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  • Writer's pictureMario Nicolais

The back-and-forth swing of judicial discretion

The pendulum of judicial discretion perpetually swings from apex to apex without ever stopping in the middle. Subject to the political whims of its two more political brethren, the judicial branch remains ever subject to changing forces acting upon it. With passage of SB 16-051, the Colorado Legislature has increased the momentum in favor of discretion.

A simple gravitational pendulum will lose momentum as it fights friction and gravity while climbing to an apex. Eventually those forces equalize the pendulum’s momentum, stop it at a crest, and then pull it back toward its natural resting position in the center. However, their force creates a new momentum in an opposite direction and the pendulum swings through its natural resting position on route to another crest on the opposite side. Each arc between the crests is imperceptibly shorter and, given time, the pendulum reduction ends with the pendulum at rest in a neutral position.

Unless an outside force acts upon it.

When it comes to judicial discretion, that outside force usually takes the form of public opinion. Some shocking incident or case draws the ire of the public. Public outcry registers with elected officials. Motivated by electoral consequences, elected officials run legislation. The legislation creates a new judicial environment. And while the problem is purportedly solved, the new environment incubates new problems and new outcries.

Since the early 1980s, reforms have focused on stripping discretion from judges. Inconsistencies among judges led to inconsistencies in sentences across courts and the county. The media highlighted seemingly identical factual scenarios with radically different outcomes. The disparate treatment led to a swell in support of sentencing guidelines.

Theoretically designed to promote equality across cases and fairness in judicial decisions, sentencing guidelines remove much of the discretionary freedom from judges. In its stead, a matrix of factors is compiled and a mechanical application instated. The outcome is a limited sentencing range in which the judge may exercise her remaining discretion.

Opponents argue that no matter how complex and broad, such systems cannot account for the infinite subtleties making every case different. Not only are the individual facts always at least subtly different, but so are the people, their pasts, and the circumstances that brought them before the court.

For roughly 20 years, the cinch around judicial discretion tightened. Legislators and regulators churned out voluminous laws in an attempt to capture distinct cases and categorize them. Because of the nature and length of criminal court cases, the long-term effects couldn’t be immediately measured. It took years, decades, to see trends and faults. But by the late 1990s incarceration rates and indefensible outcomes led to increased skepticism and additional venues for dissent. Had it not been interrupted by the law-and-order sentiment engendered by 9/11 and terrorist concerns, it is likely the restraints on judicial discretion would have peaked far sooner. Even that jolt only delayed the change.

Now laws across the country increasingly aim to restore judicial discretion. Under SB 16-051, defendants convicted for aggravated robbery, assault in the second degree or escape would be excepted from the mandatory consecutive sentences for separate crimes arising out of the same incident imposed on other violent crimes. Courts would consequently have the discretion to sentence such criminals either consecutively or concurrently. (Significantly, it appears possible that the words “consecutively” and “concurrently” have been transposed in the bill sent to the governor, fundamentally changing the substantive outcome of the legislation and contradicting the stated purpose of the bill.) While this bill is substantially watered down from its original stated goal — to remove required consecutive sentences in all cases — it is a small step toward greater judicial discretion. Consequently, it is a sign that the pendulum may be swinging in the other direction in the near future.

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