Shon Hopwood and Kopf’s terrible sentencing instincts

I had intended to write one post today as a follow-up to Gut instinct and sentencing–a challenge to federal criminal law practitioners. However, last night I saw something and I decided to write another post although on the same subject.

Shon Hopwood was a young man when I sentenced him to prison for a long time in the late 1990s.  Hopwood entered a guilty plea to five counts of bank robbery, and one count of using a firearm during a crime of violence. I sentenced Hopwood to 147 months in prison and concurrent terms of supervised release. I also ordered Hopwood to pay restitution in the sum of $134,544.22.

Yesterday, Tony Mauro wrote a story about Mr. Hopwood. Here is part of what Mauro wrote:

Unusual Law Clerk Hire for D.C. Circuit Judge Janice Rogers Brown

Shon Hopwood’s unique career in the law has taken a dramatic new turn. The onetime jailhouse lawyer who served time in federal prison for robbing banks has been hired as a 2014 law clerk for Judge Janice Rogers Brown of the prestigious U.S. Court of Appeals for the D.C. Circuit.

“I’m amazed at the opportunities and second chances I have been given,” said Hopwood Wednesday after returning home to Seattle from his interview with Brown on Monday. Hopwood said the judge offered him the job soon after the interview. “I quickly said yes.”

While in Washington, D.C. Hopwood, 38, also visited former solicitor general Seth Waxman, who has been something of a mentor to Hopwood for more than a decade. They made contact after a certiorari petition Hopwood wrote for a fellow inmate while in prison was granted review by the Supreme Court. The 2004 case was Fellers v. United States. Hopwood chronicled his experiences in the 2012 book Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption.

After a post-prison stint with Cockle Law Brief Printing Company in Nebraska, Hopwood has been a student for the last two years at University of Washington School of Law. Last summer he interned for a federal district court judge in Seattle, and this summer he has been working in the federal public defender’s office, also in Seattle. Hopwood said that partly because of the budget cuts caused by sequestration, he has appeared in court for sentencing and other proceedings more often than fellow students working at law firms. Hopwood is scheduled to graduate from law school next summer.

Three things:

    • Hopwood deserves all the credit in the world. I hope he makes the best of an astounding opportunity.
    • Janice Rogers Brown is a hero. Although pilloried by the left when she was appointed, the woman I came to know while serving on the Codes of Conduct Committee for six years is a stunning combination of brilliance and perfectly centered good judgment. She is also a wonderfully humble, kind and decent person.
    • Hopwood proves that my sentencing instincts suck. When I sent him to prison, I would have bet the farm and all the animals that Hopwood would fail miserably as a productive citizen when he finally got out of prison. My gut told me that Hopwood was a punk–all mouth, and very little else.  My viscera was wrong.

RGK

81 responses

  1. Judge,

    Before concluding that your “sentencing instincts suck,” you should perhaps consider that it was in large measure the lengthy sentence you imposed on Mr. Hopwood that served as a catalyst for him to redirect his energies and efforts. Had you imposed a less severe sentence, he may not have “gotten the message” and ultimately failed to become a productive member of society. Furthermore, your instincts concerning Mr. Hopwood at the time you encountered him may very well have been 100 percent accurate, just as Judge Brown’s instincts concerning the Mr. Hopwood she encountered may likewise be 100 percent accurate.

    • Russ,

      Perhaps. But, the real issue, as I see it, is whether judges are much good at sentencing when they exercise their vaunted discretion. That’s, frankly, why I like the Guidelines and frequently sentence within them despite the fact that they often seem very harsh to me.

      Perhaps the Yale liberals are right. That is, I fear judging. See Kate Stith and Jose Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts. What the Yale liberals, don’t understand, however, is that the fear of judging may be well-founded. But, that admission would not fit “do good” jurisprudence (Hercules, in the title of this blog, don’t you know) that always opposes legal realism.

      All the best.

      RGK

      • Judge,

        Seems to me whether a judge is “much good at sentencing,” largely depends on how you define “good.” It may also depend on when you assess such. What appears to be a good/bad sentence at one point in time may appear otherwise at a different point in time.

        As for your perceived or possible fear of judging, I am not sure that is necessarily a bad thing. I would agree that “fear of judging” that interferes with the performance of a judge’s duties would be problematic. If, however, a judge’s “fear of judging” merely serves to remind the judge of the important responsibility he or she has assumed, the enormous power he or she wields, and that the authority of his or her office should be employed only after an appropriate degree of thought and reflection, such “fear” may, in fact, represent a positive trait.

