Vanderbilt Law Review


Matt J. Gornick

First Page



The American criminal justice system is called many things; "compassionate" is usually not one of them. Yet in the course of federal criminal proceedings, a sentencing hearing allows a judge to convey compassion toward a defendant, if only to say, "I'm sorry about your situation, but this is how I must apply the law." Likewise, a defendant might throw herself on the mercy of the court in hopes that the judge exercises discretion compassionately. Mitigating factors and downward departures suggest that judges are capable of doing so. But how does a sentencing judge show compassion, as opposed to simply feeling it? In practice, a judge might make a sympathetic comment about a defendant's circumstances or recommend rehabilitation. Arguably, a judge is more likely to show compassion when imposing a prison sentence, because a defendant's liberty is at stake. But as it turns out, this could be reversible error under the 2011 case Tapia v. United States, in which the Supreme Court interpreted the Sentencing Reform Act of 1984 ("SRA") as providing that "when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation-because imprisonment is not an appropriate means of pursuing that goal." Consider the hypothetical story of Paul Pennybags, whose Ponzi scheme was foiled by the Securities and Exchange Commission. Pennybags was indicted and swiftly convicted. The only remaining question is how long he will be imprisoned for. Pennybags is an anomalous convict-although he suffers from drug addiction, he used the proceeds from his exploits to fund a domestic violence center in Atlantic City. In every way, he is a sympathetic white-collar criminal if there ever were one.