Want ad: A judicial executioner to serve for a lifetime

Photo credit: jamesrdoe per Creative Commons license.

Photo credit: jamesrdoe per Creative Commons license.

Leave it to a plaintiff’s personal injury lawyer to speak the truth. Vince and I where talking right before I gave a luncheon speech to the Nebraska Association of Trial Attorneys. Since Vince is the Chairman of the Democratic Party in Nebraska, we were gossiping about who might replace Judge Bataillon, who has announced his intention to take senior status.

Near the end of the conversation, Vince said something insightful. It went roughly like this: “I hope whoever it is realizes what pain they will inflict and what pain they will observe as they sentence people.” He added, “It must do something to you.” Vince was right, and in spades.

Now, this is not a “poor me” story about federal trial judges. We are all big boys and girls with egos to match. But, let’s also be clear about something else. The candidate to replace Joe Bataillon, or any other federal judge, will be unprepared for the impact of criminal sentencing on the sentencing judge.

The federal sentencing regime is the one aspect of being a federal trial judge for which there is no comparable experience that a judicial candidate can draw upon for help. Trust me. I don’t care whether you were a prosecutor, criminal defense lawyer, civil practitioner, a judge from the state courts, or even a federal magistrate judge, when it comes to federal criminal sentencing, you’re unprepared.

The best way to think about it is to ask yourself this question: “Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?”  Those who covet a federal trial judgeship should think hard about this truth before pursuing the job.

I doubt they will. Instead, they will say to themselves, “I’m different. I am not weak. I am strong-minded.” Or, “I’m just doing what the law requires.” Or, “They did it to themselves. They deserve it.” Or, “Someone has to do it, and maybe I can improve things.” The rationalizations are endless.

But stripped of the BS that allows good people to do bad things, here is the essential truth: When sentencing people, federal trial judges literally and consciously destroy lives and most do so on a daily basis. So, I have a bit of advice for those who wish to replace Judge Bataillon. Be careful what you ask for. You have no idea what the hell you’re getting into.

RGK

21 responses

  1. Very well put. I often think, when leaving the bench after a sentencing, of the Internet Commenters that all seem to think a sentencing judge needs to know nothing beyond the statutory maximum. It looks so easy to them.

  2. Welcome advice for young law students such as myself who still have rose-tinted glasses about such things.

    If you have time, would you be willing to explain a little bit about how the sentencing guidelines work and how they constrain discretion?

    • Southern Law Student,

      Regarding the Guidelines, you ask: “If you have time, would you be willing to explain a little bit about how the sentencing guidelines work and how they constrain discretion?”

      Initially, think of a table where the vertical line has arabic numbers 1 through 43 and the horizontal line has roman numbers I through VI. The vertical line describes the offense of conviction and is called “offense level.” There is a whole book of rules that tells you how to calculate “offense level.” The horizontal line describes past criminal behavior and is called “criminal history.” The book of rules also tells you how to calculate criminal history. There are 258 separate cells to the table and each cell has a range of numbers that represent months in prison. For example, let’s assume that an offender has an offense level of 28 and criminal history category of VI. That means that sentence called for under the Guidelines is anywhere between 140 and 175 months.

      Under the current law, and using the above as an example, the judge starts with a sentence of somewhere between 140 and 175 months in prison. Then, the judge looks independently at the general goals of sentencing found in 18 USC § 3553(a), without giving any weight to the 140 to 175 month range computed under the Guidelines. After the judge has computed the Guideline range, and independently applied the section 3553(a) sentencing goals to the facts, the judge then selects a sentence.

      The Guidelines restrict discretion in two senses–practically and legally. First, the psychological concept of “anchoring”–where the mind prefers specifics rather than generalities when problem solving–comes into play. That is, when numbers are presented, those numbers tend to stick in the mind particularly when those numbers come from an expert body such as the Sentencing Commission. Practically speaking, then, the Guidelines tend to focus the judge’s mind on the suggested range thus inhibiting at a subconscious level the exercise of pure discretion. Secondly, as a matter of law, the further a judge strays from the Guidelines range without a good reason, preferably articulated in writing, the more likely it is that an appellate court will find the sentence improper. Thus, judges who desire to exercise their discretion to substantially vary from the Guidelines risk reversal unless they undertake the labor intensive task of writing an opinion. This standard and resulting extra work also tends to inhibit discretion.

      Hope this helps.

      All the best.

      RGK

      • A question on this: judges risk reversal–what’s the downside of being reversed? It seems that the worst that could happen is the time spent doing over. Given all the slack time in a judge’s day, that’s not cheap, but there are principles at stake, too. I assume there’s more to it than that.

        On the other hand, it’s a straightforward programming exercise to add a third dimension to your table that applies the 3553(a) sentencing goals to the Guideline ranges, and not too much more trouble to add a fourth dimension to allow for “proper” weights to be added to those goals, as determined by (just a skosh more programming) a GUI that lets you plug in those pesky facts.

