Recently, some folks at Louisiana State University did a study about the relation between sentencing in juvenile delinquency cases and LSU football losses. They came to the conclusion that the average disposition was 35 days longer after an unexpected football loss. The sentencing was even longer when LSU was ranked in the top ten.
This study highlights the emotional nature of sentencing. I’m certain that if you asked each of the judges in the study whether or not football losses or wins had any effect on their sentencing, they would all say no. Not just no, but an emphatic no, probably coupled with a “how dare you imply….” However, we are all subject to biases and emotional influences that we are not aware of. These judges are no exception.
Sometimes, as in the case of Federal Drug Trafficking, there isn’t going to be much you can do because the sentencing guidelines are strict and don’t allow for a lot of discretion in some cases. However, for most crimes there will be a sentencing hearing, either at a later date or immediately following the plea or trial. At the sentencing hearing, the criminal lawyer makes argument to the Court about what should (or shouldn’t) happen and the prosecutor does the same. If there has been a plea bargain, the hearing is more or less perfunctory, as what has been bargained is what is most likely to happen, assuming the judge approves.
So how do you minimize the impact of the football scores and the personality (and mood) of the judge? If you are a juvenile in Louisiana, how do you make sure the behavior of a bunch of college football players don’t have anything to do with your fate? It isn’t enough to avoid court during football season. You don’t always have that choice, and you might benefit if the local team wins. Plus, there are any number of other factors that might affect judges just as much.
These are good questions without many good answers. It is important to have a good criminal defense attorney who not only knows the law, but knows the judge. What’s that old joke? A good lawyer knows the law: a great lawyer knows the judge. This is a truism not because a lawyer can influence the judge behind the scenes, but rather a lawyer who is familiar with the judge can read the judge’s moods and quirks, know what to say and what not to say, what are that particular judge’s triggers, and when to ask for a continuance because today isn’t the day to make that particular argument. A good criminal defense attorney can also engage in successful plea bargaining which takes some of the decision making out of the judge’s hands.
None of which, of course, addresses the underlying problem with implicit bias and the inherent unfairness of the LSU findings. In an ideal world, none of this would have to be a consideration. However, we live in the real world, not the ideal one. When you are facing a criminal sentence that may include all too real jail time, pragmatic solutions tend to be more effective than theoretical ones.
Until the world becomes fair, that is. But I’m not holding my breath.