Angelica Tom:
Well, thank you everyone for being here at the Catholic Information Center. We are delighted to present this program to you with our co-sponsor, the Center for the Constitution and Catholic Intellectual Tradition, which is part of the Catholic University School of Law. Mercy, Retribution and the Sentencing Judge will be discussed by Judge Richard J. Sullivan and Judge Stephanos Bibas, moderated by William Kamin, who’s of CIT as well as he’s a visiting professor right now at the Notre Dame Law School for the school year, but he remains also an associate professor at the Catholic University of America Columbus School. He joined in 2023. He teaches and writes in the areas of habeas corpus, federal courts, civil procedure and legal history. His scholarship on habeas corpus has been published or is forthcoming in the Stanford Law Review and the UC Davis Law Review.
At Catholic Law, he has received awards for both his teaching and his research. Prior to entering academia, Kamin served as a law clerk to Judge Richard Sullivan, this one, the US Court of Appeals in the Second Circuit and Judge Diarmuid F. O’Scannlain of the US Court Appeals for the Ninth Circuit. He was at JD from Yale Law School and a BA summa cum laude and Phi Beta Kappa from Amherst College. He’s not too shabby. He does represent the Center for the Constitution and the Catholic Intellectual Tradition, which promotes scholarship that explores the relevance of the Catholic intellectual tradition for American constitutionalism. Anyway. Thank you all for being here. At the conclusion of this event, please help yourself again to the coffee and to the donuts, but I’m going to step away and let Will take over. Thank you.
William M. M. Kamin:
Thank you, Angelica, and thank you Father Charles and everyone here at CIC for hosting us and thank you all for being here. So it’s great to have two judges who have thought really deeply about the issues of mercy, just retribution and criminal sentencing, which is what we’ll be chatting about today. US Attorney’s Office for the Southern District of New York where he overlapped for a couple years with Judge Sullivan. He then entered legal academia and taught at the law schools at Penn, Chicago and Iowa prior to being appointed to the bench. And he is also an ordained deacon in the Greek Orthodox Church.
Judge Richard Sullivan has been on the bench since 2007 when he was appointed to the US District Court for the Southern district in New York. Since 2018, he’s been on the Second Circuit. He’s a graduate of the College of William & Mary in Yale Law School. He also spent a little over a decade in the US Attorney’s Office prosecuting international narcotics trafficking organizations among others. He currently teaches at Yale Law School and Columbia Law School as well. So thank you to both of our panelists for being here. So I think we’ll start with Judge Bibas, sort of giving the affirmative for mercy… Well, I shouldn’t box anyone into a corner, but we’ll start with Judge Bibas and then hear from Judge Sullivan and then have some moderated Q&A for me and then we’ll open it up to you all.
Judge Stephanos Bibas:
All right, thank you for having us. Thank you for the kind introductions. It’s a particular pleasure to be here on a panel with my former boss and supervisor from the US Attorney’s Office. Always a little daunting. He’s a very formidable lawyer as well as a great guy and a serious Catholic, and I’m not sure I’m either, certainly not a… But I want to start with a little intellectual history just to kind of understand how far our conception of mercy and disdain from mercy are from where we started. And Orthodox Christians, we like history and we like going back in history. So in modern discourse, mercy is like a political football. It’s just kind of being a softy, lenient, criminal sentences, and we have the language of rights, not mercy. We have social programs rather than the Christian charity. We have general do-good or benevolence and we treat it all as a zero-sum game, but this is not where mercy starts and it’s not authentic to the roots of mercy.
Let’s rewind. 2500 years ago. Aristotle, always a good place to start. The word epieikeia is about tailoring justice to the needs of the particular case, and there’s not a priori rule of where that winds up, but there’s an understanding that we need justice and we need rules, but that has to be flexible enough to take into account the particularities of the individual’s situation. There’s a need for prudence and situation sense and how to apply that. When we get to Christianity, the Eastern Orthodox Church, which I belong to, our refrain in our liturgies is Kyrie eleison, Lord have mercy. Now, that is because all of us sin and fall short of the glory of God. We all need mercy, but it’s an understanding. It’s not a particular dispensation for one wrongdoer. It’s God’s active love for all of us. Incarnation, crucifixion, resurrection, conquering death, opening the way to eternal life.
So the father in the parable, The Prodigal Son. We’re all the Prodigal Sons. We all need God’s mercy and paternal love, and that doesn’t always mean getting rid of deserved punishment, but it means understanding that we might all deserve more, but there’s still some judgment in terms of how much we actually get. Something happens and as so often we Orthodox diagnose it is happening in the high Middle Ages. The Western intellectual tradition put justice on a collision course with mercy, and for us, we think if you go back to Anselm, who really develops the idea of substitutionary atonement, he understands Christ’s death on the cross of satisfaction demanded by God’s justice to atone for mankind’s sin.
But then there’s a further intellectual development in the Enlightenment where that’s not just a theological concept. It then gets imported into a secularized understanding of justice for crimes, collapsing the distinction between God’s punishment and man’s punishment. And then when you think about the Enlightenment thinkers who are stressing political equality and a much more philosophically systematic, a rule-bound equality, impartiality, universality, you get Grotius, get Hobbes, you get Locke, they speak of justice in terms of rights and then it doesn’t seem to leave room for mercy. It seems like a relic of absolute monarchy, just kind of throwing out candy to the people, but condescending to inferior smacking of arbitrariness, right? You get mercy in terms of it depends on whether it happens to be the day a new monarch is seated, then maybe you get mercy. But it’s just a sign of his power. No longer is care for the poor defined in terms of Christian mercy, it’s viewed as just justice for the poor.
And so oddly enough, by the time you get to the modern era, the 18th century. You have two main schools of thought about criminal punishment, but they both converge in the same place. So first there’s the Utilitarians, David Hume, Cesare di Beccaria, Jeremy Bentham. They want rules to deter crime, and so mercy is a deviation from rules. It’s unequal, it’s arbitrary. It sacrifices deterrence and incapacitation. Bentham doesn’t trust judicial discretion. He puts his faith in legislative convocation. By the way, he doesn’t like private charity. He thinks the government’s going to be better because the state knows better than encouraging indolence person to person. There’s none of the milk of human kindness in Jeremy Bentham.
