zlacker

Bear in mind that prosecutors have a professional duty to zealously argue the government's case just as the defense lawyers have a duty to zealously argue for innocence or lenity of their clients. Unfortunately judges no longer have that much discretion to weigh the competing arguments because of the mandatory sentencing guidelines Congress came up with. It has since been established by the Supreme Court that the guidelines are just guidelines rather than being binding, but sadly any judge that says 'these guidelines are crap, I've considered them and now I'm going to ignore them' is committing career suicide unless the high sentence would be so bizarre as to truly shock the conscience.

And the American legal conscience unfortunately has a very high shock threshold these days, as does the population in general. I mean, look at how many people cheerfully support torture despite the massive intellectual and ethical pitfalls involved. Many of those people are also indifferent to the Constitutional basis of the judicial branch and start foaming at the mouth any time a court says a piece of legislation is unconstitutional.

>>anigbr+(OP)
My understanding is that this entire discussion is in the context of sentencing, and that the defense's argument here is in that context.

If the defense had made the harm reduction argument in the context of the guilty/not-guilty question, that would be one thing. But in the sentencing phase, it seems appropriate to take into account the actual harm of the crimes involved.

When the prosecution's answer to this discussion of harm is "it doesn't matter, it was illegal," that's when I get cranky.

>>anigbr+(OP)
The Federal judges who apply the Sentencing Guidelines all "hold their Offices during good Behavior", so I kind of wonder what you mean by "career suicide" -- a reduced likelihood of elevation to a higher court?

>>schoen+Y3
Yeah. Also, judges are not very well paid so some of them work with the anticipation of returning to the private sector later on. IF they developed a reputation for having decisions overturned by appeal courts, that wouldn't serve them well in their private career. Although the ideal judge would be utterly impartial, in the real world judges are human and still subject to economic incentives, herding behavior and so on. Richard Posner (arguably America's most influential living legal scholar/jurist) has written extensively on this topic (as well as just about every other topic).

>>haberm+n1
Lex talionis has been a part of human legal tradition for at least 3700 years. The retaliatory penalty shall be equal or lesser than the harm caused by the crime.

This is a big problem with victimless crimes and offenses against the public welfare. The extent of actual harm to actual people cannot be easily measured, so there is no rational limit upon punishments levied against the offenders.

Evidence that a criminal intentionally acted in such a way as to reduce the potential harms wrought by his crimes is VERY relevant to sentencing, in my opinion. The same holds true for malice and negligence.

For instance, if you sell heroin, that's illegal. If you refused to sell heroin to people younger than 18, and also embargoed and beat the excrement out of anyone you discovered to be passing heroin on to minors, that would still be pretty awful. But it would also show that you were making some attempt to be less awful than you could be. If, perhaps, you kidnapped any customer who lost his job, and forced him to dry out and clean up in your own private rehab, that would still be pretty nasty. But it would also show a commitment to reduction of harm. You should probably get a below-median sentence, as punishments for drug kingpins go.

Contrariwise, if you keep your drug stash and your loaded shotgun in your baby's crib, then screw you, buddy; you're getting the maximum on all counts.

>>anigbr+(OP)
> Unfortunately judges no longer have that much discretion to weigh the competing arguments because of the mandatory sentencing guidelines Congress came up with.

You mean the ones whose provision making them mandatory was struck down as a violation of the right to trial by jury in 2005, and which have since been advisory only? [0]

[0] http://en.wikipedia.org/wiki/United_States_Federal_Sentencin...