Judges are given considerable leeway in sentencing. No serious person thinks this is a bad idea. The question subject to debate, at least in academia, is whether their judgment and outlook are so uniformly to be trusted that the legislature should be disabled from establishing any mandatory sentencing limits.
The following story provides the answer all by itself. Its headline is, "Judge Cuts Pedophile's Prison Term Claiming 3-Yr-Old 'Asked' To Be Raped":
A California judge has caused outrage after slashing 15 years off the prison sentence of a pedophile convicted of raping a 3-year-old child.Orange County Superior Court Judge M. Marc Kelly cut the child rapist's prison term down to ten years from 25 years claiming that "he didn't mean to harm" the 3-year-old girl that he raped.He also backed the claim from child rapist Kevin Rojano that the young girl initiated the act of sodomy. Rojano said in his own defense that "she asked me to do it."
But wait. It gets better, all depending on your definition of "better."
Judge Kelly then trimmed a massive 15 years off Rojano's sentence, saying it would be "cruel and unusual punishment" to impose the maximum prison term because the 20-year-old lacked "callous disregard for (the victim's) well-being."Prosecutors said Rojano was playing video games June 4 in the garage of his Santa Ana home when a 3-year-old relative wandered in, and investigators said the man became sexually aroused by the child and assaulted her.The girl's mother was unable to get into the locked garage as she looked for the child, and prosecutors said Rojano covered the toddler's mouth to keep her from yelling.
The story continues:
Rojano let the girl out of the garage, and her mother was unaware of the abuse until her daughter complained of pain."In looking at the facts of Mr. Rojano's case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," the judge claimed in his decision."Mr. Rojano did not seek out or stalk (the victim)."He was playing video games and she wandered into the garage."He inexplicably became sexually aroused but did not appear to consciously intend to harm (the victim) when he sexually assaulted her."Kelly also said that Rojano, who had been abused as a child, deserved clemency because he said he regretted sodomizing the three-year-old girl.
It's all true. Next time, courtesy of his shortened sentence, Rojano can move up to a four year-old.
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I started off this entry by saying that mandatory sentencing was a subject of debate. On second thought, that needs qualification. It's not a subject of debate among serious people. The debate is almost exclusively, among the "thinkers" who roam the halls of academia and cannot bow low enough to the "defendants-are-victims" crowd. Actual victims, like this three year-old, well, hey, look, she'll get over it.
UPDATE: Some commenters have observed that the linked story is dated, written in a polemical style better suited to an op-ed, and not from a mainstream news outlet. I think on reflection that these criticisms have a degree of merit. Thus, readers might like to read about the same sentencing in this contemporaneous story from the Orange County Register: https://www.ocregister.com/2015/04/04/judge-reduces-mandatory-sentence-for-santa-ana-man-in-child-sex-assault/. They may also wish to refer to the 29-page Court of Appeals opinion vacating the sentence: http://www.courts.ca.gov/opinions/nonpub/D070919M.PDF.
The linked story also asserts that the rapist said that the three year-old "asked me to do it." That is not included in the other accounts of the story I have seen, raising a legitimate question whether it happened. But to raise the question is not to answer it; given other things the defendant said, and his false denials of other aspects of his behavior, I could hardly put it past him. I do not have the transcripts from which this question could be answered definitvely, however. Lacking direct rather than secondary sources, I cannot be as sure as is appropriate to the standards of this blog that he said it. Accordingly, I ought not to have included it with the numerous other statements in the article, none of which is impeached or even seriously questioned by other sources.
All that said, all the central aspects of the story are correct as stated, so far as I am able to determine from any account I can find. So too is the lesson to be drawn from it, to wit, that judges are capable of astonishing lapses in judgment, and willfulness, and naivete, and that they, like all the rest of us, behave better when bound by rules than otherwise.
Note no concern for the victim. The "learned" pride themselves with finding "nuance".
Sometimes the rape of a 3 year old is nothing more than the despicable rape of a 3 year old.
"Sometimes the rape of a 3 year old is nothing more than the despicable rape of a 3 year old."
Au contraire, mjs. In this case it is so much more . .. . after this human detritus has had time to reflect on what he did, he still came up with this "defense." I shouldn't say this, but I hope that his fellow prisoners use that excuse when he is subject to their predations.
