§5H1.1 (James’ Version)

“When you are young, they assume you know nothing”

This Friday, November 1^st, a series of amendments to the Federal Sentencing Guidelines, unanimously adopted by the U.S. Sentencing Commission last April, will go into effect.  Compared to earlier years, the number of amendments this year is small.  Most are pretty straightforward; prohibiting the use, in the calculation of the sentencing guidelines, of conduct for which the defendant was charged and acquitted (duh!); ensuring that the calculation of loss in the sentencing algorithm for white collar crimes is consistent across the federal courts; resolving conflicting circuit court decisions on the application of two different sentencing guidelines; and a few miscellaneous minor and technical amendments.  These amendments address parts of the mathematical mechanics of deriving a recommended sentencing range from the Guidelines Manual.

But calculating the recommended guideline range is just one part of the process of sentencing a person convicted of a federal crime.  It is the easier part.  It’s not easy, just easier.  Anyone can do it.  It doesn’t require wisdom; just a few facts and lots of technical training.  Or AI. 

But then, after that calculations are done, it’s time for the judging.  This is the part of the process where a human being reflects on everything that ought to be considered in coming up with a just sentence – the numbers but much more.  The history and characteristics of the offense and offender.  The impact of the offense – and the sentence that might be imposed – on the offender and the community.  All of the conflicting purposes of sentencing.  Those who were scarred by the crime and who might be haunted by all the what-ifs.  The imperative to treat everyone fairly and avoid unwarranted disparities.  And that we’re all more than the worst thing we ever did.  It’s the part of the process full of values and principles that point in different directions; the part that flummoxes most people, including most judges; the part we hope will lead to something for justice and for the hope of it all.

There was one amendment this year that addresses this part of the process, the flummoxing part.  It is the one amendment I find particularly unsatisfying; one that doesn’t really fit when you put it on, like a sweater that’s been under your bed for a long while.  It’s titled, “Youthful Individuals,” and it addresses the degree to which a younger person should be deemed culpable – and held responsible – for the conduct for which she was convicted and for the harm she caused. 

Here is the reader-friendly text of the amendment (new text in bold) :

Age (including youth) may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.

Age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.

A downward departure also may be warranted due to the defendant’s youthfulness at the time of the offense or prior offenses. Certain risk factors may affect a youthful individual’s development into the mid-20’s and contribute to involvement in criminal justice systems, including environment, adverse childhood experiences, substance use, lack of educational opportunities, and familial relationships. In addition, youthful individuals generally are more impulsive, risk-seeking, and susceptible to outside influence as their brains continue to develop into young adulthood. Youthful individuals also are more amenable to rehabilitation.

The age-crime curve, one of the most consistent findings in criminology, demonstrates that criminal behavior tends to decrease with age. Age-appropriate interventions and other protective factors may promote desistance from crime. Accordingly, in an appropriate case, the court may consider whether a form of punishment other than imprisonment might be sufficient to meet the purposes of sentencing.

Physical condition, which may be related to age, is addressed in §5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).

I find the amendment unsatisfying because its simplistic and unlayered and points in a single direction.  It suggests that youth, and the way it impacts human interaction and criminal sentencing, is a straightforward and uncomplicated thing.  The amendment focuses exclusively on that younger person who did wrong and what might excuse her behavior.  It suggests that when you’re young, you have little agency.  You are “impulsive” and “risk-seeking” and “susceptible to outside influence” as your brain continues to develop.  They assume you know nothing, or something close to it.  There is no mention in the guideline of the people hurt.  Or the others impacted by the crime.  Or remorse.  Or an apology.  Or other choices.  Or much else. 

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Some years ago, the Judicial Studies Board in the United Kingdom published a Framework of Judicial Abilities and Qualities.  It is intended to identify the knowledge, skills, behaviors, and attitudes that make for a great judge.  It was developed through detailed discussions with more than 500 judges at all levels of the UK Judiciary. 

Among the necessary qualities of a great judge listed by the Board is compassion.  When judges sit around and reminisce about the pivotal historical moments of crime and justice, those moments where justice was emphatically done in the face of passion, vengeance, or hate – moments of folklore – the great judges are often described as having acted with compassion.  And at first blush, it might seem that this is what the Sentencing Commission is trying to get at with this amendment; to recognize that wrongdoing may be the product of one’s “environment, adverse childhood experiences, substance use, lack of educational opportunities, and familial relationships.” 