        • Russ,

          I agree that “good” at sentencing depends upon the definition of the word. After all, somebody must sentence. That said, two quick points: (1) district judges are good at applying rules, but not so good at crafting principled exceptions to rules–think unwarranted sentencing disparity; and (2) like it or not Congress has the right to define the specific punishment for any federal crime and, thus, when the Guidelines track Congressional will, a judge who sticks to the Guidelines has a greater claim to democratic legitimacy than a judge who does not.

          All the best.

          RGK

          • A single anecdote–your Hopwood, for instance–does not a trend make. As a stat prof I once had “advised,” if your theory requires a straight line, collect two data points.

            Your gut sentencing instinct sucks, based on what data? How does your gut sentencing success rate compare with your within guidelines sentencing success rate, considering recidivism rates and the rehab/deterrence successes in your sentencing?

            Democratic legitimacy for rotely following a Congressionally set guideline? Aside from the quibble that we’re a republic, not a democracy, I suggest that…democracy…is better served by keeping in mind that our American judiciary is both a coequal and coeval branch of the Federal government, alongside the other two, not subordinate to either of them–and judges remembering that.

            We civilians pay you to judge, not to be bureaucrats. If we get a bad deal out of that on occasion, that’s better than the plethora of bad deals we get from bureaucrats. Bureaucrats don’t serve, in any meaning of the term, justice; they only serve the routine of standards.

            Follow the data, and if they warrant, follow your gut. If the data don’t warrant, only then don’t follow your gut.

            Eric Hines

      • Judge:

        IME, there are no sentencing “instincts.” One of the judges I respect most (a state court judge) spends HOURS on each sentencing he does – despite the fact that he doesn’t have the time. When I ask him why he spends so much time on sentencing, he replies that it is the most important thing he does – it’s important to the defendant, of course, but it’s also vitally important to the victims and the society as a whole.

        Guidelines are nothing more than bureaucratic cop-outs. Bureaucrats merely follow “the book” as set out by others. That’s easy, simplistic and simply wrong.

        Also IME, Judges are put in their positions to exercise their individual judgment and, if you will, “instincts”, especially in sentencing.

        That’s why you get the big bucks! (LOL)

        I’ve been practicing criminal defense for more than 3 decades. In that time, there have been approximately a dozen clients who have truly rehabilitated themselves out of the thousands of people I’ve represented.

        OTOH, people who I’ve managed to present a second chance – by acquittal – seem to be *much* more successful in turning their lives around.

        The innocents who I’ve had acquitted (all of them, thank the stars) have excelled after their trouble.

        Judge, the people who appear before you for sentencing are responsible, one way or another, for their own situation. IMO, you must carefully craft an individualized sentence for each one, being fair and “just”, and using your own ideas of equity and fairness so that any sentence you impose is acceptable to the person you see in the mirror every morning, and your tempered, careful consideration is apparent to the defendant, the prosecutor, the victims, the public and anyone else concerned.

        That’s all you can do. That’s all that’s expected. Mr. Hopwood did the rest. Good for him.

        • Russ2,

          I appreciate your insights. In particular, in the dark of the night,your advice–if I try hard and can live with myself when I look in the mirror that’s all you can do–is surely comforting. Thanks.

          All the best.

          RGK

    • Curious to hear Shon Hopwood’s thoughts on that question, Russ. He did recently write a book, after all (which I haven’t read yet); I’d be surprised if he doesn’t address the question raised in Russ’s comment. Having had the pleasure of meeting Mr. Hopwood last year at a convention, and having had a few conversations with him, I’m pretty confident his assessment of the utility of the length of his sentence would be fairminded and honest.

    • Dropping in here late from a blog that linked to this. I’m curious; is there any research on the impact of sentencing on the victims? I mean, if somebody terrorised me with a gun, my first instinct would be, “let them rot”. However, longer term I’m not sure. Is there any evidence either way?

      • Writer Guy,

        I am aware of no studies that assess the impact of sentencing on victims. That would be a very interesting research topic for some enterprising researcher.

        As part of the sentencing packet, I often receive victim impact statements that detail the impact on the victims of the offender’s conduct. Where there are identifiable victims, as in the case of a bank robbery, the investigating probation officer who prepares the presentence report typically provides the court with information on the victims’ status following the offense. That information frequently figures into the decision on what sentence to impose.

        In certain cases–for example, child pornography cases where the victims were abused and photographed at a young age and their abuse is made public by publishing the photos on the internet–there is often a request for monetary restitution designed to help those victims deal with their medical and mental health care costs. The court has broad discretion to impose restitution in such circumstances.

        All the best.

