Ask the judge

In my last article, I wrote about divorce and my wish that parents would work harder in their marriages to avoid divorce. I want to be authentic. Towards that end, I want to let you all know that I went through a divorce. Almost 30 years ago, I married another law student after finishing law schoo and we divorced about one year later. To this day, I still consider it the biggest failure of my life.

The silver lining is I can appreciate a good marriage now and I know the feeling of despair people feel which helps me empathize with people going thru dissolution cases. I should have mentioned this last month, as I don’t want people who have gone through a divorce to think I am condemning them or that I am “holier than thou.” I am not. Having been there, I know the pain involved. We did not have any children, which made the decision somewhat easier, though still gut-wrenching. Having said all this, my number one wish remains that people with kids would work harder to stay together.

Moving on, I am often asked, “What is the toughest part of being a judge?” It is a close call between deciding parenting plans and sentencing felons, but I would have to say the toughest part of being a judge is sentencing. It is perhaps ironic that the two toughest parts of being a judge are also the two most important parts of being a judge.

Fortunately, we have a lot of very good information available to us when sentencing someone. First, the defendant fills out a pretty extensive form about themselves, outlining their job history, family history and other personal information. The probation officer who writes the pre-sentence investigation (PSI) report then runs a criminal history on the defendant. Finally, the probation officer summarizes the circumstances of the event and reviews any chemical dependency evaluations and psychological evaluations of the defendant.  

To round out the PSI, restitution requested and the plea agreement entered into by the parties is included. Armed with this information, which is usually 8-10 pages long, I then go into the courtroom and hear why sentencing recommendations are made from the county attorney’s office and the defendant’s attorney. I like to hear victim testimony on the impact the crime had on them.  It is important for the defendant to hear firsthand how their action’s affected the victim.

Last, I then give the defendant a chance to tell me whatever they want to. If they do not have anything to say, I usually ask them some questions, usually along the lines of what brought you here? I am trying to ascertain if they are truly accepting responsibility and whether they have thought about their actions and what will they be doing to try to change direction and make better decisions in the future. I like to hear from the defendant.

Of all the factors, the crime itself and the criminal history are by far the two most important considerations. The crime itself for obvious reasons. There is a big difference between a criminal possession of dangerous drugs case and a violent crime, for instance. As for the criminal history, when you see someone with multiple felonies, it is clearly time to get the defendant’s attention.

As I have said before, being a Judge is a wonderful job. However, it is often very difficult to weigh justice, accountability and mercy when sentencing. It is also extremely difficult to send someone to prison, even though it may be necessary. My usual practice is to read the PSI, hear from counsel and the parties (the victim if available and the defendant), say a prayer asking for guidance, and sentence. I have made mistakes, no doubt. But this is the best formula I can think of to get it right.

Judge Russell Fagg, is a past president of the Montana Judges Association. He has handled about 25,000 cases and has tried nearly 200 jury trials and thousands of non-jury trials over his 22 years as a judge.