Unfortunately, you never know what prisoners will do. Did you see the video of the prisoners in Chicago cheering the 4 time felon who murdered the Police Lt.
Yes I did. Appalling.
This sentencing occurred in December 2014. A colleague of mine in Orange County tells me that the decision was reversed by the Court of Appeal.
The judge was the subject of a recall effort, with no success.. He faces a contested judicial election shortly.
"This sentencing occurred in December 2014. A colleague of mine in Orange County tells me that the decision was reversed by the Court of Appeal."
Thank goodness.
"The judge was the subject of a recall effort, with no success. He faces a contested judicial election shortly."
Thank goodness too for elections. Judicial independence is important, but judicial accountability, like the accountability of any public officer, is the competing value. The electorate should have a say in who issues the rulings under which it must live.
This story is inaccurate: https://www.snopes.com/sentenced-reduced-3-year-old-asked/
-Jihan
The Court of Appeal opinion is here.
Jihan --If you want to assess whether the story is accurate, one place to start would be by reading the Court of Appeals opinion Kent linked. I did, and it seems to me that the story I discussed is accurate for every salient point for which I posted it, to wit, whether judges are uniformly of such rectitude that they should be free of any legislatively imposed sentencing rules.
Indeed, the Snopes piece you link ADMITS (down in its 13th paragraph) that the story is "a (mostly accurate) summary of the case." When you get past Snopes's boatload of critical adjectives, its article questions ONLY ONE ASSERTION in the story, to wit, that the defendant said the toddler "had asked to be raped."
Snopes questions this by saying the sources it reviewed (a radio broadcast, a story in the Orange County Register, the sentencing judge's analysis, and the government's brief) never said the defendant asserted that the girl had asked to be raped.
I'm perfectly willing to assume that part of the Snopes story is correct. But simply because a fact was not mentioned in those sources does not mean it didn't happen (although it certainly raises the question).
If you want to know whether "the girl asked me to rape her" episode ever occured, the more reliable places to look would be the TRANSCRIPT of the social worker's interview with the victim and the TRANSCRIPT of the court proceeding against the defendant. Saying categorically that it did not happen simply because it did not appear in indirect sources seems a bit shaky. The transcripts are the best evidence.
Still, there might be something to the criticism in this sense: Does a three year-old even know the word "rape?" And if she does, would she be able correctly to apply that word to anal rather than vaginal intercourse? I don't know. Not my area, I'm very happy to say.
It seems more plausible to me to think that a three year-old might have said, "What is that thing coming out of your pants? Can I look?", or some such. Like you, I have my doubts that the victim said in haec verba, "Would you rape me."
So what that means is that one segment of the phrasing of the story might have been exaggerated. (Or might not; again, we can't know until we see the transcripts.
Let's assume arguendo that the piece is clickbait journalism in that one respect. That fact, if it is a fact, does nothing to undermine the basics of this episode: the DEFENDANT'S acts, the judge's shocking dismissal of those acts, and the flagrant, pro-criminal legal errors about the law of sentencing he made in his opinion.
I mean -- hello! -- do you really think there is any change in an ADULT MALE'S culpability whether he is, or whether he is not, asked by A THREE YEAR OLD to have sex (if a three year-old even knows what sex is, which I doubt)?
Is that what you think? That, whether she said X or Y or Z or nothing, that the THREE YEAR-OLD takes part of the blame away from the rapist?
Let's summarize what your attack is: Your source (Snopes) grudgingly admits that the account is a "mostly accurate summary of the case." It goes to town on a single feature, "she asked me to do it," but never cites or quotes the relevant transcripts, and conspicuously refrains from saying, "We have read all the TRANSCRIPTS and they contain no such thing."
Even if Snopes' narrow criticism be true, however, it makes not a particle of difference to the argument I assert. As the court of appeals opinion made clearer than I did, and at greater length as well, the sentencing judge was oblivious and obtuse about the horrid facts of the defendant's behavior; minimized the defendant's repeated lies about what he had done to the girl; minimized the long-term damage the victim is likely to suffer; and made seemingly intentional mis-statements of the law. He did all this to engineer a huge break for a child rapist.