        Thus, we have a piece of software that wants only someone to enter the facts (plainly, your Court Deputy, or clerks, are over-trained for the task); you now can take full retirement.

        TIFIFY.

        Eric Hines

        • Eric,

          The “do over” time is worth a lot. All we trial judges have to “sell” is time, and, as efficient managers, we prefer not to waste our “inventory.” Beside, who likes to be told their wrong. More importantly, and speaking of principles, it is an overarching principle of law that judicial inferiors (trial judges) must faithfully adhere to the rulings of judicial superiors (appellate judges). So, if a judge isn’t entirely convinced that a large variance is justified, the judge will not exercise his or her discretion to vary substantially from the Guidelines. Put simply, caution is the handmaiden of judicial discretion, properly understood. In other words, the discretion that judges enjoy when sentencing is not unfettered.

          All the best.

          RGK

          PS Quit trying to get me to retire!

  3. Thanks for the insightful post.

    I’m not sure if you’ve read the sentencing memo from Weinstein, the subsequent remand from the 2d Circuit, or Judge Weinstein’s response, but I’ve been thinking about sentencing a lot lately. In that case, a judge was pushing back against what he considered to be morally repulsive, counterproductive sentencing requirements. He was soundly smacked down by the higher court.

    When I applied to law school, I wanted to be a prosecutor so that I could offer people reasonable plea deals and ask for reasonable sentences (so no one would get sent to prison for years for drug possession or distribution). Once I started learning about how things actually worked, I realized that being a “good” prosecutor is likely impossible due to the nature of the law and the pressures inherent in the job. Now I am a defense attorney who serves the indigent and I aspire to be a judge someday. Little by little, however, I am coming to the conclusion that one cannot be a “good” judge either due to the shackles that are placed on you once you reach that position (whether it be due to the nature of the law, the social constraints of being a judge, or other reasons).

    I do not intend to disparage anyone who is a prosecutor or a judge. These are merely my personal thoughts, and I am well aware that most people don’t share my views.

    • Mathew,

      Whether you can be a “good” judge under the present federal sentencing laws is a question for which I do not have an honest answer. I can say there are certain sentences that I would not impose even if the law required me to do so. In that case, I would resign. I have not been confronted with that situation yet. I have always been able to find a rationale for even very harsh sentences. That’s all I can say.

      Thanks for commenting. All the best.

      RGK

      • I’m just curious – if you have come across some actual federal case (where you weren’t the sentencing judge, but the law would not have allowed the Judge to vary anyway), that you would consider to have breached your “rather resign” threshold. Where would you place the following examples (not chosen to make any larger points except that they are relatively well known and were certainly harsh enough to successfully get some post-trial relief ).

        1. The initial 80 year mandatory minimum for Chris Williams (http://reason.com/blog/2012/11/29/montana-medical-marijuana-grower-faces-8).

        2. Hamedah Hasan (initially life).

        3. Weldon Angelos (55 years).

        I have seen some Judges remark, when faced with egregious outliers, that the executive should correct it using the pardon power. I don’t think anybody says that with a straight face these days, though.

        • TF,

          I will only comment on one case. I know that one well, and I think it is illustrative.

          I sentenced Hamedah Hasan to her initial life sentence after writing a long opinion explaining why but also suggesting that the sentence was wrong. I then reduced her sentence when the Guidelines were first changed retroactively. In so doing, I reduced her sentence even more than allowed for by the change, but the Court of Appeals reversed, and in an en banc opinion, held that the the additional reduction for post-offense rehabilitation was not permissible under the statute. Due to later retroactive amendments under the crack Guidelines, Ms. Hasan was eventually released from prison on Feb. 7, 2012 after serving about 18 years.

          I felt horrible about the sentence I had imposed. As a result, I participated in activities to convince the President to commute her sentence. I wrote a letter to the DOJ pardon attorney and the President. I participated in Rev. Melissa Mummert’s film entitled A Perversion of Justice featuring Ms. Hasan. I asked a lawyer friend from a big firm that was politically connected to help with the commutation application. In short, and as I have remarked in other contexts, Ms. Hasan’s case caused me to seriously consider either resigning or simply refusing to sentence her according to the law.

          Now, to be objective, Ms. Hasan was offered a plea that would have allowed me to sentence her to as little as 10 years in prison. She was represented by a good lawyer, known for her strong feminist views, who urged Ms. Hasan to take the deal. But Ms. Hasan was a very angry young woman. Ms. Hasan refused and elected to stand trial with relatives. Ms. Hasan was guilty as hell. She was not a victim and she was not innocent. She was involved in a boatload of crack (multiple kilos) while serving as the money handler for the small group that came from the west coast to Omaha to distribute their poison to the poor. In my opinion, and even though she had no criminal history and was a mother with children, she should have spent about 12 years in prison for her crime. But a life sentence, or even the “reduced” 324 month sentence (that was later reduced even further by retroactive amendments), was nuts.

          I hope this is responsive. All the best.

