Imagining a “Sentencing Judges Hall of Fame”

In a (personal favorite) post here last month, I cast current Supreme Court Justices as legendary baseball players while speculating about who would write the opinion for the Court in Booker and Fanfan.  Today, I found myself imagining a “Sentencing Judges Hall of Fame” — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system.  (Compare the mission statement of the Baseball Hall of Fame.)

The first inductee of the Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms.  (Compare the “First Five” in the Baseball Hall of Fame.)  But tough questions follow: should there be separate capital and non-capital wings, state and federal wings, trial and appellate wings?  Would Supreme Court Justices and judges who serve on sentencing commissions have an unfair advantage because of the visibility of their sentencing work?  Would pre-guidelines judges be unfairly disadvantaged for sentencing during the “dead law” era?

You should blame these perhaps silly ruminations on US District Judge Nancy Gertner, whose latest sentencing effort made me want to bestow some kind of award.  This weekend I had a chance to read Judge Gertner’s amazing opinion in US v. Green, 2004 WL 2475483 (D. Mass. Nov. 03, 2004) (also available here), in which she astutely explains why in a federal capital case she “will impanel two different juries, if necessary, for each death-eligible defendant, one jury to determine guilt or innocence and the other to reject or to impose the death penalty.” (A Boston Globe account of the decision is available here.) 

Of course, regular readers know we can thank Judge Gertner for trenchant Blakely analysis in US v. Mueffelman, 327 F. Supp. 2d. 79 (D. Mass. 2004). Moreover, in the last month alone, Judge Gertner has added to her corpus of compelling sentencing opinions with US v. Woodley, 2004 U.S. Dist. LEXIS 21904 (D. Mass. Oct. 29, 2004) and US v. Jurado-Lopez, 2004 WL 2251832 (D. Mass. Oct. 06, 2004). It seems that Judge Gertner hits a home run every time she steps to the sentencing plate.  (However, Judge Gertner’s sentencing dingers are not quite as timely as Judge Paul Cassell’s recent efforts, and no one can match Judge Jack Weinstein’s tape-measure sentencing opinions).

I encourage readers to use the comments to nominate inductees for the Sentencing Judges Hall of Fame.  It helps pass the time as we await a decision in Booker and Fanfan, a decision which may change sentencing history and will surely add to modern sentencing lore.