# Four questions about a judge's power in sentencing in court **URL:** \ **Category:** Factual Questions\ **Created:** [April 9, 2016, 4:21am UTC](https://boards.straightdope.com/t/four-questions-about-a-judges-power-in-sentencing-in-court/751620 "2016-04-09T04:21:14Z")\ **Posts on this page:** 8\ **Page:** 1
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [April 9, 2016, 4:21am UTC](https://boards.straightdope.com/t/four-questions-about-a-judges-power-in-sentencing-in-court/751620/1 "2016-04-09T04:21:14Z")
(1) Has there ever been a judge who gave a bizarrely, inexplicably light sentence for a crime - for instance, just 2 years in prison for first-degree murder? (2) What can be done if a judge has a pattern of discrimination in sentencing - for instance, sentencing African-American criminals to extremely heavy penalties and sentencing white criminals to extremely light penalties, for identical crimes under similar circumstances? (2) If the judge disagrees with the jury’s verdict, does he have any power to do anything about it? Can a judge, legally, “mitigate” what he considers to be an incorrect verdict by deliberately giving the convict as light a sentence as possible? (4) Is there any check and balance on a judge’s power in contempt-of-court charges? What if a judge is going around slapping contempt-of-court charges on people for things that aren’t contempt of court? (i.e., “Sneezing repeatedly! Contempt of court.” “Wearing a blue necktie! Contempt of court.” etc. etc.) ---
**Author:** ![slash2k](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@slash2k](https://boards.straightdope.com/u/slash2k)\ **Post date:** [April 9, 2016, 3:03pm UTC](https://boards.straightdope.com/t/four-questions-about-a-judges-power-in-sentencing-in-court/751620/2 "2016-04-09T15:03:14Z")
Since nobody else has answered, I’ll take a shot. My knowledge is based on U.S. law only. > [@Velocity](#): > > (1) Has there ever been a judge who gave a bizarrely, inexplicably light sentence for a crime - for instance, just 2 years in prison for first-degree murder? I don’t know about that particular sentence, but yes, controversial sentences happen. For example, in my area a man was convicted of repeatedly raping and sodomizing a 14-year-old; [the judge gave him probation](http://cjonline.com/stories/052607/loc_172915399.shtml). In Kansas, as in many states, criminal sentences are now controlled by state law, in our case by the Kansas Sentencing Guidelines Act. That law basically says a defendant convicted of Crime A, who has a criminal history of C, should serve a sentence between X and Y months. For example, a defendant convicted of a Level 1 crime (e.g., rape) who has no prior criminal record should serve between 147 and 165 months; for the same crime, a defendant with a very extensive criminal history should serve between 592 and 653 months. A sentence departing from this range must be accompanied by findings of fact and reasons made on the record by the judge justifying the departure, and is subject to appeal by either the prosecution or the defense. If the Court of Appeals or the Kansas Supreme Court says the non-guidelines sentence is not supported by the evidence in the record constituting substantial and compelling reasons, they can order a new sentencing hearing. > [@Velocity](#): > > (2) What can be done if a judge has a pattern of discrimination in sentencing - for instance, sentencing African-American criminals to extremely heavy penalties and sentencing white criminals to extremely light penalties, for identical crimes under similar circumstances? Most states have adopted some variant of the Model Code of Judicial Conduct, which was promulgated by the American Bar Association in 2007. In my state, for example, it has been adopted as the [Kansas Code of Judicial Conduct](http://www.kscourts.org/Rules/Judicial_Conduct.asp). Among other rules, the code requires “A judge shall perform the duties of judicial office impartially, competently, and diligently.” Anyone may make complaints about a judge’s conduct, which are investigated by the Kansas Commission on Judicial Qualifications. If the complaints are upheld, the judge may be subject to “informal advice,” formal censure, a cease-and-desist order, or in extreme cases removed from the bench by order of the Kansas Supreme Court. In the federal system, removing a judge requires impeachment by Congress. > [@Velocity](#): > > (2) If the judge disagrees with the jury’s verdict, does he have any power to do anything about it? Can a judge, legally, “mitigate” what he considers to be an incorrect verdict by deliberately giving the convict as light a sentence as