          RGK

          • Judge Kopf,

            Thank you for your detailed response. I was not aware that you were the sentencing judge in the Hasan case. The link you provided in your comment for your initial opinion – is probably not the right one but I will find it and take a look when I get some time. Thanks.

            • Tom,

              The link is correct. Stephanie Lomax, a/k/a Stephanie McMurray, was the name Ms. Hasan previously used. So, don’t be confused. Of course, you can find other orders I wrote by looking at Pacer and calling up No. 8:CR92-00012 for the District of Nebraska. Additionally, here is the first “sentence reduction” opinion I wrote regarding Ms. Hasan.

              All the best.

              RGK

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  6. And if judges who shy from following the law give leniency to criminals, where then is the justice for the victims of crime? One imagines a murder defense: “Yes, I shot the scumbag drug dealer who sold my daughter crack. If the ‘compassionate, enlightened oh-so-liberal’ judge who gave this animal a pass the last time he was caught had done his job, my daughter would be alive.” If you want lower sentencing guidelines, go the Congress — you know, where the laws are supposed to be made.

    • Joe,

      With respect, please don’t engage in that cant. Among other things, it is boring. A pitch for judicial leniency was not the purpose of the post, and you know it.

      All the best.

      RGK

      • As trial lawyers, we know that boring the judge is second only to lying to him as an offense. Let me try again. So, the combination of “extraordinarily harsh national criminal laws” and a mandatory sentencing regime means that the weight of the world falls on federal district judges in a unique way. Not having had the privilege (or burden) to sit on such a bench I must defer to your report of the experience. I wonder whether anyone else who holds lives in their hands daily feels the same? General officers in combat zones? Heart surgeons? Nonetheless, stipulated as to the personal burden. But really, is that your primary point? Aren’t you saying a set of “extraordinarily fair national criminal laws” would be easier on you? That is tautological. Who decides what is fair or harsh? (I ask that as someone who thinks the prohibition of adult ingestion of intoxicants is both offensive to the notion of liberty and an abject policy failure). Under our system the answer is, of course, the legislature, subject to 8th Amendment considerations.

        The destruction of lives is a weighty thing. That some criminals’ lives must be destroyed to deter and punish so other lives are not is an inevitable consequence of having a criminal justice system at all. I admit to having little or no sympathy for, to pull from one of your comment replies above, the Hamedah Hasans of the world. Unwed mother at 16, had another child n prison. Involved in a major criminal enterprise. Obviously stone ignorant. Yuck. I can feel the burden on society of this woman and her progeny resonating through the generations. I’m tempted to cite Buck v Bell. If the thoughts expressed in the preceding two sentences are grounds for excommunication, well, it’s your blog. But life is hard enough even for those of us lucky enough to have been born with some brains, some work ethic, some moral sense and to a family that loved us and provided for us. We need some defense against Hamedah and her ilk, not overly leavened by a charitable impulse to take her doubtless horrific background into account. Worse still is the culturally suicidal impulse to say Hamedah’s behavior is just peachy, and shame on you racist capitalistic war-mongering pigs for daring to criticize it.

        Twelve years was right. life or eighteen too much? I confess to being unable to parse the right result. I’ll say this. If I were in charge, and you could fashion sentences for the Hamedah’s of the world that, no matter how light or creative, would result in them not hurting the larger culture, I’d say go for it. Let me know when you figure it out.

        • Joe,

          I apologize for my tart response earlier. Sincerely.

          Regarding your most recent comment, I agree almost (but not quite) entirely with you. Let me elaborate:

          1. Regarding the alleged tautology, I think it is provable empirically that our federal criminal laws are extraordinarily harsh. This is largely because Congress refuses to give the Sentencing Commission, the body it set up, the full power to more carefully calibrate the Guidelines to rational and evidence based policies and practices.

          2. I can’t comment about what surgeons or army officers confront when they make decisions impacting the lives of others ’cause I ain’t never been one or the other. (Although, I once tried to convince a girl . . . Never mind.)

          3. I have argued elsewhere in the blog (see here, for example) that the tough federal sentencing laws have done a good job in protecting the public. By the way, no one who knows my sentencing history would ever accuse me of being a “liberal.”

          4. Regarding your final point about the selection of the “right” sentence, please don’t wait for me to give you the answer. I haven’t a clue. That’s what scares me shitless about the weak-kneed “advisory” Guidelines regime cobbled together by the Justices.

          5. Finally, and to restate, the main purpose of the post that started our engagement was to shock starry eyed judicial applicants for Judge Joe’s job into thinking about what the hell they are getting into. They think they know, but they don’t.

          Thanks, again, for your thoughtful comment. My apologies, again, for the vinegar in my earlier response. All the best.

          RGK

    • Anyone who observes the current and recent Congresses realizes the degree of fantasy involved in thinking that Congress is a solution in anything more than a theoretical sense.

      The problem of fixing Congress should be high on our societal radar screen because it really is the gateway to solving nearly all other federal, law-related problems.

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