I'm sorry, Jihan. You can't help knowing that there is no legal or moral difference in an adult male's culpability whether or not a three year-old -- that would be a THREE YEAR-OLD -- supposedly "asks for it." Nor can you help knowing that this story is a dynamite example of why the legislature should be able to establish mandatory sentencing rules. And that's the real reason you want to criticize it -- a criticism lacking a single word of skepticism about the rapist or the law-optional judge who was so eager to impose a grossly illegal sentence.
This case is also another dynamite example of how appellate review can and often will correct sentencing mistakes involving judges being too lenient. It would be foolish to deny that trial judges often makes mistakes. All humans do. On the record decision-making requirement and appeals can reduce and correct mistakes. Judges, as this case shows, generally have to put sentencing decisions on the record and those decisions are subject to review. Prosecutors generallly do not, and this is a big reason why MMs can create real risks of real injustice, especially in federal courts when they apply to nonviolent offenses.
How exactly does this case serve as an example for your question regarding whether judges should have sentencing rules? There was a "rule" in place at the time of sentencing; the California law that mandates a sentence of 25-years-to-life for a conviction of sodomy with a child 10 years of age or younger. Your headline asks whether there should be sentencing rules for judges (which you answer in the affirmative) and then you use as an example a case in which there was a sentencing rule in place. The issue in this case was that the trial judge "concluded that a sentence of 25 years to life for the conviction under section 288.7, subdivision (a) would constitute cruel and unusual punishment" under the California Constitution and the Eighth Amendment (quoted from Court of Appeals opinion).
The state appealed this determination and the appellate court addressed the issue of "whether, under the California Constitution, imposition of a 25-year-to-life sentence for Rojano's act of sodomy against Jane Doe constitutes cruel and unusual punishment, in that " 'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" The appellate court went through the 3-pronged disproportionality test for a criminal sentence and rejected the trial court's determination. The appellate court then concluded by stating, "The sentence is reversed, and the matter is remanded with directions for the trial court to resentence Rojano consistent with the provisions of section 288.7, subdivision (a)." The trial court was instructed to resentence the defendant in accord with the sentencing rules applicable to that offense, given that in this case such a sentence did not constitute cruel and unusual punishment. In short then, a trial judge exercised judicial review and decided the issue in a one direction, and an appellate court decided the issue in the opposite direction. That is a fairly typical component of the adjudicatory process in our judicial system.
It would seem that your issue here is more with judicial review and constitutional provisions than it is with sentencing rules, since it is the former than led to downward departure even when the latter were present. This would seem to present an issue with any sentencing rule that is put in place though. A sentencing judge always has the option of finding a legislatively mandated sentence unconstitutional under the cruel and unusual punishment provision of the state or federal constitution. So, in addition to sentencing rules, I would think that you would also want to advocate for removing from trial judges judicial review of those rules in a specific cases (although that then leads to whether such a denial is itself a rule subject to judicial review....)
I don’t think you can expect people to trust judges on sentencing when the sentence is dependent on the personal bias of the judge. Equal justice under law is a mockery when there is no similarity of sentence for similar crimes.
Doug, yes, indeed, but the correction can only happen if the trial judge is subject to a rule and does not have unlimited discretion or even discretion subject to broad deference on appeal. The "dynamite example" therefore supports the thesis of the original post.
At the risk of being overly repetitious, your argument against mandatory minimums has some weight, but we need to replace them with mandatory guidelines.
1. "How exactly does this case serve as an example for your question regarding whether judges should have sentencing rules?"
Rules make a specific and effective remedy possible on remand, rather than just hoping the trial judge cleans it up.
Or, to put it differently, the answer to your question is provided in the question itself, a few lines farther down (emphasis added): "... the matter is remanded WITH DIRECTIONS FOR THE TRIAL COURT TO RE-SENTENCE ROJANO CONSISTENT WITH THE PROVISIONS OF SECTION 288.7, SUBDIVISION (A)."
Without the referenced statutory mandatory minimum. we could have a long-running tug of war between the trial and appellate courts. We should recall here that appellate courts almost always remand, not for a specific sentence, for for re-formulation of the sentence "consistent with the reasoning set forth herein."
