Good and Mad Reading for the Weekend

Many thanks to uber-blogger Doug Berman for alerting us to this well-worth-the-read sentencing memo from Senior Judge John Kane of the U.S. District Court for the District of Colorado.  Berman's post highlights some of Judge Kane's memorable opinions about the U.S. Sentencing Guidelines, trotted out in this blog post. Judge Kane's strongly-worded comments below qualify this for our "good and mad" reading for the weekend:

In an interview with Daily RFT, Judge Kane opens up about why the [John] Brownfield [Jr.] case was probably the most meaningful of his 35-year career, his qualms with the way the government treats veterans, and why he thinks some of the concepts behind federal sentencing guidelines are "bullshit."

"Too many judges follow the guidelines as they were written on Mount Sinai," says Kane, who was nominated to the federal bench by President Jimmy Carter in 1977. By ignoring the guidelines in the Brownfield case, says Kane, he simply was following the advice of the Supreme Court following its opinion in Gall v. the United States, which he cited in his memo.

"Then and especially now, we're told not to deviate from those guidelines, but [in the Brownfield case] it didn't matter to me," says the judge. "I did what I thought was the right thing. You cannot reduce human conduct to a matrix. I think the guidelines help recognize what are normative sentences, but that doesn't mean all people can fit into the same slot ... there's something Orwellian about them." ...

"They ought to get rid of the entire double grid," Kane says now, suggesting the guidelines should serve as one of many sentencing factors. "To say all cats are black is bullshit," he adds. "There are different shades of gray, and that's what these guidelines don't take into consideration."

Kane takes care to note that ignoring federal guidelines should not equate with being soft on crime. One of his nicknames, he says, is "Maximum John" because of his tough stances on certain offenders that cross his path.

Judge Kane's comments arise from his decision to sentence Brownfield, a PTSD-afflicted Iraq war veteran, to probation instead of prison for smuggling tobacco into a prison while working as a guard there. There is spirited disagreement about whether military service should be relevant at sentencing at all -- some worry that it gives veterans undeserved special treatment.  But that doesn't necessarily mean Judge Kane got it wrong in Brownfield's case.

We can't help but agree with the spirit of Judge Kane's sentiments. FAMM supports the use of well-reasoned, evidence-based, and -- most importantly -- advisory sentencing guidelines, but they are not gospel. No guidelines, no matter how perfectly written, can sentence as accurately and fairly as a human judge who gets to look the defendant in the eye and consider all the facts and circumstances of that person and his crime. Sentencing should be the most human, not the most mechanical, of endeavors in a courtroom.  Mandatory minimums and mandatory guidelines alike take this indispensable humanity and discretion from judges and inevitably produce unjust results.