One of my favorite computer geeks, Jake DiMare, posed a question the other day in response to the confusion over the language of 18 U.S.C. § 3553(a), which provides the considerations a federal judge is required to take into account in imposing sentence. The law includes both the parsimony/Goldilocks clause, that a sentence shall be no greater than necessary to accomplish the stated goals, and the list of goals.
Judge Richard Kopf raised the question of whether the language was so devoid of meaning and guidance as to render § 3553(a) worthless. Judge Mark Bennett responded “Sentencing requires us to weigh that which cannot be measured,” to which Judge Kopf replied: “Let’s be honest then and declare that sentencing is entirely a matter of discretion…” If so, this raises the specter of sentencing being so arbitrary and capricious, so captive to any judge’s whim, as to be a total crapshoot.
Jake offered this reaction:
Was there ever a task in the courtroom more ripe for automation?
He went on to explain:
I can tell you those of us in the tech field are programming computers to do some pretty fantastic things in the pursuit of deeply personalized experiences…And there will come a time when somebody has created the sentence-o-matic 1000…Even capable of accepting and calculating the value of mitigating circumstances.
As a representative of the ignorant masses, I find comfort in the notion that everyone would be given sentences using the same criteria, and never again subjected to the whimsy of some of the judges.
While I dismissed it tersely in the comments, it wasn’t because the point wasn’t good, but the response went far beyond what could be offered off the cuff in a comment. Rather, it was a serious enough question as to require a more detailed response.
This “problem,” that judges impose disparate sentences on seemingly like-situated defendants, has long been a vexing problem. It was one of the foundational arguments for the Sentencing Guidelines, to create greater consistency in sentencing across the country, so that a judge sentencing a defendant in a drug conspiracy in Wichita would impose a sentence reasonably the same as one in Brooklyn. Consistency was the goal, and from a substantial distance, it appeared to achieve that goal.
The problem was that it failed miserably to accommodate the myriad personal details that comprise the heart of sentencing. Indeed, it precluded judges from doing so, forcing lawyers into striving mightily to come up with arguments about why their defendant’s circumstances fell outside the “heartland” of the guidelines. Most of the time, these arguments failed. One size fits all sentencing was imposed, and those who feared mercy slept well at night.
Is there much to hate about leaving sentencing to the whims of judges? You bet. But the alternative to bad isn’t necessarily good. On the other side, it can always get worse, as the continuum goes both ways. This is where the Sentence-O-Matic 1000 comes in.
How much do we all love the algorithmically directed advertisements rammed down our throats on websites connected to Google? Not only do they suck, but they’re misdirected most of the time, despite huge access to our data which ought to allow Google to do a far better job of it. Perhaps Google doesn’t find it worth the effort, or perhaps this is the best it can do at present.
But the point is that Google (just an example, don’t get caught up in Google details) can only use past data to drive future predictions, but it does so, by definition, without context, which similarly, by definition, means that it’s just a stab in the dark. That may be good enough for marketing, but sentencing is a bit more serious an endeavor.
Ask anyone engaged in criminal law what criteria should be considered on sentence, and the only honest answer is that the devil is in each individual defendant’s details. Sure, there are the surface measures, the nature of the crime, for example, but that’s just where the inquiry starts. It ends up in a different place in every instance, because every person is different, lived a different life, suffers different causes for different reasons. Whether there are 20 or 20,000 criteria for data input, they differ from person to person.
Add to this morass that the interpretation of the criteria varies enormously by nature of the person inputting the data. Who quantifies sincerity, remorse, intellectual ability, sociopathy, traumatic brain injury, childhood suffering, just to name a few obvious issues? The ability to convert even the obvious concerns into quantifiable measures renders the output suspect. GIGO.
While faith in the utility of technology by its fanboys is understandable, given that’s what you work with, rely upon and have chosen to dedicate your careers to, you can also appreciate that there is no arguing with binary thinking. Ultimately, it must make choices, based upon inputs, then crank out an answer. So while it may well produce consistency, a la the Guidelines, its answers will suffer from the same arbitrary and capricious problems as they did under the Guidelines, and the opposite (but equally whimsical) answers judges provide under § 3553(a).
As Judge Bennett noted, “Sentencing requires us to weigh that which cannot be measured.” If it can’t be measured (and it can’t), then it can’t be input into the Sentence-O-Matic 1000. And even if it was input to the best a bunch of programmers could manage, it couldn’t be subject to the arguments that real life human beings require to address the individualized circumstances that exist in every case and every sentence, because that would obviate the goal of consistency and return us to the whimsy of the judge.
While sentencing based upon a judge’s assessment of the facts, circumstances and arguments of each case and each defendant may be a terrible method, fraught with caprice, personal prejudice, and flagrant inconsistency, it would be unfathomable that any criminal defense lawyer would prefer a system that precluded any argument for leniency based upon the individual defendant before the court.
So we’re back to the old adage, sentencing by whim of an individual judge is the worst system possible, except for all the others. Or as Mencken said, “for every complex problem, there is a solution that quick, easy and completely wrong.” I hate the capriciousness of judicial sentencing. I dread the consistency of the Sentence-O-Matic 1000 far more.