Now, on the other side we have Immanuel Kant. Now he’s a Christian, but he’s a particular kind of Christian. He’s Bentham’s opposite in that he embraces retribution, but he embraces a very particular rule-bound kind of retribution, a categorical imperative. We must punish without pity. Kant’s stern, positive retributivism, not only we are authorized to punish, but we must punish up to the limit is driven not only by duty, but it’s also driven by the need to treat all persons equally and impartially, all right? So we get from the American colonies through the 18th century, their punishment approach is still fundamentally a Christian approach. A lot of the colonies were founded religiously, and they had an understanding, there but for the grace of God go I. and maybe someone took his lumps in the public square, but it was temporary and then there was forgiveness and reintegration.
Now, what happens in the 19th century when plea bargaining supplants trials and when the focus becomes on crime control in large anonymous cities is that you get this suspicion, a suspicion of individualized justice, suspicion of mercy. For a long time there’d been clemency by the king, later by governors and judges, et cetera. But we get to a rule-bound system with some punishments and increasingly through the 20th century, mandatory minimum punishments in some areas, and juries being told they have to where the discretion left in the system is often low visibility and hidden through plea bargaining in the hands of prosecutors without nearly as much of a check as you would’ve had in earlier times where there’s an interplay of the judge and the prosecutor and the jury.
Now, I’m not one here to say that I think softer is better. I think retribution is important and I think there’s a reason for that intuition we have, but I do think that when we conceive of justice exclusively in terms of rules, first of all we remove it from public view. Discretions like a balloon. You squeeze it in one place, it goes somewhere else. More of it winds up in the hands of low visibility, plea bargaining decisions. We have few jury trials and they’re not morality plays very often. And I think there is a value to having sets in guidelines. I think there is a value to having presumptive rules.
At the same time, those are ex ante values. You want some deterrence, but you also want some ex post flexibility. How much was the victim injured? How much has the offender, the wrongdoer apologized? How much is the wrongdoer showing a sign of turning over a new leaf? Maybe after five years in prison how much has the wrongdoer actually changed? This is part of a dynamic process historically, but I think that in an understandable reaction against arbitrariness and against maybe excessive leniency at some times we move towards something that at least nominally becomes a particular rule system.
The final thing I want to say is I don’t think this is exclusively the province of the judge, certainly not the individual sentencing judge. I think it’s a good thing to have appellate review. I think you want to have justifications that you can articulate, that can survive appellate review, et cetera. But I think sometimes, okay, there’s a heartland of cases and then there are cases that deserve something heavier or something lighter, and those can be articulated. I think there could be mercy by prosecutors though it’s a good thing to have some understanding of when some review, at least within prosecutors offices. I think there’s an admirable tradition of executive clemency up until about half a century ago. A lot of which got squeezed out when it suddenly became a political football, and I think it would be good to revive that maybe again, more review-based, et cetera, public discussion.
I’ve not sat in nearly as many sentencing as my friend Judge Sullivan has, but I have sat over some, and it’s a very powerful thing if you don’t just talk in terms of guidelines and points and numbers, if you talk to the person, the wrongdoer and the victim and the wrongdoer’s family in terms of how wrongful the act was, but also what signs of hope you have and what the prospects are for reform, and it’s a dialogue, a very cathartic dialogue for many people. Sometimes people will be insincere, sometimes that one moment won’t be followed up by change. But I think it’s an important thing for the wrongdoer and for the victim and the public to see that there’s real ongoing moral evaluation happening and that the system hasn’t squeezed it all out. So yes, we need justice. Yes, we need deterrence and capacitation. No judges can’t give away the store. But I think within those appropriate bounds, the considerations of mercy, including as tailored justice, as well as understanding the dynamic aspects of how wrongdoers and victims change are worth preserving in the criminal justice system.
William M. M. Kamin:
Thank you, Judge.
Judge Richard J. Sullivan:
I can clap for that. So my friend Judge Babis is a scholar. I was a trial lawyer and a trial judge, and so I’m not writing for scholars typically, I’m generally presenting to juries. So I’ve got pictures. So bear with me. I always worry that sometimes this might seem like showing vacation slides, but I do think it can be a helpful way to think about stuff. First of all, I want to thank the folks at Catholic Law School and here at the CIC. This is a great opportunity for us to come together and speak and to share ideas on important subjects, and so this is important. Now, I think a lot of people may have thought this was going to be a steel cage match between Babis and me on mercy, and that’s not quite right. Actually, this is a conversation among old friends and I mean, old friends begin with the Professor Kamin. Professor Kamin was my law clerk. In fact, he thought we had a policy in chambers of no facial hair. Do you remember that? He thought it was like the [inaudible 00:15:03].
But in any event, I can say generally my criteria for hiring clerks is I look for people smarter than me, which is probably hard for Judge Babis, but for me, that’s not such a litig, but in Professor Kamin’s case, I don’t know of a smarter, more thoughtful law clerk I’ve ever had, and I think he has brought that to the academy and then also as a wonderful teacher. So I’m delighted to be reunited with him today, even if it’s just for a day. With respect with Judge Babis, who was a professor too when he… He got tenure already, by the way. We go way back. I’m in the middle. I haven’t changed much probably, but Babis has changed a little. This is him before he stopped shaving, maybe before he started shaving, but that was quite a class.
I will tell you this was general crime. This is a group of people who are pretty new, and so I was a little less new, but I was the chief. But that class had a number of people who became judges, including Judge Babis on the Third Circuit; Cheryl Krauss, his colleague on the Third Circuit; Mike Scudder, a judge on the Seventh Circuit; Ronnie Abrams, a judge on the Southern District of New York in the trial court; Diane Gujarati, a judge on the Eastern District of New York, Brooklyn on the trial court, and then I was on both the trial court and now on the circuit. So it’s quite a showing of judges. So who knew it was such a judicial training ground?
But I will say Professor Babis, before he hit the bench, wrote very, I think, thoughtful articles and books on the subject of the criminal justice system. I think a lot of this talk today comes from an article he wrote a book review he did in First Things, reviewing a book that was talking about the decline of mercy in public life, and from that he has, I think, focused more specifically on the criminal justice system. This is a talk we’ve had before, it’s a conversation I expect we’ll continue to have, and as I said, I think this a healthy thing for us to do.
