Judge Michael Marcus – The Passing of a Court Tech Pioneer

Hon. Michael Marcus

Last month we were saddened to hear of the passing of Judge Michael Marcus formerly of the Multnomah County (Portland, Oregon) Circuit Court.  I had the great pleasure of knowing Michael since the late 1990’s because of his work in developing the concept of “Smart Sentencing”.   A video of a presentation Judge Marcus made on his work from 2010 is available here.

Judge Marcus also wrote one of the most popular articles in the history of the Court Tech Bulletin about his "Search for a Quiet Keyboard” in 2007.

But back to the main subject below.

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We learned that Judge Marcus passed away on July 22, 2017, after a long battle with brain cancer that was diagnosed in 2009.  His groundbreaking work in “Smart Sentencing” (the website is still running at: http://smartsentencing.com/whatwrks.html)  and explained in an Oregonian newspaper article from 2010:

“With the exception of treatment courts and juvenile courts, Marcus says the current system of doling out sentences causes unintended harm. He says the system too easily relies on "just punishment" -- or retributive justice -- rather than tailoring sentences to individual defendants by relying on data showing what worked or not on specific offenders in the past.”

"Smart sentencing," the judge says, means paying attention to victims and communities, avoiding the expenses of unnecessary incarceration, sending the right offenders to prison, and ultimately lessening the likelihood that offenders will commit new crimes -- while being careful to serve the real purposes of "just punishment."

A Canadian judge further explains from their viewpoint:

“The difficulty faced by all judges, whether they realize it or not, is the question whether these principles are actually based on actual successful techniques.  Or in repeating all the correct words are we simply performing criminal exorcisms--"Leave this person, foul spirit" which are ritually satisfying but not of much ultimate practical use either for the offender or the community.  In family as well as criminal law, the judge is required to do a number of things, but for the most part never finds out what the ultimate outcome of the decision was.  If you will excuse me using a second metaphor in this paragraph, we are like surgeons employing operating techniques because we are told they are what is required, but we rarely learn if the patient lived or died.  We don't want surgeons using blood letting techniques on hemophiliacs, just because they are told to do that.  We advance by actually looking at outcomes in medicine, something the criminal law and judges really don't do often. That's why I liked what Judge Marcus was doing, trying to gather evidence and employ it.”

Last, a colleague writes about the actual implementation in Multnomah:

“Judge Marcus helped create a data warehouse that collected data from corrections, the prosecution, the jail, the courts and law enforcement. It is still in use as a research tool. He did not ever get to the sentencing support system he dreamed of, and we never developed a process for comparing sentences imposed by one judge with those imposed by others.”

Perhaps this is the next step that can be taken in recognition and as a memorial to Judge Marcus’ efforts is to do the analysis to see, what actually does work?