Although the hearing depicted in this essay is based primarily on one case, Marco is an invented name, and the people and situation described are a composite of several individuals and sentencings.
— Ed.
A young man stands at the lectern: nineteen years old, athletic, thick black hair down to his shoulders. I’ll call him Marco. Today my job is to decide whether to send him to prison.
His mother leans forward on a bench two rows back, as close as she is allowed to get in the courtroom. Marco twists around to say something to her, words that can only be I love you. The deputy posted along the wall jerks his head to tell Marco to face forward. He reluctantly obeys, and his court-appointed lawyer places a hand against his back as if to steady him.
Then the lawyer looks at me, his slumped shoulders and weary eyes saying, I’ve done everything I can, Judge. Do what you must. The courtroom is quiet. Even those here for other cases stop whispering and fidgeting. For me, however, the moment is routine. On any given criminal-docket day I might face such a choice a dozen times or more.
I glance at the clock, annoyed with myself. Two months ago I read about a study of parole judges in Israel: as they grew hungrier throughout the morning, their approval rate dropped steadily until, just before lunch, it fell to near zero. Seeing myself in this account, I vowed never again to hold sentencings after 11 AM. Yet here I am, just before noon, and there are still two more cases on the morning docket. I am tired, hungry, and overcaffeinated. An impending headache squeezes my skull.
I could take a break, eat an energy bar, and consider my options. But to really think, I would have to declare a recess and retreat to my chambers, which would disrupt the schedules of the people who keep my courtroom running: the deputies who transport the prisoners, the overworked court reporter, the lawyers. Also I have a role to play and want to play it well. A good sentencing should have an air of certainty, of inevitability. A judge should hand down sentences the way a Greek god sends down thunderbolts: quickly, unequivocally.
I open my mouth to speak, even though I don’t yet know what I’ll say.
People often ask me if I like my work. I always reply that being a judge is great: Unlike lawyers, we don’t have to find new business, keep track of billable hours, make a profit, or please clients. We’re well paid, and lawyers laugh at our jokes. And in Colorado, where I live, judges are appointed by the governor rather than elected, and so I never need to campaign. It’s a job specifically designed to encourage you to do the right thing.
To me, the “right thing” meant selecting the proper rule, objectively determining the facts, and then applying that rule to those facts without emotion or consideration of the identity of the person before me. It’s a vision of the judge that stretches back at least to Moses’s instruction to the judges of Israel that they “shall recognize no face in judgment.” I’ve embraced this ideal, even placing a bronze statuette of the blindfolded Lady Justice on the windowsill in my chambers, believing that if I work with enough integrity and intelligence, I might come close to attaining it.
Much of the time, as I sort through complex motions and preside over jury trials, my confidence seems justified. As difficult, frustrating, and stressful as my job is, it has a clarity of purpose. It suits me. Sentencing, however, is the exception. There I often feel at sea. I struggle. I doubt myself. On the night before a docket packed with sentencings, I wake early and find myself dreading the hard cases — the ones like Marco’s.
Looking for help, I read a stack of books with titles like Principled Sentencing: Readings on Theory and Policy or Oxford’s A Reader on Punishment. These tomes, which contain not a single line about the emotions of the sentencing judge, reinforce my belief that sentencing can become manageable, even intellectually satisfying. Besides, I tell myself, sentencing should be the easiest part of my job. For a trial judge, failure means reversal by a higher court, and almost any decision a judge makes, even a seemingly trivial one, might be subject to pages of legal analysis from the court of appeals. But sentences do not receive such scrutiny. A judge is often free to choose, as I am in Marco’s case, anything from a stint on probation to a term in prison, without fear of reversal. Of the hundreds of sentences I’ve imposed, just one was not affirmed, and that was only because of an ambiguity in the relevant statute.
Yet I continue to ponder difficult sentencing decisions long after I’ve made them, wondering: Did I do the right thing?
This is the fourth time — the fourth time! — I have had to sentence Marco. His initial crime was not terribly serious: breaking into a dozen or so cars one night and stealing stereos, laptops, and whatever else he thought he could fence. He probably netted a couple of hundred dollars at most. By itself, each incident would only have counted as a misdemeanor. But when the prosecutor added all of the victims’ losses together, as the law permits, she was able to charge him with felony theft, a crime with a possible prison sentence of one to three years.
Since it was his first offense, she offered Marco a deferred sentence: if he pleaded guilty, completed drug treatment and forty hours of community service, made a reasonable attempt to pay for the losses he’d caused, and stayed out of trouble for two years, then he could withdraw his guilty plea and start his adult life with a clean record.
I was relieved to approve this deal. Like the overwhelming majority of my colleagues on the bench, I am white, and like a disproportionate number of the defendants who appear before me, Marco is Latinx. These facts matter. I have seen for myself how police officers, prosecutors, and judges give young white people second — and third and fourth — chances out of concern that a conviction might harm their future. They often fail to treat young people of color the same way.
