One more for the fellow night owls fighting for justice...

We have a naive idea of what "equality" is and it has some dangerous consequences. Pure vengence usually doesn't work.

Lady Justice’s blindfold and scale epitomize some of the core values of American culture, fairness and equality for all. However, in the effort to provide such unbiased justice, many people who pass through the criminal justice system receive the opposite. When considering equality, it is prudent to understand that not every criminal has the same motivations and reasons behind his/her behavior. Although blanket uniformity looks like the most just way to carry out sentencing when only the legal aspects of the case are contemplated, it is not so cut and dry when cases are considered more thoroughly. Giving the majority of the power to the legislators, who only look at the theoretical fundamentals of offenses, instead of the judges and prosecutors, who are in constant daily contact with offenders, is nonsensical. The legislature only needs to present in the sentencing process in terms of providing advisory guidelines for judges; the ultimate discretionary authority needs to be in the hands of those people who deal with crime on the case-level, mainly judges and attorneys.

Equal justice is a nice hypothetical idea: if you commit crime A, you get corresponding punishment A. It does not provide much room for disparity or discrimination and thus, it is the epitome of fairness; however, not taking the unique circumstances of specific cases into consideration during sentencing harms society as a whole when the same offenders continue to be sentenced yet not actually treated and because of this, they continue to recidivate. The more complex system of individual justice, which recognizes the many facets that influence offenders’ behaviors, allows for a more effective justice system – one that actually has a much better chance of putting a dent in the crime rate. It does not merely warehouse every person who might be a threat to the public; instead, it attempts to “fix” offenders so that they can be a productive part of society. The government, an entity that is not involved in the daily operations of the criminal justice system, forcing judges to abide by their ideas on the proper way to sentence should be rejected by the public and replaced by a system in which judges, the people who are closer to the immediate community, crime, and offenders, make the discretionary decisions. Even though legislators are the representatives of the people and their values, how often and how many people actively vote on criminal laws and statutes? Of those who do vote, how many are actually well educated on the issues for which they are casting their ballots? Does it make sense that the people who are the furthest removed from the criminal law should be the same people who make the most profound decisions for its livelihood? Or, does it make more sense that the members of the court system, who are intimately acquainted with the community, their regional views on crime, and the offenders themselves, make the decisions on how to prosecute and sentence individuals? Asking a public that is either not at all or very casually educated about the intricacies of the criminal justice system to help create the guidelines that judges are then forced to follow is just as sensible as asking the public what the best treatment for lung cancer would be, instead of asking an oncologist, perhaps. If the public doesn’t have that much say-so, then legislators, a very small group of people who are not representative of the overall population, are making very important decisions for people they are not really representing and that, might be more disturbing than the former. Putting diagnoses and sentencing into the hands of qualified professionals who are directly involved in a particular field is the only logical solution and that solution is individual justice.

Since there are a million different examples of how the same type of crime could be vastly different depending on its context, judges should consider legally relevant factors of specific cases prior to determining sentences. As Kevin Reitz put it, legislature is not able to define a “perfect matrix of laws to govern every particular of life” and because of this, they should not be able to set determinate sentencing rules (Reitz, 401). Without determinate sentencing statutes, judges have the freedom to sentence people in a way that is most appropriate to their unique circumstances. If an offender has a mental illness that could likely be contributing to his/her criminal behavior, a judge can sentence them to a psychiatric hospital instead of a jail that can lead to an exacerbation of the illness. If an offender is addicted to drugs, a judge can sentence them to treatment where medical professionals can monitor them. There are also other characteristics that need to be examined; such as, the number of charges, their nature (i.e., violent, was a weapon used, etc.), prior criminal record, current criminal status (have they violated probation?), gang affiliation, and possibly others based on the judge’s assessment. The offender, not just the crime, should be the focus of the sentencing, considering that without an offender, there would not be a crime. The current emphasis on restitution is austerely avenging a crime and the lack of offender focus has led to a cycle of recidivism. At the very least, allowing judges to assess an offender’s needs and sanctioning accordingly can have a positive effect on recidivism; at the very worst, the situation will remain as it is and no harm will be done.