So one of the things Judge Babis talked about in his book was the fact that our criminal justice system today is sort of an amoral crime control machine, and I will say, I’m not sure I’m convinced of that. It does seem to me that it’s a very moral system actually. I think the judges are primarily focused on the moral culpability of a defendant. That’s among other things, but that is a very central focus. Just what is the moral culpability for this particular crime, this particular defendant, and that’s what judges do focus on. So I don’t think it is mechanistic. I also think there is a tendency to romanticize colonial justice.
I’m a bit of an expert on this subject because I went to the College of William & Mary, which is in Williamsburg, and so somebody has described Williamsburg as the thinking man’s Disney World, which I’m not sure if that’s a good thing or not, but every trip to Williamsburg, Colonial Williamsburg means a shop to the blacksmith to get yourself a horseshoe and a trip to the stocks to get a funny picture of you and the missus sitting there like you’ve just been punished for some misdemeanor or other.
In reality, I’m not sure that those were such petty minor things, and these were not just indignities. I mean, these were painful punishments for misdemeanors and they weren’t the only ones. I mean, there were other types of misdemeanors that looked kind of cruel in retrospect. And these are misdemeanors. I mean, the felonies tended to be met with a different kind of punishment and not a lot of room for reconciliation and healing in most of those. It was generally felonies were capital cases. And so I’m not sure that colonial times were the golden age of mercy. A short word.
Now I think we’re lawyers, we are judges, I think we need to define terms. That’s what we do. So what is mercy exactly? It’s not just kindness, it’s not just being nice. It is something else. So it’s certainly referenced a lot in Scripture. It shows up in philosophy as Judge Babis was discussing, poetry for sure, and another unlikely source, and this I’ve only learned recently because I’m from New York, is Country music. A lot of talk about mercy in Country music. But so what is mercy? It’s in the Bible, 300-plus times, and that’s the King James version. I’ll give a plug to the Catholic version. It’s about 290 times in the Old Testament and about 45 in the New Testament. But the most hit quote on mercy is Shakespeare. It’s from the Merchant of Venice, but none of these define it. None of these define the term.
And so if you’re looking to define what mercy is, I think a good place to start is the Catechism of the Catholic Church, which describes as the loving, kindness, compassion, or forbearance shown to one who offends. And I think forbearance is a key phrase. Textualists love dictionaries, and so that’s kind of what the dictionaries say as well. There is an element of compassion, but forbearance is there, and I think it’s important to remember the difference between compassion and mercy. Compassion means literally suffering with. Mary at the foot of the cross as Jesus is being crucified is showing compassion. Mercy is acting, motivated by compassion, but it’s acting to alleviate the suffering, and so that’s really what we should be focused on with mercy.
So I think the best example of mercy, or a good example of mercy is from Les Misérables. There’s the bishop, Bishop Myriel, who’s a very saintly guy, and Jean Valjean has been released from prison. He’s bitter about it. He’s wearing effectively scarlet leather that says he is a prisoner. No place will house him, no place will hire him. He is basically up against it, and the bishop sees him, welcomes him to his home, gives him a meal, brings out the fine china, which is the only thing he’s got left, gold plates, because he’s otherwise given everything to the poor. Very saintly guy. Says, “Stay the night,” and John Valjean rewards that by stealing it all in the middle of the night, leaving, and he gets stopped by the cops who say, “Where did you get all this gold stuff?” He says, “The bishop gave it to me.” So they go back to the bishop’s house and the cops skeptically say, “Did you give him this stuff?” And the bishop says, “Yeah, I did. And in your haste, you forgot the candlesticks. Take these too.”
That’s mercy. That is the bishop who had authority, who had the ability to say, “Yeah, that’s my stuff. And he stole it and I’m pressing charges.” He didn’t. He decided to forbear. Now, we’re talking about official mercy here. We’re not talking about personal mercy, and so the issue for us, I think, really is what is the role of mercy for the cops, for the police officers, for the judge, for the jailer? Do they have the authority to exercise mercy in their roles? Can they say, “You know what? I know you stole this stuff, but just promise not to do it again.”? Can the judge say, “Yeah, I know the sentence for this is equivalent of three strikes, you’re out.”?
John Valjean was looking at a life sentence because of this theft. Could the judge have just said, “Yeah, well, I’m not going to do it this time, just don’t do it again,” or could the jailer say, “Okay, I’ll leave it open and you can walk away.”? And that really is I think the focus of today. If you look to Blackstone, Blackstone is the dominant thinker in terms of law at the time of the framing and this declaration, he recognizes that mercy, which he equates with pardon, they’re really synonymous as far as he’s concerned, rests with the king. And in fact, Blackstone thinks this does not rest with judges. You don’t want judges messing with pardon because it will confuse everybody. People won’t know whether this person was found not guilty or innocent of an offense or just pardoned because the judge is wearing two hats, and so that was very definitely the view of Blackstone and it makes its way into our constitution.
So the pardon power is in Article II, and it is reserved for the President, and that is really the only… Mercy doesn’t show up in the Constitution, but pardon does. Now mercy does show up in the convention notes and it’s in a discussion of the pardon power, and what their debate in the convention is, we don’t think Congress should have this power, we think the executive, the President should have this power. No real discussion of judges having it. Hamilton in Federalist 74 is saying the same thing, this is a power of the President and it is to be exclusively reserved for him, not for judges.
I mean, let’s remember that judges get their authority from Congress, not the Supreme Court. The Constitution says the Supreme Court shall exist, but the lower courts, the inferior courts, that’s the ones we’re on, inferior courts, we are creatures of Congress, and Congress basically sets us up. They decide not only our existence, our jurisdiction, this by the way is James Duane, the first judge ever, a New Yorker because the capital was New York, and so judges derive existence, jurisdiction, and authority from Congress. And so ultimately then judges have to ask, “Where do I get this power? Is mercy one of the powers the authority granted to me by Congress?” And I think that’s a fair question.
We all took an oath. That’s me, that’s him. We took an oath to basically support and defend the Constitution, and that’s a oath. So help me God, that we will exercise the powers given to us and not basically take on to ourselves powers not given to us. And so that’s a pretty serious thing taking oaths, at least to some people. And so I think it’s worth remembering that in sentencing, this is not a metaphysical authority that comes with a robe. This is authority that is identified by Congress. It’s in a statute. We are told what we may and must consider in imposing a sentence and we must impose a sentence that is sufficient but not greater than necessary to comply with the purposes of sentencing. And these are the purposes of sentencing. They’re not that mysterious. But to reflect the seriousness of the offense, promote respect for the law, provide a just punishment for the offense. That’s a retributivist manifesto basically.
