Notes: Order in the Court

Justice the numbers

A FEW MONTHS ago a friend was elevated from the base munificence of her private law practice to the noble penury of the Connecticut bench. My wife greeted the news with the announcement that she, too, would like to be a judge. I pointed out a few of the usual prerequisites: “One, law school. Two, practicing law for a while. Three, getting involved with politics.” She said, “No, no. I want to go straight to the judge part.”

Most of us, I imagine, have from time to time entertained similar aspirations. Who has not read reports of a judge letting off a chronic malefactor with a mere slap on the wrist and suspected that any citizen hauled at random off the streets would have devised a more appropriate retribution? By the same token, on those occasions when the headlines report the meting out of a punishment that truly fits the crime—“SLUMLORD SENTENCED TO LIFE IN TENEMENT,” say—who does not sense that the forces of the universe have at least for an instant come into harmonious alignment? Who doubts that were he or she to ascend to the bench, such occasions would become less and less rare? Certainly my wife feels that no-nonsense sentencing would be a hallmark of her judicial career, and when I hear imprecations like “Throw away the key!” and “Fry ‘em!” tumble from her lips as she reads the morning paper, I am assured that she has not broken training.

THE dispense SEARCH justice FOR a lies, better of course, way to at the very heart of the great human drama. And, to be fair, that the record so far is decidedly mixed owes as much to the existence of law itself as to the idiosyncrasies of magistrates. The decision by many societies—a hasty one, some might argue—to abandon the simple blood feud as the basis of conflict resolution led eventually to the embrace of an alternative system, in which a common body of law and custom, jerry-built through centuries of venal accretion and bitter compromise, was meant to cover every conceivable situation. This was a recipe, we now know, for maddening inconsistency and perverse incentives.

The problems became apparent very early. Consider the Pactus legis salicae, the influential legal code promulgated by Clovis, the Frankish King, in the sixth century A.D. The Salic Law is, in the main, a hard-nosed and unsentimental document, and a refreshingly unhypocritical one in certain particulars. With its concept of wergeld, or “man-money,” it was unabashed about asserting that the lives of different kinds of people (young men, pregnant women, slaves) had different monetary values—as compared with the daintier modern practice of letting juries implicitly make similar distinctions while pretending that they don’t. The Salic Law also shone the cleansing light of justice into crannies that many of us might have overlooked. For example: “If anyone without the permission of the judge or of him who put it there, presumes to take the head of a man which his enemy had put on a stick, he shall be liable to pay 600 denarii.”

Yet even this methodical and frequently admirable document contains much that is unjust or inexplicable, and must have given people at the time considerable cause for complaint. Here is one provision: “If anyone strikes a man on the head so that the brain shows and the three bones over the brain protrude, he shall be liable to pay 1,800 denarii.” That sounds fair enough. But wait: If you shoot a poisoned arrow at someone and miss, the fine is even higher—2,500 denarii, the same fine levied on a person who “cuts another man’s hand and the hand hangs crippled.” A similar skewing is evident with respect to libel. “If anyone charges another with throwing down his shield while in the army or with fleeing because of fear,” the fine, according to the Salic Law, is to be 120 denarii. So why, “if anyone calls another a rabbit,” should the fine be twice that amount? Why should the fine for knocking out a tooth be the same as for cutting off an ear or a finger? And it is hard to see how the penalty for personal assault—120 denarii for each landed punch, but levied only on the first three—could have done anything to limit the severity of such incidents.

I would hasten to point out that such imbalances are by no means confined to ancient history. Living in twentiethcentury Massachusetts, I fully empathize with the sixth-century Franks. My state’s legal code differs noticeably from the Salic Law in significant details, but in some elements of character differs not at all. I was surprised to learn, for example, that in Massachusetts the maximum fine for throwing litter from a moving vehicle is a stiff $3,000 (first offense). To put that sum into perspective, consider that sending one of my children out on the streets to beg for a day would risk, at maximum, only a $200 fine. Indeed, for less than the cost in Massachusetts of tossing a candy wrapper out the window, I could drive all three children to downtown Boston to beg for two days on a holiday weekend ($1,200), sell cigarettes to each member of a second-grade baseball team ($900), steal a box of tools from a construction site ($100), and, while driving twenty-five miles above the speed limit ($200), run over ten cats and fail to report the fact ($500).