A similar set of circumstances illustrated the need for statutory minimums in the famous Jack Weinstein case (US v. Corey Reingold). There, the court of appeals, in reversing, explicitly breathed a sigh of relief that, while Jumpin' Jack could still depart downward on remand, at the least he could be, and was, REQUIRED TO OBEY THE STATUTORY MINIMUM.
2. More broadly, the answer to your question is easy: An ounce of prevention is worth a pound of cure. It's more effective and less expensive to have the minimum sentence established ab initio than indulge in a (perhaps long) debate about it between higher and lower courts.
The willfulness of the judge here was very unusual. Most judges who are ill at ease with a mandatory minimum will go along with it anyway rather than jump the shark to find some reason for refusing.
Yes, a MM statute is not a 100% insurance policy that the MM will be obeyed, but it is very useful in nudging skeptical judges toward compliance. This increases both the law-orientation and the efficiency of the sentencing system.
3. More broadly still, why do we have ANY statutes that affect sentencing? We have a statute that forbids judges from accepting bribes to give leniency, but those statutes can be and have been disregarded on a massive scale (see Operation Greylord in Chicago).
Does that mean we should get rid of them?
Of course not. It's a fact of life that statutes can and occasionally will be broken. But on the whole, in addition to providing a specific remedy when that happens, they incentivize obedience a priori, which is one of the main things we want law to do.
4. So that is your answer. I would close by sounding a note of regret that your discussion, while quick to perceive a defect in the statute (the defect being the truism that it, like any statute, can be broken), at no point criticizes the sentencing judge -- a judge whose "work" was not only legally blunderbuss, but added to the defilement of a three year-old victim.
Perhaps I should have learned by now that the defense side really does see crime victims as human garbage. But I was holding out hope that such a view would not extend to toddlers.
Kent: Unlike me, you are rarely "overly repetitious." And I agree there should be appellate review with a lot more teeth than we see in the federal system to reverse unduly low and unduly high sentences. And I think we share an interest in nuanced and reviewable rules that guidelines present over crude MMs. I would also like to see nuanced and enforceable prosecutorial guidelines as well as sentencing guidelines.
Bill: You are right that "it's more effective and less expensive to have the minimum sentence established ab initio" via prosecutorial charging decisions. So, to flip your question, why give judges ANY sentencing discretion? Isn't it going to "more effective and less expensive" to let the prosecutor pick a mandatory sentence in every case?
I do not mean to be snarky, I just mean to highlight that, in practice, the debate here is often over who will have the most control over sentencing outcomes. For reasons I have explained, I generally prefer imperfect judges over imperfect prosecutors because greater transparency and review can be "very useful in nudging" toward better decision-making. If we had a lot more transparency and review of the decisions made by prosecutors, I might look at this a lot differently. And, if MMs get more nuanced so that they operate more like guidelines, they would be less worrisome --- and, like Senators Grassley, I think the SRCA of 2017 moves us closer to a better balance on this front in the federal system and that is why I am rooting for that legislation to pass.
Perhaps I misunderstand the implication you are trying to make in this post then. You preface the story with, "The question subject to debate, at least in academia, is whether their judgment and outlook are so uniformly to be trusted that the legislature should be disabled from establishing any mandatory sentencing limits. The following story provides the answer all by itself"
So, the question that you are addressing is whether a legislature should be able to establish mandatory sentencing limits. You then cite this case as providing the answer to that question. But, as I stated previously, the case involved an offense that was covered under a mandatory sentencing statute. What exactly is the answer then that this case provides all by itself? It appears from your quoting of another blog that this is a case for why mandatory sentencing is needed, as such statutes would limit the discretion of the trial judge and prevent sentences such as this one from occurring. This seems further supported by your statement that, "Next time, courtesy of his shortened sentence, Rojano can move up to a four year-old."
But Rojana did not get a shortened sentence because of the mandatory sentencing statute. Instead, on remand, Rojana will (or possibly has already) receive a sentence of 25-years-to-life. Therefore Rojana has not had the courtesy of a shortened sentence and as such would apparently not be able to "move up to a four year-old." The argument that you make in your 2/19 response casts the lesson to be learned from this case in a different light then your original post. The original post appears to infer this case is what happens in the absence of mandatory sentencing legislation. After additional information is provided on the procedural history of the case, you then argue that this case supports the need for mandatory sentencing because it provides the appellate court with a rule to reference on remand.
