Sentencing guidelines photo by Nick Youngson CC BY-SA 3.0 Pix4free

My guess is that most people have no idea how judges go about sentencing defendants convicted of a crime. I also suppose many people think that if the judge got up on the wrong side of the bed, it will be a bad day for people being sentenced. Not so.

Most of the time, the sentencing judge presided over the trial or was the finder of fact in the case, so the judge will be fully familiar with the facts. The judge is also provided with an in-depth history of the defendant by a probation officer prior to sentencing. The judge will get a description of the family background of the defendant, employment history, family history, psychological status and the like.

The impact of the crime on the defendant is, of course, a major issue and the probation report will focus extensively on that. Heading into the sentencing, the judge has a large amount of information about the crime, the defendant, and the impact on the victim.

An experienced judge will generally have an idea what the normal sentencing range is for the kind of crime committed. The length of possible sentences is established by the legislature and expressed in our statutes. In some cases, the legislature may have established a mandatory minimum, a threshold below which the judge may not go.

What factors does the judge consider when fashioning a sentence? What jurisprudential considerations guide him/her? Most experts believe there are essentially four, depending on how they are expressed.

In no particular order, here they are:

First, there is retribution. A few question whether the state should be in the business of punishing at all. Others say that to the extent the court is speaking for the community, some degree of retribution is appropriate. It is also widely acknowledged  that punishment vindicates the rights of the victim or victims.

Then there is deterrence of the individual and of others in the community, i.e., general deterrence. The simple assumption behind this is that if a convicted person knows punishment is swift and harsh, he or she is less likely to commit another crime when released. My view is that whether individual deterrence is appropriate is dependent upon a multitude of factors, too many to outline here. But general deterrence seems to me to be the most significant factor justifying tough sentences. This is based on the premise that if the community sees that criminals are punished swiftly and harshly, members of that community will be more unlikely to commit crimes.

It does seem apparent that while the average person will likely be deterred from committing a crime due to fear of incarceration, a professional hit man will not be significantly deterred from his reprehensible mission by fear of prison. In the death penalty debate, this issue is hotly contested. In any event, general deterrence embodies the need for society to protect itself against criminal behavior.

Third, there is the idea of rehabilitation. This rests on the assumption that if someone goes to prison or is placed on probation having meaningful conditions they must follow, they can be reformed, cured of their bad ways. Sometimes this is true, but sometimes sentenced prisoners who go into prison for committing a relatively insignificant crime come out hardened criminals.

Last, but by no means least, there is incapacitation. This simply means separating someone from society to protect community members. Usually, it means jail time.

Speaking as someone who has had to look straight into the eyes of many defendants, and pass sentence on them, many of the accepted assumptions underlying sentencing are not susceptible of being proved or disproved. That is why the character, experience, and sense of decency of the judge is paramount.

Judges have enormous discretion when sentencing. That is also why we want good people appointed to the bench, thoughtful, temperamentally sound people who will not be unduly swayed by emotion or vengeful motives and who will calmly and dispassionately arrive at a just sentence, keeping all relevant factors in mind, and always maintaining the dignity of the proceedings.

Douglas Lavine

The Hon. Douglas Lavine of West Hartford is a judge of the Connecticut Appellate Court. He has been a member of the Connecticut Judiciary since 1993 and on the Appellate Court since 2006. Views expressed in this column are his alone.