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Last week, a couple of remarkable events happened in a Texas courtroom. First, despite being allowed to invoke the castle doctrine, a jury convicted former police officer Amber Guyger of murder for wrongly entering the apartment of Botham Jean and shooting him as he ate a bowl of ice cream on his couch. Even in such cases where the officer is clearly in the wrong, convictions are rare to come by. Possibly even more remarkable was that during Guyger’s sentencing, the brother of the victim, Brandt Jean, not only forgave his brother’s killer but also embraced her. Brandt’s act of forgiveness has received wide praise, however, the 10-year sentence imposed by the judge on Guyger for a murder conviction received immediate widespread condemnation.
It might seem hard to argue with the critics of the judge who imposed Guyger’s sentence. After all, if the circumstances had been reversed it is difficult to see any judge physically embracing a cop killer with such reckless disregard for life the way this judge embraced Guyger. This judge even gave Guyger her personal bible. Such personal favor towards certain convicted murderers by a court is nevertheless a reflection of the amount of personal discretion state and federal judges possess in sentencing. One could claim that such deference is a good thing, but the stats demonstrate the exact opposite is true and that personal bias dominates the process.
The level of deference to judges even allows for outcomes in sentencing that juries expressly rejected. For example, five years ago the U.S. Supreme Court denied cert in Jones v. United States, a case where despite being acquitted by the jury, a judge nevertheless sentenced a defendant for the more serious crime. The sentencing practice in the Jones case, where judges exercise discretion to increase sentences based on conduct for which a defendant has been acquitted by a jury is called “acquitted conduct” and if it sounds unbelievable to you, it’s because it should be. Encouragingly, U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, have introduced the Prohibiting Punishment of Acquitted Conduct Act of 2019 that would end “acquitted conduct” sentencing. However, just like the First Step Act, I expect this legislation to be opposed by the same lying, disingenuous, tough-on-crime voices.
Although the tough-on-crime position has dominated our criminal justice system for centuries, it is remarkable that it has enjoyed so much influence despite the fact that it does not match the wishes of survivors/victims of violent crime. Recently, Michelle Alexander addressed the discrepancy between the often-harsh system of sentencing and the more lenient wishes of victims who prefer intervention and rehabilitation rather than prison. The reason that victims often reject long prison sentences when given the option is simple, per the Alexander piece:
This is not because survivors, as a group, are especially merciful. To the contrary, they’re pragmatic. They know the criminal justice system will almost certainly fail to deliver what they want and need most to overcome their pain and trauma. More than 95 percent of cases end in plea bargains negotiated by lawyers behind the scenes. Given the system’s design, survivors know the system cannot be trusted to validate their suffering, give them answers or even a meaningful opportunity to be heard. Nor can it be trusted to keep them or others safe.
In fact, many victims find that incarceration actually makes them feel less safe. They worry that others will be angry with them for reporting the crime and retaliate, or fear what will happen when the person eventually returns home. Many believe, for good reason, that incarceration will likely make the person worse, not better — a frightening prospect when they’re likely to encounter the person again when they’re back in the neighborhood.
Of course, Alexander agrees that “[s]ome people do need to be separated in order to keep others safe.” However, Alexander demonstrates that not only does our system of locking people up on such a massive scale make us less safe, it also fails to take accountability seriously:
Our criminal injustice system lets people off the hook, as they aren’t obligated to answer the victims’ questions, listen to them, honor their pain, express genuine remorse, or do what they can to repair the harm they’ve done. They’re not required to take steps to heal themselves or address their own trauma, so they’re less likely to harm others in the future. The only thing prison requires is that people stay in their cages and somehow endure the isolation and violence of captivity. Prison deprives everyone concerned — victims and those who have caused harm, as well as impacted families and communities — the opportunity to heal, honor their own humanity, and to break cycles of violence that have destroyed far too many lives.
In other words, a key element of what sentencing should be about, accountability, is entirely missing from our system. It therefore seems clear that in order to create a safer, more accountable society, we have to rely less on personally distributed “mercy” from being locked in a cage and exposed to more violence and instead focus on more pragmatic solutions victims regularly prefer.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.