sentencing decision that was actually driven by personal animus.  In such cases, however, it is not clear to me that there is a doctrinal basis for vacating a sentence that — let us assume — lies within the wide range of substantive reasonableness.  It is clear to me, though, that appellate courts are not likely to have much interest in peaking beneath superficially adequate explanations to explore the actual motivations of sentencing judges, absent strong evidence of bribery, racial bias, or other clearly out-of-bounds considerations.  (See, for instance, my post on State v. Harris, a fascinating Wisconsin case in which the sentencing judge did seem to be reacting quite negatively to a defendant on a personal level, but no one seemed able to frame the issue in anything but racial bias/Equal Protection terms, which did not quite fit.)

As Bradley indicates, however, the sentencing judge’s articulation of a formally logical explanation for the sentence may not be the end of the matter if the judge’s logic rests on premises that are merely “speculative.”  Bradley suggests that a judge’s “unnecessarily harsh and exaggerated language” in imposing a sentence may lend support to a conclusion that the sentence was not adequately justified.  The Seventh Circuit left it a bit unclear as to what work exactly the harsh language did in its legal analysis, but perhaps there is a sense in which such language raises doubts about the care with which the sentencing judge was evaluating the record and thereby attenuates the deference that would normally be shown to a trial-court judge in matters of fact-finding and discretion.

Apart from the doctrinal questions, there are also interesting questions of ethics and punishment theory lurking in the background.  Emotions play an important role in moral judgment, and it seems neither possible nor desirable to eliminate the sentencing judge’s emotional responses entirely from the sentencing process.  Indeed, the federal sentencing guidelines have come in for some harsh criticism for going too far towards a coldly mathematical sentencing process that is drained of moral weight.

But, while the negative emotions will always be there, I’m quite uncomfortable with the idea of a judge bringing them to the foreground in his or her explanation of a sentence.  This seems to personalize sentencing too much, to make it too much about the person of the judge and the person of the defendant, too divorced from the forms of law that seem so important to legitimizing the infliction of punishment.  This is terribly trite, but I can’t help but find appeal in the old saying, “Hate the sin, love the sinner.”  When we move from moral judgment to namecalling, I’m afraid we start to blur the critical distinction between punishment and mere vengeance.