The point I was trying to articulate was that your initial presentation of the case does not appear consistent with the facts of the case given that a mandatory sentencing statute was in place, but yet a downward departure still occurred. In other words, even with a statute in place mandating a minimum punishment (which references your initial question regarding whether a legislature should be disabled from establishing limits) a trial judge was still able to deviate downwards; in this case by 15 years. The downward departure occurred even in the presence of a mandatory minimum statute. That is why I questioned the use of this case as an example for your argument. Your response to my argument appears different from the original inference you were trying to draw from the case in stating that the case provides the answer all by itself to your initial question.
"So that is your answer. I would close by sounding a note of regret that your discussion, while quick to perceive a defect in the statute (the defect being the truism that it, like any statute, can be broken), at no point criticizes the sentencing judge -- a judge whose "work" was not only legally blunderbuss, but added to the defilement of a three year-old victim. Perhaps I should have learned by now that the defense side really does see crime victims as human garbage. But I was holding out hope that such a view would not extend to toddlers."
It was not my intention to criticize the mandatory statute that was applicable in this case. Rather, given what I have stated was what I believed your initial purpose was in citing this case, I was attempting to explain why I did not see this case as a good example to support your claim. The fact that all statutes are subject to judicial review does not lead me to claim that all statutes are defective. The reference was with regards to your original post as it led to the conclusion that this case is what can happen in the absence of mandatory sentencing statutes.
With regards to your final claim, you are correct that I did not make an evaluative or normative judgment regarding the trial judge. Nor did I make such judgement on the statute (as previously stated), the defendant, the prosecutor, the legislature, the appeals court, or any other aspect of the case. My intention was understanding the case as opposed to criticizing aspects of it. That my lack of criticism leads you to infer my approval is fallacious. You present the situation as a false dilemma in which an individual must either condemn or condone (and the absence of one means the acceptance of the other), and this action then places that individual in one of two groups (pro defense or pro prosecution). Once an individual is placed in one of these two groups you then attack their character through additional inference with claims such as, "Perhaps I should have learned by now that the defense side really does see crime victims as human garbage."
Your claim follows the form: (a) You did not criticize the judge in this case; (b) The judge in this case added to "the defilement of a three year-old victim"; (c) Because you did not criticize the judge you therefore must approve of the judge's decision; (d) Because you approve of the judge's decision (conclusion c) you are a member of the defense side; (d) Members of the defense side see crime victims as human garbage; (e) Therefore, you see crime victims as human garbage.
This argument could be analyzed further, but just articulating the form you use highlights the numerous assumptions and inferences at play, and brings to the forefront issues in logic.
Bill - I wasn't trying to argue with the broader point, which I agree with. I'm not criticizing mandatory minimums, and I'm certainly not suggesting that a child (or anyone else) could "ask for it."
But the article linked is from a fake news site. And I don't mean CNN - this one publishes straight up conspiracy theories. One of the top links on their homepage is a "shocking expose" on the Illuminati. Another is about how both Obama and Trump are close relatives of Hitler. There's also an article about how Bill Cosby was framed to stop him from buying NBC. There's no indication that the headline came from a review of the transcript - more likely, it was simply made up.
-Jihan
The OC Register's take is pretty much the same...
https://www.ocregister.com/2015/04/04/judge-reduces-mandatory-sentence-for-santa-ana-man-in-child-sex-assault/
The site from which the story is taken is -- if not off the wall, not that far from it, as Jihan notes.
But I'm not peddling the site. The question is whether the ARTICLE is true. As TarlsQtr says, and David Boyd implies, it is. There is a single claim ("she asked me to do it") out of many that has been plausibly questioned, although not shown to be erroneous by any citation to a direct source.
But all that's a diversion; in no sane world does it reduce to any extent an adult's culpability for child rape that he was, on one account or on any account, "following" a three year-old's request.
The rape is appalling whatever the kid said, and the judge's one-excuse-after-the-next leniency is no less appalling. The idea that we should give no-rules-in-these-parts discretion exclusively to one branch of government -- the least representative branch -- just doesn't withstand examination.