And then it also includes affording adequate deterrence for criminal conduct, to protect the public from further crimes of the defendant, that’s incapacitation. These are your utilitarian goals by and large. Provide the defendant with needed educational and vocational training. This is rehabilitation. These are the objectives of sentencing in the United States according to Congress, and judges have to apply, they have to basically fashion a sentence built on those things. They have to look to the nature and circumstances of the offense and the history and characteristics of the defendants. That’s where you’re looking. It’s got to be tailored to this person. I agree with Judge Bibas. It’s got to be tailored, but it is in light of the purposes of sentencing designed and articulated by Congress.
And then judges ought to have to consider what Congress has said. I mean, what’s the maximum sentence imposed by Congress? Sometimes it’s zero to 10, zero to 20, zero to five. Sometimes it’s 10. There’s a mandatory minimum sentence or a mandatory consecutive sentence, and judges have to consider those things. A judge can’t say, “Well, in a mandatory minimum according to Congress is 10, but I think five will do it.” I don’t think any judge would say you can do that. Judge also has to consider the need to avoid unwarranted disparities. This is something that judges are tasked with doing. This is not optional. This is a requirement to consider this. And then finally, judges have to think about victims, making sure that victims are wholer.
So these are things that judges have to do. Now, maybe in the area of compassionate release, this is post-sentencing, Congress has amended a statute that allows judges to take a second look, but even those are very constrained. They’re only in certain circumstances and judges still have to apply those purposes of sentencing, and mercy is not among them. And I don’t think it’s an accident, and I don’t think it’s really appropriate to tease out of that language a mercy component. I just don’t think it’s there. In the First Things book review, Judge Bibas basically as he did today, talks about these enlightenment notions that restrain judges, that limit discretion, that are I think he views rigid and mechanistic. We could quibble over that, but I would say remember that the Declaration and the Constitution and the Bill of Rights, these are enlightenment documents. Yeah, that’s what they are. They don’t purport to be anything different.
It seems to me they work pretty well. It seems to me that their preoccupation with authority is I think over the last 200 years has proven to be pretty wise, and I do think that at the end of the day, this system has worked better than the Papal States ever did, candidly, and certainly better than classical Athens did. And so I don’t think we should throw this out, we should recognize that this is really part of a debate, I think, on the one hand that Hadley Arkes… Do you guys all know Hadley Arkes? He’s spoken here before. He’s written a book about natural law, many books about natural law. Will used to work with him and studied under him. But he and Joel Alicea have had a debate really about whether or not judges get to exercise natural law, whether natural law is part of the jurisdiction and authority of federal judges, and it’s an interesting debate.
Alicea would say no, that basically an originalist concept of judging does not allow judges to do this, that natural law is not within the jurisdiction of federal judges. I think that’s a debate worth always considering. But the reality is today, this is a state courthouse in New York, this is the Law and Order courthouse if you watch Law and Order, law and order is like the Weather Channel, and is on 24/7. You can always catch an episode. But this is the courthouse there, and that’s the quote over it, and it’s from Washington. The true administration of justice is the firmest pillar of good government. And this is a focus on justice. And this ultimately I think is what judges are tasked with doing. It’s from a letter to Edmund Randolph. They’re both William & Mary alums, so go Tribe.
But I think the question then is, if not mercy, then what? And I don’t think Judge Babis and I disagree that much in practice ultimately. This is Avery Dulles, Cardinal Avery Dulles, and he wrote a piece on capital punishment that has stuck with me. It’s probably 25, 30 years old at this point. But he talks about the purposes of punishment and they really line up pretty closely with 3553(a) of Title 18. He talks about retribution, which is not vindictive. He made that point very clearly. Retribution is about the restoring the right order of things. It’s not to be vindictive or cruel. And he talks about the prospects of sentencing or engaging in the criminal justice process with love, and his view is that you can do that. In fact, you must do that. And I think he’s right about that. And I don’t think a judge, although not authorized to exercise mercy, can still exercise important qualities, although I think are similar to the ones that Judge Babis is talking about.
Respect. Have to treat a defendant always with respect. This is a human being. This is a person made in the image of God. With kindness. I mean, this is the worst day of this person’s life. If he needs a glass of water, be mindful of that. If he needs a tissue, be mindful of that. Love. To recognize that this person matters not just to their family, they matter in the grand scheme of things. And compassion, which is to suffer with this person. Humility. I was up at Yale last week and Judge Babis was in town that week and the poster showed he was going to be talking about humility in judging, and I think it’s important for judges to remember they don’t know everything. They can’t purport to know everything. They don’t impose a judgment the way God will, that you can’t possibly know your defendant that well.
So most judges, thoughtful judges, have the humility to know that they have imperfect information, they’re doing the best they can. And then ultimately prayer. I will tell you I don’t sentence much anymore, but when I impose sentences, I did so with a prayer. I prayed that I would have the wisdom to impose a just sentence. I prayed that I would have the words to articulate the reasons for that sentence, so it would be understandable to this defendant and to his family and to others who might be there just because they popped in. I prayed for strength for this defendant. This might be the worst day of his life. I prayed that he would’ve the strength to endure it and the strength for what was coming because what was coming was going to be hard, and the same for his family. And it prayed for hope and courage for the family members who will also be victims of this crime.
So at the end of the day, I think Judge Bibas and I are not that far apart, but I think it is important to recognize that mercy shouldn’t be misunderstood and misconstrued, and I think Judge Kamin I know is now going to lead us in a feisty debate and discussion, but it’s important to think about these things because whether you’re a judge or a prosecutor or a criminal defense lawyer, whether you’re not a lawyer at all, the criminal justice system is yours, it is ours. You may be a juror, you will be a citizen. And these are important issues that have to be considered by citizens and we’ll continue. So thanks.