        RGK

        • (Thanks for replying, sorry about the pseudonym.) While I have your attention…

          Victim Impact Statements (as we call them in the UK) are another thing that perplex me.
          Logically, a criminal doesn’t know whether – for the sake of argument – the middle aged lady he’s mugging is (a) agoraphobic on her first outing in months,or (b) seasoned foreign correspondent.

          One will be traumatised and housebound for months or years, the other will write a wry blog entry about the experience.

          In the UK, a couple of years back, a judge sentence a rapist leniently because the victim seemed so unperturbed in court; effectively she was being punished for not following the “destroyed woman” script.

  2. Dear Judge Kopf,

    I wouldn’t say that your sentencing instincts suck. While I meant what I said at sentencing, I was hardly the person that could back it up. I was a reckless and selfish young man back then. I changed. I think most of us change from the age of 22 to 38. And many, like me, outgrow the irresponsibility and foolishness. I can’t tell you how many law enforcement officers (including prosecutors) have come up to me and said something similar to this: I know your story and I too committed some crimes when I was young (although not in the category of bank robberies), and I was lucky enough to not get caught. They changed and channeled their energies and became responsible professionals. I did, too.

    And to answer Russ’s question, as far as the length of sentencing, I think it had little effect on my rehabilitation. Prison is not the place for personal growth. Very few people come out of it for the better. From my experience, sentences over 5 years do little to help society or the prisoner. Five years is about the maximum amount of time for someone to “get it” and change and create a different life. More than that, and prisoners feel hopelessness and they think “why bother, I just need to get through this and go home.” It’s very difficult to “seize the day” in prison and use every day to prepare for release when you staring at a 10- or 20-year sentence in the face. And like I said, prisons are not designed with rehabilitation in mind. It’s almost solely about incapacitation, which is why the national recidivism rate hovers at 66%.

    I made it because I grew up and because I received a large dollop of God’s grace in the form of: 1) a loving family that never gave up on me; 2) finding the law and helping others through the law, which gave me purpose; 3) a beautiful woman who encouraged me (and I later married once I was released); and 4) some gracious lawyers at WilmerHale who mentored me and pushed me to dream big (my original dream was to become a paralegal, not law school, and definitely not a future clerk on the DC Circuit).

    But as a judge, you’re constrained by the system we have. I’ve never believed that it’s up to judges to fix that system on their own. It requires citizens to view criminal justice issues differently (and heck, to view prisoners differently), and a Congress to actually pass some legislation.

    I feel fortunate that I have been given so many second chances, including the sentence which allowed me to be released at a fairly young age. That doesn’t always happen.

    http://www.theatlantic.com/national/archive/2012/12/i-got-a-second-chance-after-robbing-banks-and-others-should-too/266567/

    Take care,
    Shon

    • Shon,

      Thanks for your comment and your fascinating insights.

      In the “for what it is worth” category, I have thought for a long time that 60 months was about the maximum sentence one should impose if you were were solely hoping to make a positive impact on the prisoner. But, as you well know, the relevant federal statute (18 U.S.C. § 3553(a)) requires judges to look at a host of other things. And, sometimes, the goals of sentencing are contradictory when applied in individual cases.

      The foregoing intellectual BS aside, good for you and good luck! You will learn many thing from Judge Rogers Brown.

      All the best.

      RGK

  3. Dear Judge Kopf,

    Agreed. Rehabilitation is only one sentencing goal of many. I wish it had a more primary role in sentencing.

    And thank you. The last year of law school will be anticlimactic now because I will be forced to wait an entire year before beginning my time with Judge Brown; I wish it were tomorrow!

    Shon

    • Shon,

      Savor your third year! Luxuriate,now,in your incredible success.Keep a daily journal–30 years from now it will amuse you while giving your grandchildren warm insights into who you were and how you became the distinguished lawyer that you will become.

      Most of all, be happy. All the best.

      RGK

    • Shon,
      Really inspiring. I ran a college program in a prison and saw up close the difference between rehabilitation and what normally happens in prison. I’ve forwarded this to several of my past students as a little inspiration for them.

      Thanks for commenting on this post, and thanks to the judge for writing it.

      If you care to share more, please feel free to email me at cam13@pct.edu–I teach at a small college in PA now, but am still teaching distance courses at the prison to help some of the men get their degrees before the program closes (we lost all of our funding due to state budget cuts)

  4. Rich, although I have never practiced criminal law (save a few trips to New York courts of lower jurisdiction to deal with minor driving offenses committed by my oldest son), this is sort of interesting jurisprudentially. Without having bothered to look back to the original posts on this blog, I had always assumed that “Hercules” was a reference to Dworkin’s Hercules. As brilliant as Dworkin was (he died less than a year ago — I actually met him three times in person; he was frighteningly smart), I always thought that his theory broke down for things in which judges clearly have “discretion” in what he would have called the “strong sense” of the word.