An additional dilemma is that statutes like mandatory sentencing take away the discretionary influence of judges, who are elected or appointed based on their accomplishments and competence, and as an alternative, give most of it to prosecutors, who are some of the most inexperienced and unregulated players in the criminal justice system: “they are often at an early stage in their careers, their decisions are made behind closed doors and are neither explained on the record nor subject to review. Judges, by and large, are neutral to case outcomes, are selected for high levels of professional attainment, are required to work in open court and explain their decisions on the record, and can be second-guessed by their appellate colleagues” (Reitz, 403). Prosecutors, as Supreme Court Justice Jackson noted in 1940, “[have] more control over life, liberty, and reputation than any other person in America”; legislature does not need to compound that lofty prosecutorial control (Spohn, 63). It is irresponsible to permit prosecutors the absolute ability to circumvent legislative guidelines by choosing whether or not to charge an offender, what to charge them with, and whether or not to offer a plea bargain without ever having anyone review their decisions while judges have to abide by numerous restrictions on just one aspect of the process, sentencing – which is something that prosecutors can advise upon. As Reitz points out, “we should prefer a system in which judicial sentencing discretion is not subservient to prosecutorial discretion” (Reitz, 403). Given all of the avenues for abuse, it should be clear that the constraints need to be placed far more strictly on prosecutors and eased off of judges and, since legislators are not the best discretionary authority for the criminal justice system, their restraint on sentencing should be less prevalent overall. Legislators should however, address the common concern that case-level parties could sentence based on discriminatory factors if they are given room for discretion and there must be statutes to correct for that behavior.

As one of Reitz’s hypotheses state, “the considerations of visibility, professionalization, accountability, and systemic responsibility should be the relevant concerns” (Reitz, 403). In the judicial system, some of those checks and balances are already in place for certain parties. In view of the fact that cases are tried in public, a judge’s work is always on display and able to be scrutinized by the fellow court community and the civilians who pass through the system. Prosecutorial staff, on the other hand, conducts much of its business behind closed doors where it cannot be scrutinized. Since it is not possible for prosecutors to make the entirety of their work public, there should be at least one unbiased party present during all negotiations with offenders. They should be aware of the circumstances of the case and can report to an organization like the Attorney Registration and Disciplinary Commission (ARDC) in Illinois if they believe a prosecutor is abusing their power in any way. In addition to that, prosecutors should be required to write a brief review of their charging decisions, plea-bargaining, and so on. It may be inconvenient and more time-consuming but, considering the outstanding impact on human lives, it is a necessity. In all other aspects of a prosecutor’s work, organizations like the ARDC should continue to be present and more strongly enforce their guidelines for principled behavior. Those who work within the court system should be made well aware of their ethical responsibility to report (anonymously if they choose) any misconduct by attorneys, whether it be discrimination against an offender or coming to work intoxicated. Judges, who are already held to a higher standard than lawyers, should be accountable to a similar organization where both the public and the court community can report any problems that are guaranteed to be addressed by the organization as long as they have merit. If a judge is taking legally irrelevant factors into account when determining whether to sentence and how harshly to sentence, they will eventually form a pattern of behavior that can be addressed by the committee and then either fixed or punished. The legislature can strictly impose sanctions upon judges and lawyers who are found guilty by the committees for not upholding the law. If judges and lawyers know that the consequences for illegitimate behavior can be as high as losing their license or imprisonment, they are likely to hold themselves even more responsible than they currently do; and, those who do not abide by the rules will be penalized accordingly.

Using the above outlined system of individual justice gives the public the best of all worlds. Prosecutors will no longer be so powerful that they can do as they please in the pre-sentencing stage and judges will be able to impose individual sentences that are more applicable to the offenders needs and thus, are more likely to have a positive impact on the offender and the public.