Judge Stephanos Bibas:
All right. Judge Sullivan is characteristically thoughtful, articulate, witty. I certainly can’t keep up with his humor. I want to make a few observations. One of them is I think lawyers… Starting with dictionaries. I think it’s important that when he went to the Catechism of the Catholic Church and beyond, mercy is kindness or compassion or forbearance. Now, it’s certainly true that forbearance is the kind of mercy we typically think about, but I think that some of the things that Judge Sullivan was talking about at the end that he did whenever he sentenced someone are themselves a form of mercy, and let’s not forget that. Just because you pass by a beggar and decide you’re not going to give some money to the beggar, doesn’t mean you can’t show mercy by treating the person who’s a human, saying sorry, and maybe saying a prayer for the beggar. There are different kinds of mercy that we show in different situations and prudentially might be appropriate. So that’s the first thing. I think definitionally my historical service suggests we may have defined this too narrowly.
Secondly, I want to note that most criminal cases are tried in states. They are not bound by the federal statutes. Many states have broader, more flexible systems. But let’s assume we’re in the state system, all right? Judge Sullivan was a prosecutor, indeed my supervisor in the general crimes unit, and I recall that we would routinely entertain, even though someone could be charged with a felony and we thought we had the proof to convict them of the felony, we would routinely consider downgrading that felony to a misdemeanor or dropping or deferring prosecution entirely, and this was true of more serious crimes also where lawyers would come in and make a pitch and say, “Okay, you might have some issues proving it, but even if you could prove it, doesn’t this really deserve to be a civil matter or an administrative matter or couldn’t you take a plea to a misdemeanor?” And I never heard my friend Judge Sullivan object that that was improper. That was part of the role of prosecutors in what can fairly be understood to be mercy.
Now, Judge Sullivan points out that while we don’t see the word mercy in the statutes, but what do we see? Well, we see A7, referring to restitution to victims. There’s a kind of psychic restitution you can make to victims. You can apologize the victim, you get satisfaction. A2D makes reference to a kind of rehabilitation, that Catechism that Catholic Church does. I think we have focused too much on rehabilitation as, okay, some kind of treatment program and not enough as moral reform. Now, even if the federal statute doesn’t use those words, the Catechism of the Catholic Church understands it that way and many states do, and I think the ways in which someone learns his lesson may matter.
Now, Judge Sullivan admitted the First Step Act, the Second Chance Act, there are laws that allow reconsideration later where a sense of whether someone has turned over a new leaf, Congress is authorizing some of that, and that is a live debate in our political sphere. And it’s not just left versus right. Those on the right sometimes have embraced this. But let’s focus in on his core case. His core case is about judges at sentencing, what they do. When he rewinds to the colonial era, he tells a story that’s very bloody, and I am very clearly not defending all the particular punishments that were used, but I do think there is a myth that the colonies were bloodier and deadlier than they were.
First of all, in England there were far more executions and far more Catholic laws than in the States. Second, there was a riotous carnival atmosphere at executions in England, in the States, it was very sober with a lot of preachers and speeches about there but for the grace of God, but third, the actual executions were a lot less frequent than Judge Sullivan’s slide implied in my own Commonwealth. On average, there were only about two death sentences a year during the colonial era and half of those weren’t carried out. There was an average of only one execution in all the Pennsylvania throughout the colonial period. Now, one of the ways that happened, Judge Sullivan made a reference to Blackstone. Blackstone approvingly mentioned a practice called pious perjury.
Okay, so-and-so committed a theft. The theft was at least 40 shillings. Capital crime. But the jury would dig in. If this was someone’s first offense and it wasn’t a career criminal, they seemed genuinely penitent. Often rather than contesting guilty, throw himself on the mercy of the jury, and you know what? Very frequently the jury would downgrade it to a non-capital crime and very frequently the judge would recommend even if he were convicted of a capital crime, would recommend commuting the sentence and very frequently the king or later the governor would grant that commutation even to people who were poor and powerless.
So even in the judge and jury paradigm he’s looking at, there is a history here of individualized moral judgment that took into account remorse, that took into account the victim’s healing, that took into account a number of these things and the possibility of transformation. So at root, I don’t think Judge Sullivan and I are that far apart. I do think prosecutors, in my own experience, sometimes don’t seek hard enough punishments. I get why there is a need for maybe some rules and stiffening spines and a review to ensure justice, but I think justice and mercy can coexist and I think a vocabulary that suggests that mercy is some real deviation from our history of justice, both slights how we as Christians should understand it and slights how we should practice it as part of an ongoing moral dialogue.
William M. M. Kamin:
So first of all, thank you both for the… I mean, those are incredibly-
Judge Richard J. Sullivan:
Do I get surrebuttal?
William M. M. Kamin:
I was going to ask a question for both of you that I think sort of jumps off from here. So I think picking up with the theme, the lawyerly theme of focusing on the definitional, I would be curious to hear both of you say a little bit more about how you define mercy in relation to justice, right? I mean, so if we define justice as rendering unto each his or her moral deserts, I mean, I think there are some theologians and philosophers who would then define mercy as something sort of extrinsic to justice, above and beyond justice. Showing grace or forbearance or generosity unto someone beyond their deserts.
And so I think that in that sense, it is worth sort of nailing down when we talk about mercy, are we thinking about mercy in that way, as something that goes above and beyond and exists outside justice or is mercy something I think along the lines of how you were describing it earlier, Judge Babis, sort of intrinsic to the process of determining what someone deserves, to determining whether someone’s outside of that sort of heartland of cases where they deserve more or less stringent punishment than average?
Judge Richard J. Sullivan:
So I mean I do think that that is what most people’s concept of mercy is, which is that you are for no reason… You have not earned it, you don’t earn mercy. Mercy is about the bestower or not the bestowed, but I think that that generally is the sense, that by law, by just deserts you would get this, but we’re going to go low because the person who has the authority has decided to do so and doesn’t have to really explain. As Blackstone said, that’s up to the king and the king gets to do it how he wants. A judge, and I’m not really talking today about prosecutors and I’m not talking about juries. This presentation is called the Sentencing Judge, Mercy and the Sentencing Judge. And it seems to me these are the things that a judge has to consider.
