Thursday, November 7, 2013

Sorry Doesn't Make It Better

Just about everything that happens in Court involves some kind of consequences for acts that happened days, months or sometimes years before, outside of the courtroom.  It may be when one of the parties to a contract that has gone awry seeking damages or another person seeking damages because of a car accident or allegedly defective product.

For a judge, the decision of consequences comes up most often when we are called upon to impose penalties in a criminal sentencing hearing.  We are called upon to consider just about all aspects of the crime and the defendant’s situation.  A presentence investigation (PSI) is prepared by a probation officer to give the court a surprisingly detailed history of the Defendant, his or her family, education, work history and often chemical dependency or psychological evaluations.  The PSI will often give the agent’s recommendations as to what would be an appropriate sentence.

Even with the recommendations and all the information provided, there is still a large amount of discretion that judges have in pronouncing sentence.  If a person convicted of a felony does not go to prison, for instance, how much, if any, jail time ought he or she serve?  Is there restitution (money to be paid to the victim of a crime) and if so, how much?  What should the fine be?  Is treatment for alcohol or drugs necessary?  Should the defendant be required to attend Alcoholics Anonymous or Narcotics Anonymous? 

Having read the presentence investigation and the various reports, I am ready to conduct the sentencing hearing.  I will first ask if the defendant has any corrections to the PSI that I should know about.  I will then hear from the prosecuting attorney, sometimes from the victim, the defendant’s attorney and the defendant.

It is then my turn to speak. 

The goal is to fit the punishment to the crime.  Sometimes, the defendant and his or her attorney will say that the defendant has been punished sufficiently already.  They have apologized and truly feel bad and remorseful for what they have done.  Sometimes, they are right.

But sometimes, I recall growing up, the oldest of eight children.  There were lots of apologies offered in the McCarthy household back then, for slights small and large.  If the apology did not fit the misdeed, Mother would remind us that “Sorry doesn’t make it better.”  There was a hurt and it requires a consequence. 

So, I start to speak and do my best to do justice and make the punishment fit the crime.

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Next Week:  A Judge’s Courtroom Blessing