THIS IS NOT to say that no progress has been made during the past 1,500 years—that the sharp quillets of the law have become only more inexplicable. Clovis would, I think, have been impressed by the Federal Sentencing Guidelines Manual, a three-pound, 800-page document that came in the mail not long ago. I had ordered this document, which is compiled by the United States Sentencing Commission, after learning about it from our friend the judge. The manual represents an ambitious attempt to make the calculation of a criminal’s debt to society what it has never before truly been: rational and scientific, coolly consistent, mathematically aloof. In addition to the federal government, perhaps a dozen states have established sentencing standards of one kind or another.

The federal guidelines are, however, without peer. All federal crimes are now listed according to a degree of seriousness, or “offense level,” from a minimum of 1 to a maximum of 43. These numbers run down the left-hand side of a page headed “Sentencing Table.” From left to right run the Roman numerals I to VI. These represent the “criminal history category,” which refers to the degree of incorrigibility of the accused. The Sentencing Table works somewhat like a mileage chart in a road atlas. To determine the punishment for a particular person convicted of a particular crime, simply move a finger across from the offense level and then down from the criminal-history category.

Actually, it’s not quite that simple: The offense level and the criminal-history category are both subject to dozens of incremental modifications. Was the perpetrator a ringleader or an accomplice? Was he on parole at the time of the crime? Did he abuse a position of public trust? Did he try to obstruct justice? Did the crime involve the abuse of specialized professional skills, such as those of accountancy or the bar? If there was a victim, was the perpetrator courteous and considerate toward this person, or was his behavior pretty much inexcusable? Was the victim elderly or infirm? Mentally impaired? A police officer? Is the perpetrator truly sorry for what he did? Depending on the answers, the judge can add or subtract points. The figuring is done on printed worksheets, which lead one along relentlessly, from line to line, from page to page, much the way a tax return does. Here is how Worksheet D begins:

Docket Number_

1. Adjusted Offense Level (From Worksheet A or B) If Worksheet B is required, enter the result from Worksheet B, Line 9. Otherwise, enter the result from Worksheet A, Line 5.

2. Acceptance of Responsibility (See Chapter Three, Part E) If applicable, enter “2.” If not applicable, enter “0.”

3. Offense Level Total (Line 1 less Line 2)

4. Criminal History Category (From Worksheet C) _ Enter the result from Worksheet C, Line 8.

This work culminates in the computation of what might be thought of as Adjusted Gross Behavior. The Sentencing Table then reveals What You Owe, expressed as a range of months in prison. A person in Criminal History Category I (basically, someone with no more than one prior conviction, and that for a minor offense) who hijacks an airplane without loss of life (Offense Level 38) would be liable for 235 to 293 months in prison. The range of possible sentences in the table extends from a low of “0-6” to a high of “life.”

No provision seems to have been made for handing down a sentence that in exceptional circumstances my wife has been know n to favor: “Nuke ‘em till they glow.” But as the manual frankly notes, “some offenses that occur infrequently are not considered in the guidelines.”

THERE technocratic IS, I must efficiency admit, a certain in the idea of the Federal Sentencing Guidelines Manual. In theory, large numbers of miscreants can be processed even as we avoid wide disparities in the calibration of justice. Perhaps one day soon we will also be able to achieve substantial economies by having criminals do the paperwork and file their own sentencing “returns,” just as taxpayers do. Career criminals might even be made to file quarterly estimates. Certainly the development of a criminal class capable of dealing with forms of this kind—capable even of cheating on them imaginatively—would put paid to talk of American educational decline.

Still, the advent of guidelines cannot help muting enthusiasm for going straight to the judge part, at least in one whose tastes in justice may run to the poetic. And one can only wonder about what effect guidelines may ultimately have on the very idea of exercising judgment.

I cannot erase a discomfiting image from my mind. It involves Solomon, that wise judge, who in a famous episode had to choose between two women each claiming to be the mother of a certain infant. He called for his sword. And he . . . well, the passage in the Book of Kings, as I see it now, reads like this: “And the King said, ‘Bring me Worksheet D.’ And Worksheet D was brought to him.”

—Cullen Murphy