That is a very full toolbox. There is a lot there that a judge can focus on and consider to determine what is an appropriate sentence, what is a just sentence, and a judge has to explain his or her reasons. It seems to me to say, yeah, to go back even further, to just basically talk about what is sufficient but not necessary. I mean, it’s not greater than necessary, right? It’s got to be sufficient to meet objectives. Seems to me mercy is saying this would be sufficient to meet all the objectives, but I’m going even lower because I’m going to exercise mercy, and I don’t think a federal judge has that authority and I don’t know that you would want a federal judge to have that authority. There are thousand sentencing judges in the United States and my expectation is that they would be applying that mercy in very, very different ways and notions of equality matter quite a great deal I think to the folks who frame this thing, and in my experience to defendants too.
I think that one of the goals of sentencing is to avoid unwanted sentencing disparities. And there used to be two judges in the Southern District of New York. One was Morris Lasker who was a rehabilitationist, and he believed that nobody should go to jail unless they needed to be incapacitated. The other was Edmund Palmieri for whom Ruth Bader Ginsburg clerked. He was [inaudible 00:42:20] and he thought everybody should have to go to prison because that we had to restore moral order, moral culpability, and he always gave high sentences and Lasker gave low sentences. There was something viewed as unjust that your sentence would be higher or lower depending what name came out of the wheel. I think 3553(a) is designed to make sure that judges are all applying the same objectives, using the same vocabulary, and then articulating the same reasons for their sentences. If the president wants to go off and do something different, he can, but I don’t think you want judges doing this because it is ultimately going to lead then to perhaps more disparity and a less just system.
Judge Stephanos Bibas:
I think those are fair points. I do want to note a couple of things. There are capital cases where the prosecutor seeks the death penalty, saying this is needed for justice to the victim. Now, sometimes the victim and the victim’s family have a religious or other scruple against the death penalty. In some of these cases, the defense lawyers tried to introduce those scruples and the prosecutors have successfully banned the jury from learning that this message about do it for memory of the victim, from learning that in fact this is not what the victim or the victim’s family needs or wants for healing, this is not for their memory. I think there ought to be something troubling about that. More generally, when we had a discussion about restitution, and I’ve talked about how certain concepts certainly in state courts of rehabilitation can include moral form, I think it’s relevant when sometimes the defendant…
I have a colleague, Paul Robbins, does empirical surveys of what people’s punishment intuitions are, and it’s very interesting. They are not these Kantian crime X deserves punishment Y no matter what intuitions. A majority of respondents say that if the wrongdoer apologizes and makes restitution, he deserves a lower sentence. Almost a majority of people think the victim’s forgiveness is relevant. These are things that can happen in the process. So if you ask how much punishment, how much is just punishment for the offense? You might have a dynamic understanding in which the amount of punishment that is sufficient, but no greater than necessary varies depending on whether there’s some reconciliation, there’s some both tangible and psychic restitution, there’s some reconciliation. Again, I think there needs to be some retribution. I do not think that victims just get to waive punishment entirely, but I have this unusual view that a crime is not just a wrong against the state, it is simultaneously a wrong against the victim. So there ought to be a hybrid right, and there’s probably a range of appropriate punishments.
Well, let’s say a victim is still very badly hurting and the defendant is continuing to blame the victim and calumniate her, et cetera, maybe a higher sentence is warranted, and conversely, maybe that same defendant comes along and says, “No, she wasn’t asking for it,” et cetera, et cetera. Maybe in the same case, the same sexual assault or whatever it is, by the time we get to sentencing, I think a judge might legitimately witness what has happened since the crime and say, “That crime now deserves a lower punishment.” I’m not saying go outside the range. I’m not saying go below the mandatory minimum, but I’m saying there’s a reason why judges have a range of appropriate punishment and at least punishment intuitions and the sentencing systems of most states allow judges to factor that into at least where they fall within the range.
William M. M. Kamin:
So before we open it up to audience Q&A, I have one more question for the two of you, which is a little further out from left field, so I hope you’ll indulge me. It seems that mercy is a faculty of will. There’s something sort of peculiarly human about it or perhaps divine about it in the first instance, but I wonder, it seems to me that at the root of the conversation you’ve been having, Judges, are themes that sort of echo with this kind of algorithmic age that we seem to be in the dawn of with the idea that we could have computers that possess an artificial intelligence, that can take not only mercy out of the equation, but sort of bias and all the other sort of foibles of the human will out of the equation in criminal sentencing. And so I wonder if either of you would have any reflections on what to make of that being on the horizon? Would it be better to have algorithmic sentencing or is there something distinctively important about having this human quality and having not only pure reason but will involved in criminal punishment?
Judge Stephanos Bibas:
I think it’s a great point. I think one of the things I really admire about Judge Sullivan is he means it when he said that bit about showing respect and understanding and forming a human connection. I think a robo-judge, yes, you could turn the sentencing guidelines into an algorithmic exercise, and I think one of the things that frustrates a lot of people is that it is possible to talk, especially if federal sentencing, in numerical terms that kind of eclipse the moral substrate. Now, I don’t think people always do that. I hope that good judges do, but judges can be busy and they can rattle things off, and I worry that the powerful… I mean, sentencing is supposed to be a powerful moral experience. Now, in federal court we have a lot of time to do this and it’s easier, I think it’s harder on overburdened state judges to make clear what is happening and that this is a human-to-human connection and evaluation.
I think what Judge Sullivan and I agree, I think what is troubling Judge Sullivan is not… Maybe I shouldn’t speak for him. Maybe it’s not so much that there is human moral evaluation, but the danger of its being idiosyncratic human moral evaluation. And we absolutely agree it shouldn’t be because the judge woke up cranky or had bad breakfast or got into an argument with his wife that he suddenly gives a heavier sentence, and so I’m not supposed to channel a subjective vengeance from my own heart, I’m supposed to channel the conscience of the community, what would we collectively understand to be the appropriate wrongfulness of this behavior? Now I think it can be helpful to think of that as a synthesis of justice and mercy conversing, and maybe it’s a terminological difference, but I do worry that the pressures are towards a certain kind of algorithmic justice, at least with judges, and then as I said, there’s going to be discretion somewhere in the system, but it’s going to be hidden and it’s going to lose that sense that there was a fraught moral event happening here in the morality play at sentencing.
