In Part 49 of Inside the Robe, Judge Mader reflects on the influence of supervisors within the District Attorney’s office and discusses the seemingly arbitrary nature of sentencing policies.

April 28

As my day began, Cora said, “You know, if you keep complaining about inconsistencies in sentencing offers between different supervisors on different floors, they get together and talk. Then I get in trouble for offering dispositions that are regarded as too light. And I am going to be forced to get tougher.”

I looked at her in amazement. “Are you kidding me? Your supervisors think it’s okay to have the same crime sentenced differently on different floors of the same courthouse, and one defendant gets probation and one gets prison?”

A different prosecutor this morning asked to approach the bench, meaning that her conversation would be held out of earshot of anyone else in the courtroom. “I’ve got this case of a mentally ill woman who thought that she was stabbing her abusive ex-boyfriend. Instead, she was stabbing her new boyfriend. I’d be happy if the woman could be sent to a locked mental health facility. But my supervisor only wants state prison.”

The prosecutor continued, “I was thinking that if the defendant ‘pleaded open’ to you, you could give the defendant something other than state prison.” She then lowered her voice to a whisper. “By the way, we didn’t have this conversation.”

This happens often. The deputies assigned to cases are afraid to confront their supervisors and argue for what they believe is right. They want the judge to take the heat. That same prosecutor also wants to make a formal objection “on the record” in open court. The official transcript will reflect the prosecutor trying to follow the boss’s instruction, and the judge ignoring her. The supervisor can then blame the “bleeding heart” judge. I am wary of taking such pleas. Once I realized the prosecutor was talking to me about a pending case without the other side present, I should have ended the conversation.

April 29

I keep stewing over the arbitrariness of the DA’s office policy in sentencing drivers for evading the police. The public is taught to believe that the criminal justice system does not treat people arbitrarily. The reality is that different people in the same situations are not always treated similarly.

Just in my courthouse, other examples abound where people have been treated differently depending upon which floor their case was assigned. Is the DA supervisor harsh or lenient with evading cases? Marijuana dispensaries? Gun cases? Does the supervisor evaluate each defendant’s unique personal circumstances and criminal background, or is there a set sentence that will be applied to the same offense in all cases? Has a defendant gotten on the wrong side of a political issue such as the gun dealer earlier this month did?

These vagaries of justice do not have simple answers. The judgment of good trial prosecutors is not always trusted by their supervisors. Legislators do not always trust the judgment of judges in the trenches who listen to cases and evaluate appropriate sentences. The tough-on-crime era, beginning in the 1990s, has hamstrung judges in state courts like me, and in federal courts as well. All judges are confronted with “Mandatory Minimum Sentences” even in the most inequitable situations. If a judge deviates from a mandatory minimum that the legislature has decreed, an appellate court will reverse them. And prosecutors may shun that judge’s court. Judges become fearful of sentencing “outside the mainstream.” This timidity affects not just judges but prosecutors.

This morning’s calendar contained a case that will go to trial soon. The defendant, a rotund, pink-faced, twenty-four-year-old apartment manager, is charged with being an “accessory after the fact” to a murder. Gang members and criminal activity permeated the apartment house he was managing. The defendant, with a new young wife, jumped at the opportunity to get a free apartment as a perk for managing the building. Shortly after the defendant began his new job, a gang murder took place in an inside walkway of the apartment house. According to the defendant, who has no criminal record, he was threatened with harm by gang members unless he permanently erased a video that captured the shooting. The defendant admitted erasing the video.

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