    Dworkin was really battling H.L.A. Hart’s version of positivism, and Dworkin was essentially building on Lon Fuller’s work. In its early formulations, Hart’s theory was extremely antiseptic with regard to the interaction of law and morality. Hart’s famous example was an ordinance that read “no vehicles in the park.” Hart argued that once you got pas obvious examples (it clearly means that you can’t take your Hummer and drive through the park) that judges were essentially “legislating” when forced to decide whether roller skates or a kids’ pedal car counted as vehicles. Hart denied that morality as such played any role, and certainly didn’t have any trump card effect.

    Fuller shifted ground to examples of morally outrageous laws. He pointed post-WWII cases regarding German informers. In one notorious example, a woman wanted to be rid of her husband. Like really rid of him. He was fighting for the Germans and it was 1944 and he was home on leave, where he privately said that the war was lost and Hitler was an idiotic madman. She stomped down to Nazi party headquarters and turned him, where they sentenced him to death — but then they went one step worse and sent him to the Russian front where he was killed. She got prosecuted under an obscure German statute that made it a crime to illegally deprive someone of her freedom. She argued that there was nothing illegal about what she did. The West German court through various lines of tortured reasoning upheld her conviction. Fuller thought that what the court was actually doing was in effect “nullifying” the Nazi law as being morally outrageous, while Hart said that it would have been more honest to in effect enact a criminal statute with retroactive effect.

    Dworkin’s naturalistic streak wasn’t as strong as Fuller’s, but he argued that courts essentially invoke moral reasoning when deciding to extend (or not) various substantive rules, such as strict products liability. Eventually Hart’s followers developed what came to be known as “soft” positivism that rescued it from many of deficiencies that Dworkin identified. Many of them complained later (with some justification) that Dworkin never really addressed their fixes, but kept on pretending that positivism had never progressed beyond Hart’s work in the late 1950’s and early 1960’s.

    All interesting (to me anyway), but not much of it seems to account for things like sentencing, or whether the equities favor a preliminary injunction, or whether evidence is vulnerable to a Rule 403 objection. These things are set up so that trial judges have discretion, in that there are multiple “right” answers, and no appellate court would or could ever say that they were wrong.

    Unfortunately, I have never developed any “gut” instincts about sentences, because I’ve never had to deal with them, and it seems like just about the worst part of the job to me. Best, Pat.

    • Pat,

      Thanks very much, and, yes, Hercules in the title belonged to Dworkin. We need to have a longer discussion about your insights, but not now. It suffices to say that Dworkin and others never really addressed what is happening when a judge has discretion–that is, the two right answer question that you posed. That, in my judgment, is far harder to answer and has far more real world implications.

      One thing, though, your reference to the vehicle in the park problem brings up the fight between Posner, Scalia, and Garner. Here is Posner:

      Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

      Now read Ed Whelan’s very long response in defense of Scalia and Garner. It is very pointed too and it is here.

      Two things about the vehicle in the park bit. I am glad to see it can still provoke fights between egg heads. Second, those discussions almost never get at what is important to me. For example, assume you are in a federal court where there is no or little common law such that the defense of necessity does not apply and assume further that driving in a park is a criminal offense punishable by 0 to 1 year in prison. How would you sentence the ambulance driver? Does it matter whether the driver was a drunk college kid driving through the park in old ambulance he bought as surplus? Does it matter whether the ambulance driver was a misinformed volunteer fireman who didn’t realize that the Park Service has helicopters for emergency situations?

      Take care.

      RGK

      • Rich, yes, at a later date. Posner is another subject all unto himself. Once he figured out he wasn’t going to make the Supreme Court, we found out what he really thought. Actually, to be fair to him, he was much that way all along, which is why he didn’t get to the Supreme Court. I think he’s pissy at Scalia because Scalia played it relatively “safe” on the DC Circuit and got to the Supreme Court, while Posner continued to pursue an intellectual vision. Posner is essentially a utilitarian, so for him the question would be whether the marginal utility of enforcing the ordinance in the ambulance case exceeds the utility of allowing the driver to rescue the person, and if the first, how much punishment is necessary to deter violations of the rule.

        No offense to any judges, but that’s a lot of figuring for one or three judges to do, especially with little more than hunches as to the values of the variables.

        Of course, in the real world, no prosecutor would bring such a case, because “Action News” would be at his or her doorstep demanding to know why a hero was being prosecuted. But why let the real world be the piss in the punchbowl of a theoretical debate? Best, Pat.

        • Pat,

          This is shark week. With that in mind, I confess that I would not know a “marginal utility” even if it bit me in my ever expanding ass.

