Eugene Volokh posted an excerpt of an article about Vermont judge Edward Cashman as evidence that giving judges discretion in sentencing leads to "unjust" results.
The article in question:
"Wednesday [Vermont trial court Judge Edward Cashman] sentenced child rapist Mark Hulett to 60 days in jail. Hulett admitted he raped a little girl countless times when she was between 7 and 10 years old.Prosecutors said Hulett deserved at least 8 years in prison in part as punishment.
But Judge Cashman said the 60-day sentence guaranteed that Hulett would get into sex offender rehabilitation quickly or face a possible life sentence. He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can't get treatment until he's out of jail.
And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment. . . ."
I disagreed that this exemplified a shortcoming with allowing judges sentencing discretion:
"I don't see that the judge had anything to do with any manifest unfairness in the situation.'He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can't get treatment until he's out of jail.'
Talk about a sentencing guideline! Holding any rehabilitation hostage to punishment. If we want to talk about injustice, rules like these epitomize it. It's good that the judge had some discretion to attempt to mitigate it. If there are weaknesses with the outcome, it's because the judge didn't have enough."
Initial commenters have railed against the judge. (The article also mentioned that state Republicans were looking to recall him as a result.) I took issue with them too:
"Furthermore, this [sentence from the article]:'And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment. . . .'
is a spurious paraphrase. Before we rush to judge the judge, we should know *exactly* what he said and why. I would bet that it was an opinion along the lines that punishment for punishment's sake is an ineffective way of dealing with crime, an extremely reasonable opinion many others have articulated and one that he may likely have formed himself through all his years of judicial experience."
Yes, I think the punitive aspect of the sentence should have been stiffer. But I don't believe that rehabilitation should be subordinate to punishment, and since the judge appears to hold the same view, this seems to have been the best he could do with the sentence given the confines he was forced to contend with.
Edit. There are several good comments on the site (and a surprising number of unsophisticated ones), but this one comes up with some additional information that supports my gut feeling that the original article did not support the point that Volokh asserted it did.