The paradox of Justice: How judicial discretion subverts the consistency of law

“ It is true that trial judges are in a sense 'professional sentencers'; presumably any given judge, to the extent that he actually does exercise independent judgment on the question, [70] will do his best to avoid conscious inconsistency. But there remains a multiplicity of sentencing judges, all of whom have been expressly told by the Supreme Court of California not to seek guidance for their decision from the statute, from that court's opinions, or indeed from any source outside their own, individual opinions. See supra, at 304-305. ”

“ Like Ohio, California fails to provide any means whereby the fundamental questions of state policy with regard to capital sentencing may be authoritatively resolved. They have not been resolved by the state legislature, which has committed the matter entirely to whatevery judge or jury may exercise sentencing authority in any particular case. But they cannot be authoritatively resolved by the sentencing authority, not only because the California Supreme Court has expressly ruled that that is not part of the sentencing function, People v. ”

“ For the judicial Sentence is a special act of public Distributive Justice performed by a Judge or Court as a constitutional Administrator of the Law, to a Subject as one of the People. Such an act is not invested inherently with the power to determine and assign to any one what is his. Every individual among the people being merely passive in this relation to the Supreme Power, either the Executive or the Legislative Authority might do him wrong in their determinations in cases of dispute regarding the property of individuals. ”

“ The main seat of individual justice and its operation is, after all, in the moral sense of men, governing their own conduct and modifying so far as possible the mass of injustice continually arising in the process of life, by such relief as they can give by personal influence and action both on persons and in the realm of moral opinion. ”

“ What is right for me to do now, seeing that I am here with a certain character, and a certain moral sense as part of it, is just what I feel to be right. The individual conscience is, in the moment of volition, the only possible judge of what is right; there is no conflicting claim. But if we are deliberating about the future, we know that we can modify our conscience gradually by associating with people, reading certain books, and paying attention to certain ideas and feelings; and we may ask ourselves, ‘How shall we modify our conscience, if at all? ”

“ The last century would have eliminated individualization of application. Now, as in the sixteenth- and seventeenth-century reaction from the strict law, come those who would have nothing else; who would turn over the whole field of judicial justice to administrative methods. If we must choose, if judicial administration of justice must of necessity be wholly mechanical or else wholly administrative, it was a sound instinct of lawyers in the maturity of law that led them to prefer the former. ”

“ Alike in Congress and here it has been repeatedly insisted that a question like that raised by petitioner-was there sufficient evidence for submission to a jury-is not proper for review in this Court. The circumstances in the type of situation before us are infinite in their variety. Judicial judgments upon such circumstances are bound to vary with the particularities of the individual situation. The decision in each case is a strictly particular adjudication-a unique case since it turns on unique facts-and cannot have precedential value. ”

“ The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court's self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political, and not juridical — a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive. ”

“ Another commentator advocates expansion of the federal court's power to compel party joinder for the purpose of compelling multiple plaintiffs to [NJ459] join in a single proceeding their claims against common defendants:
Nonetheless, multiplicity is a harm to society's legitimate interest in judicial efficiency. Courts are a public resource, providing publicly financed resolution of private disputes.... The duplication of effort is a major cause of the protraction of time needed to resolve cases and cannot be justified by plaintiffs' selfish strategic desire to sue separately. ”

“ The Government cannot, and does not, make any promise or representation as to what sentence your client will receive. Moreover, it is understood that your client will have no right to withdraw your client’s plea of guilty should the Court impose a sentence that is outside the Guidelines range or if the Court does not follow your client’s or the Government’s sentencing recommendation. The Government and your client will be bound by this Agreement, regardless of the sentence imposed by the Court. ”

“ Before we speak of the good proper, in opposition to the bad, which has been explained, we must touch on an intermediate grade, the mere negation of the bad: this is justice. The nature of right and wrong has been fully explained above; therefore we may briefly say here, that he who voluntarily recognises and observes those merely moral limits between wrong and right, even where this is not secured by the state or any other external power, thus he who, according to our explanation, never carries the assertion of his own will so far as to deny the will appearing in another individual, is just. ”

“ On the other hand, if we suppose that the right and the wrong are at all times equally possible to an individual; that when he chooses the one, he might, in the same identical circumstances, choose the other; infinite meaning attaches to the words, ought, obligation, merit and demerit, when it is said that an individual thus circumstanced ought to do the right and avoid the wrong, and that he merits reward or punishment, when he does the one, or does not do the other. ”

“ But if every volition is fixed by an absolute necessity, then neither can the individual be supposed to have power to do otherwise than he actually does, nor, all things considered, can it be supposed there could have been, at that precise moment and in that precise relation, any other volition. The volition is fixed, and fixed by an infinite and necessary wisdom. We cannot escape from this difficulty by perpetually running the changes of—“He can if he will,”—“He could if he would,”—“There is nothing wanting but a will,”—“He has a natural ability,” &c. ”

“ Of how great a multitude of intellectual relations does a scientific or even an artistic judgment imply the coincidence and concurrent action! And yet these are merely private judgments, which involve an assenting feeling in the individual, but beyond that can not pretend to any valid authority. In practical life the judicial function in the state alone furnishes an adequate standard for estimating the high rank which the faculty of judgment holds as the center of the human consciousness. ”

“ If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. ”

“ If any one thinks that he will pervert the power of justice in the minds of the judges, and unseasonably litigate or advocate, let any one who likes indict him for malpractices of law and dishonest advocacy, and let him be judged in the court of select judges ”

“ Now and then an extraordinary case may turn up, but constitutional law, like other mortal contrivances, has to take some chances, and in the great majority of instances, no doubt, justice will be done. ”

“ In contrast, under a determinate-sentencing system, the discretion the judge wields within the statutory range is tightly constrained. Accordingly, our approval of discretionary-sentencing schemes, in which a defendant is not entitled to have a jury make factual findings relevant to sentencing despite the effect those findings have on the severity of the defendant's sentence, demonstrates that the defendant should have no right to demand that a jury make [p549] the equivalent factual determinations under a determinate-sentencing scheme. ”

“ Third, where jury sentencing involves such a decision, determination of the ultimate question-how many years a defendant will actually serve-is generally placed very substantially in the hands of a parole board a single, continuing board of professionals whose general supervision and accumulated wisdom can go far toward insuring consistency in sentencing. And finally, in most cases where juries are asked to fix a convicted defendant's sentence at one or another term of years, they must inevitably be aware that, no matter what they do, the defendant will eventually return to society. ”

“ We are thus constrained to reject the suggestion that a desire to speak to one's sentencer unlawfully compels a defendant in a single-verdict capital case to incriminate himself, unless there is something which serves to distinguish sentencing-or at least capital sentencing-from the situations given above. Such a distinguishing factor can only be the peculiar poignancy of the position of a man whose life is at stake, coupled with the imponderables of the decision which the jury is called upon to make. ”

“ While left unrepealed, a fair and conscientious Jury will never do injustice, though a particular statute or custom demand it, and a wicked Judge insist upon the wrong; for they feel the moral instinct of human nature, and look not merely to the letter of a particular enactment, but also to the spirit and general purpose of law itself, which is justice between man and man. ”

“ Consistency is not always the guarantee of truth; but there may be a consistency in a theory so variously tried and exemplified as to lead to belief in it, as reasonably as a witness in a court of law may, after a severe cross-examination, satisfy and assure judge, jury, and the whole court, of his simple veracity. ”

“ If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. ”