Last week I read one of the most shocking posts of my life. Eugene Volokh, a critical thinker if there ever was one, a person who frequently and poignantly notes the thinking errors people make when discussing issues like free speech, gun control, and sexual assault, wrote something that would earn a Logic 101 student an embarrassing grade. In a post entitled "Why People Are Skeptical of Judicial Discretion in Sentencing," Volokh does the following:
1. Demonstrates that one judge has gone off of his sentencing rocker, and
2. Argues that all judges should have their sentencing discretion cabined.
Since when did careful thinkers like Volokh start crafting global principles (here, that all judges should have their hands tied) based on a single anecdote (here, that a judge has violated his oath to apply to law)? Volokh does not look at sentencing schemes as a whole, asking whether in light of thousands of appropriate sentences, we as a society should tolerate a few wrong-headed ones. Nor does he examine whether sentencing "guidelines" would lead to a more just or unjust system. Instead, he merely says: This judge is nuts, therefore all judges should be shackled.
In his book on legal writing, Volokh devotes a lot of space to critical thinking. One way to think critically about our arguments, he notes, is to develop "test suites." We should use a test suite to apply our arguments to other contexts. This helps us recognize whether our principles are sound.
Let us apply Volokh's principle (because one judge abuses his discretion, no judge should have discretion) to a couple of other contexts.
1. In a post about a school shooting, we would entitled a post: "Why People Are Skeptical of Private Firearm Ownership." We would then note that several children died because a lunatic shot them. We would then argue that no one should be allowed to own a gun. We would not look at firearm ownership as a whole, or try to determine whether the costs of firearm ownership (a few tragedies) outweigh their benefits (using firearms to avert more tragedies). If someone wrote such a post, Volokh would tear it to shreds. Yet Volokh applies similar reasoning in the sentencing context.
2. [Ed's note: Someone made this point in Volokh's original post.] In a post about an airplane crash, we would entitle a post: "Why People Are Afraid of Flying." Would anyone take such a post seriously?
Yet Volokh's sentencing post is no different from those two posts noted above. Which illustrates one of the major problems of sentencing: If careful thinkers like Volokh become emotional and refuse to critically analyze important sentencing issues, what can we expect from the loose thinkers? Given that loose thinkers always have (and always will) outnumber careful thinkers, Volokh's post scares me.
When fixing sentences, we as a society are not doing something abstract. A government regulation that prevents us from, say, speeding, is much different from government action that throws someone into prison. Should we, willy-nilly, throw people into prison, or subject judges to sentencing guidelines? Or should we carefully weigh and balance all the options? I hope that the next time Volokh blogs about a sentencing issue, he will take the latter approach.