But compassion is much more than this.  Robert Sharpe, a renowned Canadian law school dean, court of appeals judge, teacher, and author of Good Judgment: making judicial decisions, captures in his book what judging with compassion is all about.  It is not, he reminds us, “taking a partial or incomplete view of the case.”  It is first and foremost a recognition that “judging is an intensely human process,” one that is complicated and multi-dimensional.  Sharpe explains that judges are “engaged in unravelling and resolving disputes that often have a profound impact on the lives” of many intersecting people, and that to render justice, the judge must try to understand them all and all the implications of their interactions, both present and future.

Sharpe quotes Chief Justice Beverley McLachlin on how judges must “see all sides of the problem . . . to have a better chance of making a decision that is both fair and just and seen as fair and just.”  It is the capacity to see all sides of the case and to understand the perspectives of all those impacted that is the sign of genuine judicial compassion.

And what about the intersection of compassion and law?  For Canadian Chief Justice Brian Dickson, “[f]or a judge to reach decisions which comport with justice and fairness, he or she must be guided by an ever-present awareness and concern for the plight of others and the human condition . . .  Compassion is not some extra-legal factor magnanimously acknowledged by a benevolent legal decision-maker.  Rather, compassion is part and parcel of the nature and content of that which we call ‘law.’”  For the compassionate judge, he says, “taking different perspectives into account . . . is the path out of the blindness of our subjective private conditions” and the way to make “autonomous, impartial judgment possible.”  Demonstrating the ability and the determination to grapple with and accommodate the entire picture of the human drama that unfolds in the courtroom is the challenge.  Compassion overlaps with wisdom and the capacity to marry faithfulness to the law with a rich understanding of the human complexities the case presents.

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Back in March – or was it August – the Sentencing Commission held a public hearing where those human complexities were on full display.  The Commission heard from neuroscientists, criminal justice scholars, prosecutors, defense attorneys, and probation officers.  These public hearings are often the Commission at its best.  The testimony at this particular hearing was moving and surprisingly nuanced.  “We’re all a work in progress,” a professor of neuroscience reminded us all.  Young people are certainly more “malleable and changeable,” but we all have the capacity for rationality and self-regulation – “a moral compass;” what one witness called, “the right stuff.”  Young people may not be fully formed, but neither are any of us. 

But the most compelling testimony – the ones full of fear and hope, pain and redemption, with all the aching details of human interaction that Judge Sharpe recounts in his book – came from the victims of crime and then those who had been convicted and had served time in prison.  These men and women told their stories, of horrible pain and of steps towards healing.  It was difficult to hear.  But it is part of the “rich understanding of the human complexities” that Sharpe discusses in the book, and hearing it – internalizing it into the sentencing decision, really – is what great judging is all about. 

There were stories of young people, their power to do right and wrong, their ability to decide and to change.  There were heartfelt pleas for the sentencing judge to see all the humanity behind a case – “even amidst our grief, we sought solace in the pursuit of justice” – for second chances, and to change the ending.  There was courage, and grace, and reverberations from the past.  “Each case is unique.  Each victim and family is unique.”

The guideline amendment on “Youthful Individuals” that goes into effect this week, unfortunately, is not grounded in this richness of human behavior and understanding and of youth, the way souls are forever impacted by violence, the capacities for redemption and healing.  Certainly, elsewhere in the Guidelines are other provisions relevant to some of these considerations.  But the Guidelines do not guide the sentencing judge through the multifaceted and knotty compassion that Judge Sharpe and his colleagues map out for judges and for us.  The guideline amendment is too simple and not sufficiently helpful.  It may be a figment of the Commission’s best intentions.  But it’s not nearly enough.

It’s hard to see something from different perspectives and in all its complexity, especially when so much is at stake.  Maybe when you’re old, it gets even harder. Maybe when you’re old, that’s when you really know nothing.  Or maybe we, the old, can just learn more than we think from our younger – youthful – sisters and brothers. The wise ones.  The ones who knew everything when they were young.