possible? He or she can, although that is again usually subject to appeal. The judge in federal court and some states may also grant a “judgment of acquittal,” basically saying that as a matter of law no reasonable jury could have reached a guilty verdict, so the jury’s verdict is set aside. The prosecution has the right to appeal this finding as well, and if a higher court overturns the finding, the guilty verdict is reinstated. > [@Velocity](#): > > (4) Is there any check and balance on a judge’s power in contempt-of-court charges? What if a judge is going around slapping contempt-of-court charges on people for things that aren’t contempt of court? (i.e., “Sneezing repeatedly! Contempt of court.” “Wearing a blue necktie! Contempt of court.” etc. etc.) See #2 above. Also, sentences for contempt are subject to appeal, and occasionally are overturned by a higher court. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 9, 2016, 3:23pm UTC](https://boards.straightdope.com/t/four-questions-about-a-judges-power-in-sentencing-in-court/751620/3 "2016-04-09T15:23:33Z")
> [@](#): > > Originally Posted by Velocity > (4) Is there any check and balance on a judge’s power in contempt-of-court charges? What if a judge is going around slapping contempt-of-court charges on people for things that aren’t contempt of court? (i.e., “Sneezing repeatedly! Contempt of court.” “Wearing a blue necktie! Contempt of court.” etc. etc.) [Or how about wearing pants](http://www.seattleweekly.com/2002-08-28/news/judging-jeanette/)? > [@](#): > > In the fall of 1999, Burrage was shocked that some women attorneys in her court wore pantsuits—something she says she had never seen before. She told them the next time they appeared before her they should wear skirts. She recalls one of the attorneys asking, “If we don’t do it, are you going to sanction us?” Burrage remembers replying, “I guess I might.” The issue hit the press and caused a cultural tsunami. In the meantime, she had e-mailed the other 49 Superior Court judges and asked them about their dress policy. They informed her that they did not require skirts, so she withdrew her threat. Burrage was voted out of office in November 2000 ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [April 9, 2016, 5:48pm UTC](https://boards.straightdope.com/t/four-questions-about-a-judges-power-in-sentencing-in-court/751620/4 "2016-04-09T17:48:05Z")
In England and Wales, there are sentencing guidelines, drawn up by the Sentencing Council (made up of senior judges and experts in various law-related fields) and giving the criteria for more or less severity within the statutory tariff, and the Crown Prosecution Service can appeal against what it considers too lenient a sentence (not often used). A judge who repeatedly does odd things in sentencing or in any other aspect of the way they do their job (or indeed misbehaves outside the court) may well be investigated and if necessary be disciplined by the senior judges in charge of the particular area of the judiciary, in various ways, like suspension or dismissal. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [April 9, 2016, 7:54pm UTC](https://boards.straightdope.com/t/four-questions-about-a-judges-power-in-sentencing-in-court/751620/5 "2016-04-09T19:54:05Z")
In Canada, the sentence can be appealed by either side. So can the verdict. In one notorious case, a not guilty verdict was appealed and set aside. The appeal judge substituted a guilty verdict stating that a certain testimony should not have been allowed and without it the jury would have convicted. He was overruled and the case retried. A hung jury resulted. Then a second hung jury. Finally, the crown (that is prosecution), gave up. It will not surprise you that he was an abortion doctor. The evidence that was thrown out concerned medical necessity. ---
**Author:** ![bomberswarm2](https://avatars.discourse-cdn.com/v4/letter/b/c37758/32.png) [@bomberswarm2](https://boards.straightdope.com/u/bomberswarm2)\ **Post date:** [April 11, 2016, 12:50am UTC](https://boards.straightdope.com/t/four-questions-about-a-judges-power-in-sentencing-in-court/751620/6 "2016-04-11T00:50:10Z")
For the first one, there are mandotory minimum sentances. No one would get less than 20 years for murder. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [April 11, 2016, 6:22pm UTC](https://boards.straightdope.com/t/four-questions-about-a-judges-power-in-sentencing-in-court/751620/7 "2016-04-11T18:22:59Z")