Judge Richard J. Sullivan:
So look, I would say ultimately judging is about judgment, and I don’t think an algorithm can replace judgment. That’s not to, I think, minimize the potential for bias and for other things that will lead to suboptimal sentencing. There’s no question that there are real disparities and that in the eyes of many, the sentence you get is just turning on a random turn the wheel because different judges there said different credulations. I think the sentencing guidelines, we haven’t talked that much about those today, but the federal sentencing guidelines were effectively sort of a crude algorithmic attempt to take judgment out of sentencing. Judges didn’t like it for sure, but I don’t think it was an optimal system. And so I think that the key is, I guess, I think to have judges articulating their reasons, having those reasons then be tested and evaluated by appellate courts, but make sure that there is also some consistency.
One of the objectives of sentencing is to avoid disparities, not to just have sort of random windfalls to some and the lack of windfalls to others. And I think that is something that we should be very concerned about. So I don’t think a machine is going to do this even though it may not be much worse at the end of the day, but I do think the solemnity of a sentencing is palpable. If you haven’t been to one, you should go to a federal court particularly because I think most of my colleagues that I’ve seen really pay great attention to these. They allot a lot of time, they listen to a defendant, speak to the lawyers, speak to family members, speak to victims speak. They’ll sometimes take a break before imposing sentence so they can reflect on what they’ve heard. It is not a mechanistic system. I think it is far from it. It is a very bespoke system and that’s its strength. I think what we want to do is make sure that we are applying it as consistently as we can, but I wouldn’t say an algorithm will do that.
Judge Stephanos Bibas:
Let me just underscore one other point of agreement that I don’t think has been foregrounded here. People ask me what does it mean to be a Christian in a justice system? And I think one of the things I stress is it doesn’t mean that I try to certainly consciously warp the results I reach, but I do try to stress to young lawyers that the way we do what we do matters as much or more than the result we reach. I think my oath forbids me to just inject my own predilections about punishment, but I think the things that Judge Sullivan put up on a slide are hugely important. Treating people with respect, talking to them, trying to communicate with them.
These are things that our system, again, especially at the overburdened, lower state levels, often fail at. I think we have a luxury in federal courts that our dockets are so much lighter. But I think letting people know that they’ve been heard, that we took them seriously, that on the other hand they have to think about how bad this crime was and how much this person was hurt. That kind of communication is itself an important part of treating people with Christian dignity in the Imago Dei.
William M. M. Kamin:
Beautiful. I think we’ve got time for a question or two from the audience.
Angelica Tom:
Well, I’m going to start off with a question that came on on why, and this is in reference to Judge Sullivan’s comment about Hadley Arkes versus Joel Alicea, that debate there. And the question is, isn’t all good law a subset of natural law?
Judge Richard J. Sullivan:
Well, that may be true. I think one can believe in natural law and agree with Hadley Arkes in his views of it, but still say that a judge does not have the jurisdiction to be striking down acts of Congress or constitutional provisions because they’re inconsistent with natural law. That’s really, I think, the issue. And I think most judges would, I think, recognize very quickly that they don’t get to do that even though they might think that this is a violation of natural law. Thoughts on that?
Angelica Tom:
Raise your hand and Carol will walk to you with a microphone.
Audience:
Can you hear me? Yeah. Okay. Was I the only one with a question? I think my question is primarily for Judge Sullivan because I’m literally persuaded by Judge Babis. [inaudible 00:55:15].
Judge Richard J. Sullivan:
Well, there’s always one.
Audience:
But I wonder if the distance between the both of you is actually even smaller than Judge Bibas thinks it is. So Judge Sullivan, just to make sure I understand your position correctly, is the thought… So I feel like mercy is perfectly compatible with justice and to my understanding, you think so it might be too, but the worry is that it could sometimes cut against justice and then the penal system in particular, you may not want that. And so just to give a thought experiment where I’d love your thoughts on this, if you have, let’s say, a murderer and you could do one of two things, you could sentence them to death or you could sentence them to solitary confinement, you might think that solitary confinement is the more merciful option. Let’s just say that it is. I know that would be contested, and-
Judge Richard J. Sullivan:
Why couldn’t it just be the more just option?
Audience:
Right. In this case… Well, okay, maybe that’s your response, but I’m thinking that in both cases it hits all these marks on board, it hits A through D, it hits all of them. It’s reflective of the crime that the murderer committed. In both cases it will serve as deterrence, et cetera, et cetera. And again, this goes for both punishments. It seems to me that there’s nothing wrong with going, “Yeah, but solitary confinement is the more merciful one.” So it’s like we’ll weight both our options, they’re both weighed equally, why not go with the more merciful option at the end of the day?
Judge Richard J. Sullivan:
By more merciful, you just mean more lenient?
Audience:
I don’t know. And I think this gets to the question that was kind of driving this whole conversation of what is mercy? I mean, when I hear have mercy, it does sound a little bit like go easy. I think when we say the Q&A for example, and we’re asking God for mercy, I think it is an acknowledgment of go easy. But I don’t know. I’m just wondering your thoughts. Where am I going wrong here, is primarily-
Judge Richard J. Sullivan:
I mean, I’ll give you a very simple example. There are certain crimes that Congress has decided that require a mandatory sentence. And so five kilos of Coke, if you’re trafficking five kilos of Coke, that is a 10-year mandatory minimum sentence. If that is the crime of conviction, the judge has no choice, assuming there’s no safety valve, but there’s a couple of exceptions that have been created, but assuming they don’t apply, the judge has no choice but to apply a 10-year mandatory sentence that. Those are relatively easy ones in a sense that you don’t have any math to do, and that the outcome is pretty much a foregone conclusion going in.
One of my colleagues was once quite unhappy that the government insisted on proceeding with that charge. The defendant pled to it, and the judge said, “No, I’m only sentencing them to five.” That I think was an act of mercy. It was also appealed and overturned in about 30 seconds. I mean, it was a very easy appeal because the judge didn’t have the authority to do that. So I don’t think Judge Babis, I mean, even in the sense that… I just mean that you wouldn’t say a judge could do that, right?
Judge Stephanos Bibas:
No, but let me note that the prosecutor is pretty free to bring that charge or not bring that charge, and I think we should be mindful of is that a wise system, we may work within it, but is it wise for prosecutors to have very little constraint on whether they bring such charges or not, and then to say that if they choose to bring it, then the judge must apply it or not? Look, I’m sworn to uphold the laws Congress passes. It doesn’t mean we can’t critique whether that is the right distribution of power.