          All the best.

          RGK

  5. Judge & Shon–

    I would absolutely love to have you both on HuffPost Live to talk about this exchange, the sentencing guidelines, the judges’ gut, and how our criminal justice system can yield us additional Shons.

    Shon, I know how to reach you, but I’m resorting to the comments to get the Judge’s attention. You both can reach me at mike.sacks@huffingtonpost.com. It would be an honor to host you two, and all you need is a webcam!

    Thanks,
    Mike

    • Mike,

      We respect, I will pass.

      This sounds weird and maybe it is but: I have a policy of not appearing on or contributing to for-profit media. I worry about questions having to do with a judge seeming to endorse one business entity over another and stuff like that.

      All the best.

      RGK

      • Judge–

        Thanks for your quick reply. I can guarantee that your appearance would hardly count as an endorsement — I’ve had my share of interviewees who take their time on the air to bash HuffPost. If you do reconsider, you know where to reach me.

        In the meantime, I will continue to be your faithful reader.

        -Mike

  6. Judge Brown wrote an extremely thoughtful opinion concurring in the judgment in Williams v. Martinez, 586 F.3d 995 (D.C. Cir. 2009). The case concerns whether federal courts have jurisdiction to review habeas petitions alleging ineffective assistance of appellate counsel in the local D.C. Court of Appeals. Judge Brown wrote that the “current dilemma arises out of a succession of procedural anomalies that can only be described as ‘A Series of Unfortunate Events.'” Id. at 1002. She explained that she would read the statutory scheme broadly to maintain federal jurisdiction solely as a safety valve. It is necessary to study closely her opinion to understand how carefully she explained the dilemma concerning the correct procedure to raise ineffectiveness claims of appellate counsel concerning the local court. Elaine Mittleman

  7. Pingback: Modern Criminal Justice, Part I: Hercules, the umpire, and Shon | Attorneys at Blah

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  10. When it comes to sentencing, one of our best state judges in Houston used to say that there are two types of people she sentenced: those she was mad at and those she was afraid of. And, she reserved long sentences for those she was afraid of.
    When it comes to sentencing, you have to do the best you can with the information you have. For example, criminologists write about “maturation reformation,” meaning as we get older, we grow up. It’s very unlikely that a person will commit violent crimes after about 40 or so. On the other hand, alcoholic forgers do it until they die.
    Mr. Hopwood had several years to grow up due to your sentence. He may have taken part in prison education programs. On the other hand, a multiple bank armed robber would be a person I would be afraid of.
    Don’t second guess yourself based on a single defendant who turns out OK. Just decide whether you’re afraid of the defendant or mad at him and look at the other factors in the PSR. And, it might not be a bad idea to have lunch with some state criminal judges to talk about sentencing. They do a heck of a lot more of it than federal judges. They might have some ideas for you.

    • Tom,

      Thanks especially for the words of wisdom from the judge in Houston. Also, I entirely agree with you about maturation reformation–that even happens with some drug dealers. As for talking with state judges, are you crazy? I am a FEDERAL judge, don’t you know. Seriously, my former law partner is a state judge, and that is where most of the heavy lifting takes place. Good suggestion.

      Thanks again.

      All the best.

      RGK

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  12. Darn it, Mark Twain and Will Rogers are gone, and somebody needs to make a cheap shot, so:

    Mr. Hopwood started out as a child with a bright future, then fell into bank robbery, and has has since descended into law.

    • Bada bing!

      Incidentally, when I took the bar in Nebraska, “George Turner” was the guy who told you whether you passed or failed.

      All the best.

      RGK

    • Law schools will accept students with significant crimes in their backgrounds, provided they disclose them and there’s good reason to think that they’ve turned things around. Getting admitted to the bar is a different issue. One of the Arizona schools admitted a man with a criminal homicide in his past. However, he could not get admitted to the bar. Mr. Hopwood surely will face a significant investigation to get into the bar of any state, though getting a clerkship will certainly be a good start.

      • I went to law school with a guy 2 years ahead of me who had graduated in the top of his class, been an articles editor for law review and was headed to BigLaw affluence when his omission of a felony drug conviction/prison sentence was discovered by the Board of Law Examiners during their investigation prior to bar examination. I guess he thought if he didn’t put it on the Declaration of Intent and his applications (and it was an out of state conviction) he might avoid detection. No Dice said the Texas Bar. Not to mention a 6 digit loan debt for a law degree rendered worthless as used toilet paper. Moral of the story: Candor begins long before we’re subject to the disciplinary rules or professional responsibility/ ethical regulation. I felt sorry for the guy but in retrospect that kind of sin of commission (by omission) betrays the cornerstone of the edifice of trust attorneys occupy in society’s orderly administration of its affairs and citizen conformity to reasonable standards of behavior relative to the body politic. Just found this blog-and enjoy it already after reading just 3 posts (although I’m one of those despicable liberal ACLU member/criminal defense types you fellows in the Federalist Society despise!).

