The quality of mercy and Justice Brennan


Last year I had the good fortune of participating in one of the Law Court's October arguments held in at a high school, before students.  One of the arguments had to do with sentencing, and everyone — the Justices, lawyers on both sides, the audience — all bemoaned the lack of an easy access repository regarding past sentences given, to assist a court in deciding what sentence to impose in an individual case by viewing what others have done in similar circumstances.

This month's ABA Journal has a short article that notes that a group is developing a "depravity scale" — "the first-ever attempt by researchers to objectively measure what societal standards of depravity are and to categorize crimes based on specific characteristics that society regards as more or less depraved," for the purposes of minimizing arbitrariness and eliminate bias in sentencing.  The scale involves a review of court decisions among other things, is due out in a year, and is designed to be a tool, not a strait jacket.  The pendulum is always swinging back and forth on trying to balancing the need for consistency while not strangling judicial discretion.  One answer, I think, can be tools like this, along with legislated parameters.  But you can't and shouldn't take the human element and discretion out of sentencing. 

Which leads me to the title for this entry.  The newspaper reported that Justice Brennan is stepping down at the end of next month.  I live in York County, where he and Justice Fritzsche are the two regularly presiding Justices, and this is a real loss.  (At least Justice Fritzsche will remain.)  Between them, they have a huge history of experience, are smart, quick and, really, what stands out about both of them, is that elusive quality of judicial temperment.

Each case to them involves individuals.  They are in control and they don't waste time.  But I think they understand that half the value of having a judicial process is closure – knowing that, win or lose, each party had the opportunity to make their case and was heard.  Ultimately, the court may (must) disagree with at least one side's position, but it's important to make all the parties understand that neither they nor their positions are belittled or dismissed without consideration.

Justice Brennan leads the way in this area.  In particular, every sentence to him, I believe, is something to which he gives great consideration, weighing all the factors carefully, including the value of second chances.  (I know the judge I clerked for gives each sentence a very hard look and listens closely to the lawyer's arguments, sometimes changing the sentence he was planning to give based on those arguments.)

Fairness and justice sometimes need to be tempered by mercy — understanding that the victims of a crime are having their day in court, too.  Balancing all the factors relevant in sentencing is tough – and it should be.  Peoples lives are at stake.  That's why you need good judges who both know the law and understand this human element.

Between them, I am sure that given their time on the bench, Justices Brennan and Fritzsche have seen it all.  Nothing can be new to them.  But remarkably, you wouldn't know it from their demeanor and process.  This is a pretty powerful attribute, and I hope whoever takes over Justice Brennan's position understands the importance of this quality, and how hard his shoes will be to fill.