Audience:
Thank you both. This question is for the both of you. Something you mentioned, Judge Babis, your introduction was that this distinction… That the West in general has been very distinction happy, but if we really think that particularly from an Eastern Christian perspective, I’m Eastern Catholic myself, these are what Aquinas might call virtual distinctions between justice and mercy. So my question for you both is are we really talking about different things when we in the Western tradition, put justice and mercy as if they were opposed to one another, and if this is in fact a virtual distinction, not necessarily a real distinction, what can we do, whether it is in terms of sentencing reform or just as judges to really bring those closer together, just synonymize mercy and justice rather than bringing them into conflict?
Judge Stephanos Bibas:
I think rhetoric matters, and I think that our rhetoric suggests a certain Kantian approach, and again, Kant counted himself a Christian, but he is a particular kind of Christian that I’m not sure his approach is simpatico with what I understand about the ancient Christian tradition, and I worry that it distracts from the idea that this is all things considered kind of prudential judgment about how much punishment is just in these circumstances and the need for the kind of tailoring and the need for kind of understanding of the defendant and the victim that doesn’t collapse into just emoting all over the place, but involves a reasoned evaluation as well as will.
Judge Richard J. Sullivan:
Look, I think my response would be that there’s a lot of room for discretion that judges are given. I think to just say mercy is equivalent of leniency or is the equivalent of finding less culpability in certain circumstances is to render the word sort of meaningless, and I think the fact that it does not appear in a statute, it does not appear any place else, I think judges should be reluctant to try to formalize the use of something that isn’t there. I think there’s ample room here to come up with a sentence that the judge thinks is just, and so I think judges are kind of all over the place. I mean, if you see the regional disparities and the disparities within courts, different judges on the same court, that they are significant.
I don’t think it’s because some of them were merciful than others. I think that they’re weighing these different factors differently. Some are primarily focused on rehabilitationist goals or other utilitarian goals, and some are focused on purely the moral culpability of people. In some cases, if you say you’re sorry, you do a lot better than if you don’t say you’re sorry. If you go to trial and don’t say you’re sorry, you’re going to do a lot more time than if you plead guilty and say you’re sorry even if you don’t mean it, but I think somebody’s got to have this discretion, and I think you want judges to have it because they at least have to state their reasons.
William M. M. Kamin:
I think we’re-
Judge Richard J. Sullivan:
Oh, one more.
William M. M. Kamin:
Maybe we’ve got time for one more. Yeah, how about you, Matt? Or here, Carol.
Audience:
Thank you. So I think you’re both so close to each other to tell you the truth, and I think that that 3553(a), the sufficient, but not more than necessary actually is a way of writing mercy into it, and also we’re all obliged to natural law, whether we like it or not. I know the modern rewriting of what it is and all, but natural law will get us one way or another. My concern is about the unjust. I know it’s only indirect, but actually it comes out on you, the unjust prosecutor who is driven by ambition and all kinds of things, and who hides mitigating evidence from the other side that if the attorney or the guy knew about it doesn’t come in front of you because he’s withheld it and maybe the attorney doesn’t even know it exists at all.
So it’s written into the system that you’re not going to really see in front of you, and it seems that stuff that actually changes the picture. And there must be a way that the sentencing judge… I’m not sure if by sentencing judge, it means that you haven’t seen the rest of the case at all, but it seems that that needs to be always searched for by the sentencing judge because hidden evidence that would mitigate the whole thing is key to all these other things. Your comments.
Judge Stephanos Bibas:
So in the federal system, not only… In all the systems, the prosecutor has an affirmative obligation to turn over evidence that would mitigate the punishment or could tend to mitigate the punishment, but also in the federal system, the probation office does its own investigation. Now, what’s interesting about it is… I’ve not heard about these cases happening. Of course, they might just stay submerged, but often there might be a danger the other direction, which is if the case doesn’t go to trial, the judge doesn’t learn about all the aggravating evidence, whereas if the case does go to trial, the judge learns a lot more about the case.
So is that the judge is being unduly harsh in the 5% of cases go to trial, or is the judge potentially being unduly lenient? Is the judge in fact calibrating the discount to the level of remorse or apology or forgiveness, or is it just an automatic plea bargaining chip? I think there are some difficult issues here. Of course, by the nature of your hypo, it’s impossible to know how often it happens, but I don’t have an anecdotal sense that that is happening all that often.
Judge Richard J. Sullivan:
Yeah, that’s my sense, and I think the key is… I use the quote from Washington, the true administration of justice is the firmest pillar of good government. I think that turns on judges who take their oath seriously, who take the law seriously. I think it also turns on prosecutors who take their oaths seriously, and defense lawyers who take their oaths seriously. It means funding defense lawyers so that they can provide meaningful representation to their clients. I think in the federal system, it is quite good. The quality of federal defenders is very, very good, at least in New York. The quality of the Criminal Justice Act panel, private lawyers who are appointed by the court to represent indigent defendants, which is over 85 or 90%, I think, is quite good, and I think as a judge, you only have the information that you have, but I think the expectation is that a defense lawyer will rally whatever information is relevant to sentencing, that a defense… You’re shaking your head. You don’t think that that’s true?
Audience:
I guess from personal experience with lawyers, I realize that some of them, it seems to me many, come into the mitigating evidence quite accidentally afterwards.
Judge Richard J. Sullivan:
Well, I mean it will be available afterwards. I mean, if it is available afterwards and there might be other relief, and that’s an area of expertise for Professor Kamin. He does a lot in connection with habeas. But out of sentencing proceeding, I mean, there will be submissions, and in my experience, certainly the defense generally puts much more into this than the government does. The defense is really working very hard to present a portrait of their client that shows his humanity, shows that this is a person who is much more complicated than the one criminal act, that they’re much more than that worst act that they ever committed, and I think they do a pretty good job of it. I think the government tends to just basically stick to the facts as they existed at the time of the guilty plea because they’ve moved on to the next thing.
And so I think that’s partly the reason why the majority of sentences in the federal system are below the sentencing guidelines because I think the defense has taken it very, very seriously to make sure that they are, I think, showing the judge the humanity of this person, which is their obligation. They have an obligation to do that.
William M. M. Kamin:
Thank you both. Thank you all.
Judge Richard J. Sullivan:
Thanks.
William M. M. Kamin:
Thanks to CIC.