Three looks at sentencing

Taking emotion out of the courthouse

By A.J. Wagner

How do you take emotion out of court decisions?

How do you take emotion out of court decisions?

1. Vengeance
It was surprising for me to read an article in The New York Times at the end of last month in which Thane Rosenbaum, a law professor from Fordham University, argued that vengeance is a moral cause. That’s not something usually seen from a law professor because they know judges do their best to take emotion out of court decisions.
A jury is always asked to put aside any bias, prejudice and sympathy when considering a case. Juries are asked to lay aside personal feelings and apply the facts of the case to the law as instructed by the court. There is little room in the court for emotion thus, no room for revenge. Yet, Professor Rosenbaum argues there is a place for vengeance. He said, “Every legal system, however dispassionate and procedural, must still pass the gut test of seeming morally just; and revenge must always be just and proportionate. That is what the biblical phrase “eye for an eye” means. Justice requires that no less than an eye can be taken in retaliation for a lost eye, but no more than an eye either.”
Besides Mahatma Gandhi’s admonition that “An eye for an eye makes the whole world blind,” there is a lack of practicality to the suggestion. If an impoverished thief takes $10 and spends it before he’s caught, how do we extract $10? If he breaks an arm, do we break his and call it even? What is the balanced “eye for an eye” when someone threatens to kill another person?
2. Current Ohio Law
This is what an Ohio judge considers when sentencing: 2929.11 Purposes of felony sentencing.
(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
In determining how to protect the public and punish the offender, a judge looks at the seriousness of the offense, the likelihood of recidivism and what others in similar situations have received as a sentence. There are other factors that can be considered like genuine remorse, cost of punishment, availability of a rehabilitation program, previous failure on probation and more. Sentencing factors are considered by a judge much like a jury considers its decision, without bias, prejudice, or sympathy. Revenge is not a consideration.

3. St. Augustine
The Roman Empire had a faith-based initiative. It required local bishops to be judges for the community. Saint Augustine, a prolific fourth and fifth century writer and, some would argue, Christianity’s greatest theologian, was Bishop for the African city of Hippo (present day Annaba, Algeria). Naturally, Augustine gave much thought as to how theology impacted law. He came up with this sentencing philosophy:
We should never undertake the task of chiding another’s sin unless, cross-examining our own conscience, we can assure ourselves, before God, that we are acting from love. If reproaches or threats or injuries, voiced by the one you are calling to account, have wounded your spirit, then, for that person to be healed by you, you must not speak until you are healed yourself, lest you act from worldly motives, to hurt, and make your tongue a sinful weapon against evil, returning wrong for wrong, curse for curse. Whatever you speak out of a wounded spirit is the wrath of an avenger, not the love of an instructor. Act as you desire, so long as you are acting with love. Then there will be no meanness in what may sound mean, while you are acutely aware that you are striving with the sword of God’s word to free another from the grip of sin. And if, as often happens, you begin some course of action from love, and are proceeding with it in love, but a different feeling insinuates itself because you are resisted, deflecting you from reproach of a man’s sin and making you attack the man himself – it were best, while watering the dust with your tears, to remember that we have no right to crow over another’s sin, since we sin in the very reproach of sin if anger at sin is better at making us sinners than mercy is at making us kind.
Take your pick of these three approaches and argue it out at my blog. Go to
and select the blog drop down menu. You’ll find me there.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no
liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

2 Responses to “Three looks at sentencing” Subscribe

  1. truddick August 10, 2011 at 4:40 pm #

    Interesting column–as always!

    My observation is that we don’t all agree on the purpose of criminal justice system. Some think it’s retribution; some rehabilitation; some deterrence or prevention.

    Since rehabilitation rarely works for serious offenders, until we find more reliable techniques, we should hold that as an ideal but not one within reach.

    That leaves deterrence or vengeance. If as a society we could agree on one, we’d be more clear on what sentences are appropriate.

    One thing to note: our system currently penalizes success and rewards ineptitude. A thief who steals $20 is convicted of petty theft and gets a shorter sentence than the one who steals $200,000–despite that both have the same moral failing, differing only in degree. Someone who attempts murder but fails gets off more lightly than one who succeeds–again, both have identical intent and similar moral failing. In essence, if you’re too stupid to steal a worthwhile total, or too clumsy to really kill the person of your intent, the system thinks you’re less of a menace.

    Not logical, in my view.

    • A.J. Wagner August 12, 2011 at 4:04 am #

      Since the vast majority of our criminal defendants are drug offenders or commit crimes to support their drug dependence rehabilitation is the goal in a majority of cases and it actually works in a most of them.

      You raise a valid point about the murderous individual who botches the crime but I would argue that the theft of $20 is significantly different than the theft of $200,000. Both are thefts but one is likely to be far more damaging than the other. It might be like comparing someone who tries to stab another with a butter knife as compared to someone who uses a machete.

      Thanks for your comment and interest!

Leave a Reply

Law & Disorder: 4/25

Broken brandy bottle A family left for church in the morning. When they returned, they noticed their motion-sensor alarm system […]