  13. I run a blog in Miami about the criminal state court in Miami. I have literally seen hundreds of state court judges come and go over the decades. I will take a judge who is not a calculator- meaning not someone who can just add numbers and look at a matrix- even the most severe judge- any day over the calculator. Because that Judge lets me do my job- A job I have trained at for close to thirty years to do to the best of my ability. Every person is an individual. Indeed, our country was founded on the principle of respect for the individual and not the collective. Give me a judge who looks my client in the eyes and tries to see his/her soul any day of the week, even if the judge ends up making a mistake.

    Shon had a great point: a 60 month sentence is about the max someone can serve and be expected not to be institutionalized. When I do a sentencing I sometimes work backwards. When a prosecutor throws out 30 years, I say something like “30 years ago was 1983. You mean to tell me that if on these set of facts my client was sentenced during Reagan’s first term- a time when no one knew the terms internet or google or smartphone, and got out today, you would say to yourself,’yeah, that seems about right.’ ” Working backwards sometimes helps judges and prosecutors have a better appreciation for the time they are considering.

    Judge, Shon, what an absolutely amazing discourse. I am very humbled to read this.

    • Rumpole,

      Thanks very much, and most particularly for your “looking backward” argument. What an effective way of illustrating what long sentences really mean. If you spend several decades sentencing people under the Guidelines you can pretty easily become habituated (ironically, a term frequently associated with drug users) to very long sentences. “Looking backwards” helps the judge to put a long sentence in a concrete context.

      All the best.

      RGK

  14. Pingback: Shon Hopwood, Stephen Glass and Second Chances in America | emptywheel

  15. Pingback: A cautionary tale–one more thing on Kopf’s sucky sentencing instincts « Hercules and the umpire.

  16. Shon Hopwood is the epitome of a humanitarian. I chose to pipe in quickly in the event there is even a whisper, “well, jailhouse lawyers have nothing but time on their hands, no wonder he got good at reading.”

    In August 2010 Shon caught wind of little ol’ me fighting tooth and nail to the SCOTUS pro se’ for my husband, William, and he called from Nebraska. William was in a homeless shelter for veterans and I was at my wit’s end. Shon and his wife, Annie took the reigns and never looked back — got pro bono help from Jacob Huebert and his fiancé Allison, and the four of them wrote the Petition for Cert… and they foot the bill!! This whole time, he was putting himself through school and had a baby on the way.

    Cert was denied, but I drove 10 hours round trip to thank him — I didn’t feel like it was enough, though. Then, when round two for William came and went through the revolving door of the US District Court and habeas was dismissed, and a Cert of Appealability was denied — I took everything that Shon, et al had written and got a COA from the Fourth Circuit.

    All of a sudden the 4th told me to get a lawyer and I called Greg Nevins, who called the ACLU, who called Erwin Chemerinsky and Dechert Law sent Ben Rosenberg and Joshua Hess. History is happening all around us and I give much credit to Shon and Co. – because of what they did – I won the chance to be heard.

    MacDonald v. Moose, 710 F. 3d 154 – Court of Appeals, 4th Circuit 2013

    “Lawman” is a good book, written by a great man!

    • Also… you know that old saying that… “when you assume, you make an …. out of you and me.” I won’t say I never assume, but lately…(Over the last 3 years) after learning so much law… well, if assuming causes one’s “behiney” to grow — I swear all I am now is a big butt. … albeit a wise big butt, but with huge hind-pockets… makes me think of the scene out of Pink Floyd’s movie, The Wall…

      Alas, I digress. The most recent act of assuming was committed this time last year when I enrolled in the local junior college degree program for Paralegal Technologies. My assumption that there are others like me who “just want to help ensure that my fellow citizens’ civil rights are protected…” well, let’s just say my study group invitations were completely ignored.

      Go around the room and tell everyone your name and what you want to do with your Paralegal degree. “I want to assist in two areas of law,” I said, “Pro Bono / innocence projects, and veterans courts, a lot of soldiers returning from war are ending up in jails and prisons, I’d like to help them.”

      “There’s no money in that. Next”

      I heard that in every class. My Legal Research professor was the first to inform me that at this particular school Criminal Law is an elective and there are no appellate law courses.

      Darn. All that GI Bill money — I should have been a smarter butt.