Two months later, though, Marco got in a car accident and was charged with reckless driving. I revoked the deferred sentence, as I was required to, made the felony conviction permanent, and resentenced him to probation. As I pronounced the sentence, I tried to strike the right blend of cautious optimism and sternness.
Then, four months later, Marco lost his job at a meatpacking plant and picked up a drug-possession charge. I resentenced him to two years in what Colorado calls “community corrections”: a tightly controlled facility where the residents sleep eight to a room in bunks but may leave for work, treatment, and church during the day. I agreed with the prosecutor that this option would give him the so-called structure he needed. Two years, I figured, would be enough time for him to finish his treatment, get work experience, and maybe even complete his GED.
Three months later he was caught with drugs. He told the staff he was holding the package as a favor for a man who’d spent decades shuttling among jails, halfway houses, and prisons. He was probably telling the truth. But here he is, standing before me once again.
My choice is stark: probation, perhaps with several months in the county jail, or up to three years in state prison. At first my mind leans toward prison. Generally if you’re kicked out of community corrections, you go to prison. It’s a step so routine that some judges don’t even hold another hearing. And I see their point. I already know the basic facts of Marco’s life. And I have seen him in the courtroom about nine times over the past year, in various states of mental and physical health. Why am I putting myself, the lawyers, the victims, and Marco through this drama yet again?
First up is one of Marco’s victims. She has appeared every time, and is still furious, both at Marco for the injury he caused her and at me for the way I’ve handled — or, in her eyes, mishandled — his case. She demands immediate punishment, and, since we’ve dismantled the stocks, the answer is obvious: the maximum three years in prison. That’s what he should have gotten in the first place, she says. And it’s only fair, because the laptop Marco stole contained the sole copy of a memoir she had been working on for at least that long. Three years of his life for three years of hers. “Do your job, Judge!” she says.
Even as my face reddens, I let her vent. One purpose of a sentencing hearing is to offer an outlet for righteous anger. And her argument rests squarely on an important goal of sentencing: retribution. I resist the impulse to defend my earlier decisions, then thank her and gesture for Marco’s mother to come forward.
As she does, the defense lawyer places a box of tissues on the lectern. Marco’s mother pulls out a handful, dries her eyes, and gathers herself. Marco is a decent boy, she begins. Even though he lost his father when he was only ten years old, he did well in school, played saxophone and basketball. And then he tore up his knee, and the doctor prescribed . . . She stops herself and waves her hand, pressing a tissue against her eyes. She knows I’ve heard all this before. Today what she wants to say is that, despite everything, Marco is still a decent boy. He’s sorry for all the problems he’s caused and is ready to do better. “If you grant him probation, Judge,” she promises, “he will live in my house, and I will make sure he follows all of the rules. And if he doesn’t, I swear to God, I will call the probation officer myself!”
Her words make me think of my own son, and I feel a parent’s fear at how quickly things can go wrong. But what else can you expect a mother to say? Her request, like the victim’s, demonstrates another goal of sentencing: rehabilitation — to help Marco become a law-abiding member of the community. After all, this was the intent of my first three sentences, and she is only asking me to try one more time. I thank her with slightly exaggerated courtesy and turn to the lawyers.
First, the prosecutor. Dressed in a crisp navy blue suit, she is well armed with familiar arguments and stock phrases. The court has been “more than generous” and given this young man “every opportunity” to put his crimes behind him. She shakes her head at this folly. But now the time has come, she says, looking me in the eye. The court must order that Marco spend the rest of his two-year sentence in prison. As harsh as it may seem given his age and lack of priors, Marco has “more than earned it.” Besides, the court has no choice if it is to “maintain its integrity.” And letting that last word ring, she returns to her table, sits, and looks at her phone.
Her argument is clear, reasonable. Marco has had his chances. The time for retribution has come. “The court” — meaning I — must crank up the pain another notch and send him off.
When the defense lawyer comes to the lectern, he shuffles his papers and says he will be as brief as possible. I settle in for a lengthy argument. After reciting the history of the case “for the record,” he requests — in a mumbling, apologetic way — that I grant Marco another shot at probation. He acknowledges how unusual this would be, but in Marco’s case, he insists, it is warranted. Working with him the last few months, the lawyer has seen him grow up. Marco understands what’s at stake and what he must do. He wants an opportunity to find employment and repay the losses he caused. Marco’s mother nods vigorously, leaning forward as if to remind me of her promise to keep Marco in line.
The lawyer clears his throat: However, he says, if the court does not find probation appropriate, then perhaps, given his client’s youth, it might consider reducing the sentence from two years to one “in what could only be called a measure of mercy that, in all honesty, Your Honor, this young man has not necessarily shown he deserves.” He pauses to gauge my reaction, then adds, “Or perhaps eighteen months?”
I look away like a cop ignoring the folded twenty in a speeder’s palm. I want the sentence to be rational, unemotional, impersonal. Mercy should have nothing to do with it.
