Breyer: Let the Judges Judge

After seeing the crowded dance floor after the annual Ninth Circuit Judicial Conference dinner on Monday, it was hard to imagine the bench getting its collective heart rate up for anything less exciting than a repeat performance of “Oye Como Va.”

But alas, judicial temperament prevailed over any early morning cobwebs Tuesday in Huntington Beach, as a crowd packed in for a panel discussion on one of the few things that judges find more rousing than an impromptu samba: the federal sentencing morass.

No doubt the judges were invigorated by a group of speakers that included a surprise guest — U.S. Supreme Court Justice Stephen Breyer — in addition to several sentencing experts, including Southern District of Texas Judge Ricardo Hinojosa, San Diego U.S. Attorney Carol Lam and Berkeley criminal defense lawyer Cristina Arguedas, who pleased the crowd by announcing that she’d do her best to direct all topics toward Breyer.

The program, put together by Eastern District of Washington Chief Judge Robert Whaley, had one central theme: Judges in the Ninth don’t like constraints on their sentencing.

That came out as Whaley showed five re-enactments of federal cases with problematic sentencing issues, and asked judges in the audience — equipped with remote-controlled voting units — to vote on what they thought the sentence should be. In general, they departed from the federal sentencing guidelines based on things like the risk of reoffending, the effect of a sentence on a defendant’s family, and the defendant’s personal characteristics.

Among the many sources of angst that judges and lawyers aired was concern that statutory minimum sentences were scaring defendants into pleading guilty in cases where they would otherwise go to trial.

“The guidelines distort the factfinding process,” Arguedas said before asking Breyer to opine. He lamented the problem of plea bargains becoming the norm. “There are not trials,” he said. “There are only deals made between prosecutors and defense lawyers.”

That disrupts the foundation of the courts, Breyer added, because the criminal justice system “is one based on trials, not just trials in a blue moon.”

In closing the discussion, Breyer said legislation aimed at the “crime of the day” establishes minimum penalties that constrain judges from issuing the sentences they believe are fair. “If Congress would leave us alone, we could work this out,” he said, to a roomful of applause.

–Justin Scheck


One Response to “Breyer: Let the Judges Judge”

  1. Legal Pad » Blog Archive » Breyer, Kozinski Muse Over Musical Says:

    […] After all the speeches, seminars, dining and dancing, the most substantive opinion to come out of last week’s Ninth Circuit Judicial Conference was the result of a brief cocktail hour discussion between Ninth Circuit Judge Alex Kozinski and U.S. Supreme Court Justice Stephen Breyer over the characteristics of the musical. […]

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