> [@Hari\_Seldon](#): > > In Canada, the sentence can be appealed by either side. So can the verdict. In one notorious case, a not guilty verdict was appealed and set aside. The appeal judge substituted a guilty verdict stating that a certain testimony should not have been allowed and without it the jury would have convicted. He was overruled and the case retried. A hung jury resulted. Then a second hung jury. Finally, the crown (that is prosecution), gave up. > > It will not surprise you that he was an abortion doctor. The evidence that was thrown out concerned medical necessity. And, IIRC, resulted in the law changing so that a jury acquittal could not be overruled. The crown gave up because the government changed, and a less catholic-establishment-oriented government, Rene Levesque’s pro-independence Parti Quebecois, took over. At the other extreme, a man in Saskatchewan put his 10-year-old daughter in his pickup truck, fed the exhaust into the cabin, and let it run until she was dead. > [@](#): > > Tracy Latimer was born November 23, 1980. An interruption in Tracy’s supply of oxygen during the birth caused cerebral palsy,[3] leading to severe mental and physical disabilities including violent seizures, which were controlled with seizure medication.[4][5] She had little or no voluntary control of her muscles, wore diapers, and could not walk or talk. Her doctors described the care given by her family as excellent.[6] > > The Supreme Court judgment of 1997 noted, “It is undisputed that Tracy was in constant pain.”[7][8] In her medical testimony Dr. Dzus, Tracy’s orthopaedic surgeon, noted “the biggest thing I remember from that visit is how painful Tracy was. Her mother was holding her right leg in a fixed, flexed position with her knee in the air and any time you tried to move that leg Tracy expressed pain and cried out”.[6] She also noted that despite having a hip that had been dislocated for many months Tracy could not take painkillers because she was on anti-seizure medication which, in combination with painkillers, could lead to renewed seizures, stomach bleeding, constipation, aspiration and aspiration pneumonia.[ The next round of treatment was going to be removing her upper arm bones because the muscle tension was causing severe pain. The crown prosecutor argued that he did it because he was tired of taking care of her. > [@](#): > > Mr. Latimer was charged with first-degree murder, convicted of second-degree murder by a jury, and sentenced to life imprisonment with no possibility of parole for 10 years. He subsequently lost an appeal to the Saskatchewan Court of Appeal. However, in February 1996, the Supreme Court of Canada agreed to hear a further appeal; and in June 1996, the original Crown prosecutor was charged with attempting to obstruct justice through jury tampering. In February 1997, the Supreme Court of Canada ordered a new trial for Mr. Latimer because of the allegations of jury tampering. > > After a new trial, Mr. Latimer was again found guilty of second-degree murder in late 1997. At the sentencing hearing, Mr. Latimer’s lawyer argued that he should be given a “constitutional exemption,” or that the judge should find the mandatory minimum sentence of 10 years to be “cruel and unusual punishment” in the circumstances, and therefore a violation of Mr. Latimer’s rights under the Canadian Charter of Rights and Freedoms. On 1 December 1997, in a decision that surprised most legal commentators, the sentencing judge found that a 10-year sentence would indeed be “grossly disproportionate” to the offence. He sentenced Mr. Latimer to two years less a day, half of which would be served in a provincial jail and half on his farm. In 2001, the Supreme Court of Canada ruled that Mr. Latimer’s crime could not be justified through the defence of necessity, and found that, despite the special circumstances of the case, the lengthy prison sentence given to Mr. Latimer was not cruel and unusual, and therefore not a breach of section 12 of the Canadian Charter of Rights and Freedoms. The Court also ruled that Mr. Latimer was not denied rights to jury nullification, as no such rights exist, and his prison sentence was thus upheld. So, an example where mandatory sentences possibly backfired. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 11, 2016, 9:21pm UTC](https://boards.straightdope.com/t/four-questions-about-a-judges-power-in-sentencing-in-court/751620/8 "2016-04-11T21:21:00Z")
> [@md2000](#): > > And, IIRC, resulted in the law changing so that a jury acquittal could not be overruled. No, jury acquittals can still be overturned by the Court of Appeal. The change in the law was that the Court of Appeal now cannot substitute a guilty verdict for a not-guilty verdict. If the Court of Appeal overturns a jury acquittal, it must remit it to the trial court for a re-trial.