  17. Judge Brown may be personally charming, and has done something commendable (if not quite heroic) extending a clerkship to Mr. Hopwood. Nonetheless, on issues of government’s scope and gender (at least), she is reactionary and non-reflective in a way that would shame Justice Thomas. Before you begin to pen her hagiography, do investigate her opinion history, both at the D.C. Circuit and California Supreme Court.

    • Stephen,

      Thanks for your comment. I am, of course, not prepared to debate the strengths or weaknesses of particular opinions authored by the judge. I can say that I dealt with her over a period of six years on difficult and contentious issues relating to judicial ethics, and I always found her to be anything but reactionary or close minded.

      All the best.

      RGK

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  23. I have really enjoyed reading this conversation between Mr. Hopwood and the Honorable Judge Kopf. I don’t ever remember hearing of such a conversation between a judge and someone sentenced by the judge. I hope that someday Hopwood has a chance to argue a case before Judge Kopf! I am curious though whether Hopwood’s conviction will preclude him from sitting for the bar of his choice and his plans for crossing that bridge. Although this story makes the work of many of us attorneys out there seem quite dull in comparison – it is nonetheless quite inspiring and I wish you both well in your respective careers and lives.

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    • Kenan,

      I had this debate before with someone. I think I won by explaining that doctors regard the gut as one thing and the medical dictionaries are beginning to use the word “viscera” to refer to the gut in a singular sense. But, what the hell do I know. Thanks for taking the time to write.

      All the best.

      RGK

  27. Judging others, especially when the judgment is – by the nature of the job – intended to be somewhat catastrophic to the judged, is a difficult proposition. Dealing with the knowledge that one’s judgments will be imperfect is a challenge. However, there are degrees of imperfection, and one of the ones I’ve seen that seems to be particularly dark is also avoidable by a judge who continues to take responsibility for staying impartial and hewing to the facts of a case.

    For example, the sentencing I enjoyed at the hands of a zealous federal judge was harsher than a more careful judge would have chosen, for the simple reason that the judge in question conflated fact with his conjectures, hypothesized at will about the inner thinking of the accused, tangled together accounts from different cases, made accusations from the bench, and had the hubris to – as far as I or others I talked to sentenced by this judge could determine – simply assume he was correct on all counts, and sentence accordingly. Other sentencees I met revealed that he also tends to increase sentences based on stigmatizing innocent events from the victim’s distant past, such as business failures during recessions. His victims tended to be shell-shocked at sentencing, even passing out in the courtroom. His deliberate disregard for the reliability of fact versus conjecture is not only something an intelligent person should be able to recognize and curb internally when it happens, but something that when not curbed leaves its victims bitter and disillusioned, increases the burden on an already overburdened prison system, probably increases the rate of recidivism, and certainly reduces confidence in the judicial system. This same court also produced transcripts which omitted key facts – in my case one of my answers appears with the judge’s preceding (probably rhetorical) question omitted, critically changing the context of the answer. In other parts, individual words were omitted, in many cases words which were important, such as “not”, thus inverting the entire sense of the statement. The entire experience was one of a system rife with error and presumption. The only good aspect is that I think it likely that this judge is *not* representative of federal judges as a collective.

    These mistakes did not need to happen. Just as a person should be (I wish I could write “is” there) considered innocent until proven guilty (and ignoring that any system with dedicated prosecutors will eventually attempt to game the system, as I saw, but isn’t relevant here) a good judge should be able to recognize negative conjecture and omit it or at least temper it from his consideration during sentencing for similar reasons.

    In cases where a plea bargain takes place, where the judge is more likely to face the case as presented by the prosecutors, it has to be even harder to sift through such a biased presentation to determine the actual facts of a case. A judge should be able to mitigate the prosecutorial bias somewhat, but this is a difficult proposition. It doesn’t help that in trial cases some prosecutors will choose to abandon ethics entirely and try anything to get a conviction – including gaming the jury – pushing the entire burden of rationality and critical thinking onto the defense and onto the judge.

    I was glad to hear of the interchange between the judge and sentenced in this case, because I’ve had the feeling for some time that the lack of feedback from sentenced to judges contributes to a tendency for judges long exposed to trials to see everyone through stained glasses, to too easily accept negative interpretations and conjecture, and to fundamentally forget that they are wielding power over not only their fellow man, but in some cases over nobler fellow men, camouflaged innocents, and those the system has arbitrarily selected for persecution. Without feedback from the sentenced, it seems difficult for a judge to keep his perspective calibrated to the likely guilt of the population at large, rather than to the likely guilt of those brought before the court. A court with a 97% conviction rate too readily assumes the guilt of any one person brought before it, convicts more than it should based on that presumption, and slants the numbers even further.

