I fear I know the answer to this question, but let’s say that in our fictional state, mopery is a crime punishable by ten years in prison. Further, the way the mopery law is written, the prosecution has discretion to charge individual acts of mopery as separate crimes (think each punch in a bar fight as a separate battery–don’t fight the hypo).
You and I are charged in Fictional State with ten counts of mopery under similar circumstances. We have similar criminal histories, similar potential for rehabilitation, etc.
However, I am charged in County X with a judge who really doesn’t like the mopery law. I am convicted of all ten counts, but he runs my sentences concurrently, causing me to have to serve ten years in prison.
You are charged in County Y where the judge thinks that mopery is a horrible crime. You are convicted on all ten counts, and the judge runs the sentences consecutively and you must serve one hundred years in prison (effectively life without parole).
Has an equal protection argument been raised alleging that our treatment is arbitrary and capricious, without any rational basis, and that my good fortune and your bad fortune was just dumb luck?
Would it change the analysis if we were charged in the same county but were assigned different judges?
What your question is really asking is when judges have vast discretion, does someone who get hammered by a judge have an argument that the harsh sentence is unconstitutional.
Short answer, no. This is why most states and the federal government have put in place “guidelines” and other procedures to reduce the amount of discretion sentencing judges have.
Longer answer: perhaps. An argument might be possible that members of a suspect class were getting hammered more than other defendants. As a member of that class, you might get some traction. (i.e., black defendants getting death penalty more than white defendants)
I used to sit occasionally as a judge pro tem in a municipal court. I sentenced people convicted of misdemeanors, punishable by up to 365 days in jail. There were absolutely no limits on my discretion, and I could give one guy a slap on the wrist and the next guy a full year in custody. As long as the judge doesn’t exceed the maximum statutory sentence, the defendant is out of luck.
I get the counterarguments, I really do. But at the end of the day, is that justice? Is it fair that punishment hinges upon little more than the equivalent of a coin flip?
If you’re convicted of a crime, you better be prepared for any punishment up to the maximum (or the top of the guidelines at least). If you get less, consider yourself lucky. The fact that someone else might get less doesn’t make your sentence “unfair.”
Some judges have a reputation as being hard or light on certain crimes, and good lawyers try to make the best use of that information.
That said, it’s usually more a theoretical problem than an actual one. In practice, most judges in any jurisdiction treat things relatively similar. But as we saw in CA recently, one judge could give a six month sentence for rape and there’s not much that can be done about it. The people serving 10 years for the same crime might not like it. Those cases make the news partly because it happens so rarely.
But the hypothetical isn’t really an issue of “bias” that can be put aside, is it? If Judge A views a particular offense as more serious than Judge B does, how do you set aside “bias”? How do you even know which one is biased?
The law in my state is that if the sentence is within the permissible statutory range, and not given for any impermissible purpose (such as race, gender, etc), then the sentence is unreviewable by an appellate court.
Different for us in Canada. The Courts of Appeal will review sentences on appeal, even if they are within the statutory range, on the basis advanced by posters in this thread: even within the acceptable statutory range, similar accuseds should get similar sentences.
It is fair to say that the answer to that question is unknown, however, given the disparity it seems to me that one of them must be unjust: either to the public or to the convicted person.
Judges here on sentencing have an obligation to give reasons and to match their choice of a sentence against the ranges established by the Court of Appeal within the statutory ranges.
The Court of Appeal will give considerable deference to the sentencing judge, since they have not seen the witnesses, but reserve the powers to allow an appeal if the sentence is “demonstrably unfit.”
Both Crown and accused can appeal against sentence.