The prosecutor eagerly jumps up. “Judge,” she says, “if you grant probation again or shorten the sentence, you will be rewarding this young man for thumbing his nose at the law. It would set a terrible precedent and be an insult to the court and the victims.” She shakes her head in disgust. “If anything,” she adds, “the court should increase the term and impose the full three-year sentence allowed by law.” Even as I bristle at her presuming to tell me what to do, I note that by suggesting a three-year sentence she has made her original request for two years seem moderate.
I straighten in my chair and look at my notes. I’ve made my decision, but before I can deliver it, the defense lawyer stands to tell me his client wishes to address the court. In my impatience I have forgotten about Marco’s right to speak. I gesture for Marco to come forward.
Marco shuffles to the lectern, shackles rattling. “Your Honor,” he begins, but his voice catches. He probably has not said much these last few months, keeping his head down in the halfway house and jail. He clears his throat and starts again, struggling. “I don’t want to waste your time, and I know everybody here is wanting to get to their lunch. Like I said before, I know I messed up. And I know where I’m going. It’s a place I’ve been hearing about since I was a little kid, and I always kind of thought I would end up there someday. All my life, guys have been talking about it, telling their stories about gangs, guards, weapons, drugs, fights, and other stuff. I know some of that’s just stories, guys talking. But I’ve tried to prepare myself, not just physically but mentally, too. Be ready to stand up for myself. To fight the way they say you have to.” He cocks his chin and presses his lips tight, then glances down. “I won’t lie,” he says. “I’m scared. Scared for real.”
Marco, unlike the lawyers and the victim and his mother, has not asked for anything, only told me about himself. He has asked for nothing except this: that I see him not as a defendant — a prisoner, a felon — but as a person, equal to me in value, autonomy, and complexity, demanding my full emotional attention.
Marco screwed everything up. I no longer knew what I was going to say. It is only now, years later, that I can put it into words: To decide whether to sentence Marco to probation or prison, I believed I must apply logical rules to objective facts. But instead of rules and facts, I found only emotions — the very emotions I believed a good judge must set aside.
At the time I could not indulge in philosophical leisure, examine my assumptions, and pick apart my conundrum. Instead I had to power through my docket, sometimes making decisions I could not fully explain nor defend. No wonder I found sentencing so difficult. No wonder I couldn’t sleep on nights before hearings like Marco’s. No wonder these cases have continued to bother me. The work I thought I was doing didn’t match the work before me.
A sentence is necessarily a decision about the future. It involves speculation, desires, fears, and values. And, as Marco’s statement so forcefully reminded me, it always concerns a person. Sentencing judges need to consider the most intimate details of the lives of those before them, and how the sentences they impose on their lives will affect them. It can never be totally objective.
If I decided to deter Marco and perhaps others by sending him to prison, I would still have had to determine what constituted the right amount of punishment. How? The only honest answer is that I picked a length of time that felt right to me, given what I thought I knew — which would always be subjective and often wrong — about the reason for his actions, the harm he had caused, and his character.
There is no rule. I tried to be consistent and use whatever evidence I had to avoid a sentence that was useless or did more harm than good. But in the end, I chose the goal that felt right in that case.
I sentenced Marco to two years of probation, with the conditions that he complete drug and alcohol treatment, finish his GED, either find a job or continue his education, and make reasonable payments to the victims. The prosecutor smirked and shook her head. The victim glared at me and stormed from the courtroom. The defense lawyer squeezed Marco with one arm and raised the other for a victorious shake of his fist. Marco’s mother clasped her hands, closed her eyes, and tilted her head back in prayer. Marco stood looking at his feet, expressionless. He had perhaps seen enough reversals to be wary of celebration. He knew the challenges he would face in meeting the expectations I had placed upon him.
As for me, I was surprised at my own words. I felt a surge of pleasure at granting Marco, his mother, and his lawyer this unexpected victory. Then I began to question myself: Did I make this decision so I could feel like a hero? Did I make it out of guilt?
Marco shuffled out the side door with the deputy, his mother blowing him a kiss, and I wondered whether I was only delaying the inevitable, whether Marco would stand before me once again.
Marco successfully completed his probation sentence, although I don’t know what happened after that. Was he able to move ahead despite his felony? Did he overcome his addiction? Did he relapse and commit more crimes? Judges rarely learn the long-term effect of their sentences.
Although I rationalized my decision by referring to the goals of rehabilitation and restitution, Marco’s lack of criminal history, the relatively minor nature of his crimes, the importance of treatment, and the potential harm of prison, I no longer believe these considerations fully explain why I decided this case differently than I did so many similar ones.
So what does?
Sadness. The sadness I felt as I looked at him waiting for me to decide his fate. Sadness at the waste of his energy, his talents. Sadness at seeing him caught in a system that, despite the good intentions of many inside it, often traps people for life. Sadness at how all of this felt inevitable to him — how he never believed he had a chance for anything different.
And trust. Despite the picture painted by the prosecutor, I felt Marco had been trying, even if we couldn’t always see it, to make something of himself, and that this desire was stronger than the anger, despair, and fear that had brought him before me. To properly weigh the arguments on both sides required more than intellect and reason. I also had to trust how the scales felt in my hand.