    And, as the story of sentencing instincts points out, a judge will occasionally be shocked by the feedback. A good judge will question the sentencing, and potentially recalibrate his view of future defendants to a more cautious setting. A bad judge will simply give the credit to the onerous sentence, and might even decide to pursue harsher sentencing.

    RJK, I applaud you for presenting this thread, and for not so much questioning your own instincts – a healthy exercise in itself – but also for the open discussion about the difficulties involved and doing so in a forum other judges might read and thereby be reminded of the same issue. There is a delicate tension, I suspect between sentencing *only* based upon fact, and trying to make the sentence more appropriate by including some less certain information. I have seen the latter seriously abused, but that doesn’t mean it may not have its place, just to a lesser degree than what I’ve experienced. I think the hardest part of being good judge might be both remembering to question oneself and everything presented as “fact”, and yet not go mad from it.

    Kudos to Shon, too, for so many obvious reasons.

    • Alexander,

      You observe that:

      There is a delicate tension, I suspect between sentencing *only* based upon fact, and trying to make the sentence more appropriate by including some less certain information. . . . I think the hardest part of being good judge might be both remembering to question oneself and everything presented as “fact”, and yet not go mad from it.

      Brilliant!

      Thanks very much for your truly insightful comment.

      All the best.

      RGK

      • Thanks RGK (my apologies for the typo “RJK” earlier). Your thoughtful writing has been an appreciated contrast to my experience.

        I’m curious … Does the scholastic training for a career as a judge delve into the philosophical and ethical conflicts involved – particularly internal ones – in a way you’d now, looking back, consider sufficient, or are judges expected to cope with these issues only as they discover them in practice? It wouldn’t surprise me if there were a counseling support network for judges, considering what one must go through, but I’ve never actually heard of one.

        • Alexander,

          What an interesting series of questions.Here are a few quick thoughts:

          1. Unlike our European counterparts, there is no scholastic training for judges in the US regarding the philosophical and ethical conflicts you write about or, for that matter,judging more generally.
          2. In college, I was very interested in classical political thought. Think Plato to Hobbes for example. That study helped when I later became a judge.
          3.Without getting too personal, I have also had some individual counseling beginning with the sudden death of my first wife at 40. That therapy helped too.
          4. In my law practice, I had the great good fortune to represent as clients or employ as experts a number of PhD clinical psychologists. I learned a lot from them.
          5.I know of no counseling program designed specially for judges. But I do have a thought on the subject. Relatively short term cognitive behavioral therapy of the same type used for soldiers suffering PTSD might be of great assistance for some judges who suffer from anxiety and depression. That type of therapy avoids navel gazing, and concentrates on practical tactics for dealing with the inner conflicts you write about and the resulting anxiety and depression that frequently arises.
          6.Finally, many extraordinarily good judges seem to have a natural balance and are not troubled. Those judges (and there are many) simply don’t need assistance. As you might imagine, it is very hard to generalize.

          All the best.

          RGK

  28. I appreciate the honest self-evaluation of your earlier sentencing decision. However, potential steotyping or over reaction aside, how are we to know that your sentence and his experience as a result were not instrumental in us eventual rehabilitation. To the degelree that this case reminds each of us in the redemtive potential of any individual, it is useful. To the dgree that it causes each of us to examine the basis of our decisions, it is useful. To the degree that it engages us in selfrecrimination, it is not so useful. Thanks for being willing to open yourself and your decisions to constructive role in of our individual role in juging others.

    • David,

      All good points. Your cautions are all good ones, and I should keep them in mind.

      Thanks very much.

      All the best.

      RGK

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  36. Shon Hopwood’s story is extraordinary and exceptional. I read his book and his ability to get a case heard by the Supreme Court is rare even for the best lawyers. He learned from his mistakes in prison but he also is obviously very intelligent. Not everyone in prison has his skills. As he points out, he also had a lot of help from God, his family and Seth Waxman. The larger question is what are we doing as a society to prepare prisoners to lead productive lives when they leave prison? Are they learning skills useful only on antiquated prison equipment? Lengthy prison sentences for minor crimes do nothing to rehabilitate someone who comes out of prison after 20 years. It’s too late and life has passed him by. Prisoners need to learn useful trades — Shon is the rare case. He deserves all due credit, but there are very few Shons in prison.

    • J.E.,

      While Shon is a rarity, there are many more Bens, posted about here. Ben proves that more ordinary prisoners can change if their will is strong enough and their sentences are not too long. Changing prisons to a rehabilitative model is not likely to happen during the rest of my lifetime and beyond. So, the realist in me says deal with what is,as depressing as that may be.

      All the best.

      RGK

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