The Sentencing Shuffle

I started my career as a public defender working in state court. Those cases, with a couple notable exceptions, were all about guilt or innocence. They may not have all been whodunits, but even the whytheydunits (as my boss called them) focused on culpability – manslaughter versus murder, self defense, what have you. Sentencing in such cases was mostly an afterthought, at least from an appellate standpoint.

Federal work is almost completely backwards. Fact is, we have very few cases where guilt or innocence is really an issue that can be fought over. Most often, the argumentative heavy lifting comes either before “trial” (of which there are vanishingly few in the first place) in suppression hearings or after trial at sentencing. My trial colleagues start talking about sentencing during their first meetings with clients, usually. It’s where the action really is in most federal criminal cases.

I say all that as background to this interesting story from the Washington Post (via) last week about Ricardo Urbina, a federal district court (aka trial level) judge who recently retired after 31 years on the bench. Largely, it argues, because he’s had enough of passing sentence upon people:

‘I do not have a passion for punishment,’ he said, a statement that helps explain why he is one of the more lenient sentencers on the D.C. federal bench, according to statistics. ‘If there is a way the court can contribute to the rehabilitation process, it is more likely the person will return to the mainstream.’

As an example of the kind of difficult analysis that Urbina is leaving behind, the story focuses on the sentencing hearing for a woman who had helped her boss in a fraud scheme, for which he had already been sentenced to four years in prison:

Because so much money had been stolen, federal prosecutors argued in court papers that Urbina should sentence the former office manager to the low end of the sentencing guideline range of 18 to 24 months in prison.

Her lawyer countered that Borgono deserved just a year of home detention and two years of probation because the Peruvian immigrant, who became a U.S. citizen in 2007, had not reaped a dime in the scheme’s proceeds beyond her $500-weekly salary. She also cooperated extensively with authorities and helped them build their case against her boss, a man sentenced by Urbina to nearly four years in prison. And, the attorney argued, she had the support of her community: The judge’s folder was filled with heart-felt letters from her relatives, friends and even her priest.

In the end, he gave her house arrest, probation, and restitution. Whether that’s the right or wrong sentence I have no clue – good defense lawyering, regardless. But think about what it must do to someone to weigh those kinds of things, day in and day out, and hold such power over the lives of other human beings. No surprise that, after three decades, Urbina would walk away.

As for judges with a passion for punishment . . . well, there’s them, too: