> No system of rules could ever handle all the obscure edge-cases that humans can. In the US federal criminal justice system during the 1970s and early 80s jud

> No system of rules could ever handle all the obscure edge-cases that humans can. In the US federal criminal justice system during the 1970s and early 80s judges had a ton of discretion over sentencing. Some were “hanging judges” that gave really harsh sentences. Some never gave any harsh sentences. Some gave harsh sentences to black people but not to white people, and so on. The legal profession and Congress looked at this situation and decided it wasn’t fair. The difference between probation and ten years in prison shouldn’t be whether or not the judge had indigestion. The federal sentencing guidelines were put in place—-a very detailed system that considered the crime, mitigating and aggregating circumstances, the background of the convict, and several other relevant factors. Judges were supposed to use this system to impose uniform, fair sentences. Judges hated the sentencing guidelines and kept on trying to depart from them “in the interest of justice”. For a while the Supreme Court said no—-it forced them to follow the system. But in the mid aughts a new majority reversed these precedents. The sentencing guidelines were declared to be advisory. It took a while for the guidelines era habits to fade but now we are back to a situation where which judge you get is a significant factor in how harsh a sentence you get. In theory the magic answer is guided discretion. That allows for mostly uniform treatment and a safety valve for unusual situations. But how do you enforce that on a nuts and bolts level? Everyone thinks his particular case is special. Thoughtful empathetic judges are likely to be persuaded that they are. I don’t know what the answer is but I do know there isn’t an easy one.