Am I a conservative or am I an asshole?

Yesterday, with the Thanksgiving holiday almost upon us, I sentenced people to prison. One case involved a fellow convicted by a jury of schlepping a bunch of drugs. His criminal history score was VI. There was evidence that he had tried to tamper with witnesses. He was represented by a very good and dedicated lawyer. The offender has cancer, and there is absolutely no debate about that. There is nothing more the doctors can do for him. According to a respected specialist, there is a 2 out 3 chance that he will die within the year. His lawyer wanted me to vary downward to the statutory minimum of 240 months (20 years). Instead, I imposed a Guideline sentence, at the “low-end,” of 324 months in prison. I recommended that the defendant be placed at one of the Bureau of Prisons’ (BOP) Federal Medical Centers, but where he goes is up to the BOP. The BOP can release dying prisoners under a “compassionate release” statute, but that seldom happens. Had I imposed the statutory minimum sentence of 20 years, the BOP may have been more likely to release the fellow as he neared the end.

A reader of this blog, in another context, wondered whether I am a conservative or an asshole. He evidently does not understand the tyranny of the disjunctive.

RGK

36 responses

  1. Is there a difference? Based on long experience squabbling with the Teabaggers and Moronic Minority before them, I am convinced that there isn’t a lot of daylight between the two.

    As Justice Scalia reminds us the Constitution depends on a judiciary which is prepared to issue decisions “that go against the judges’ policy preferences,” Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143, 1176 (2011) (Scalia, J., dissenting), and I believe that a certain judge of our mutual acquaintance said essentially the same thing in his Standing Bear essay. Truth be told, the only reason we have sentencing guidelines is owing to the fact that whenever judges are invested with discretion, they invariably abuse it. Your discretion was limited and properly so, and you “colored within the lines.” You deserve props for that, as it is rare in judicial circles (see e.g., Gilardi v. HHS, No. 13-5069 (D.C. Cir. Nov. 1, 2013) (once again, Janice Rogers Brown has constitutionalized her personal preferences)). Not doing your job competently would make you an ass or a Scalia (as if there is a difference there!).

    If I were to find fault, it is that you did not–nobody does, but it is an essential element of a proper Seventh Amendment jury trial–advise the jurors that THEY had discretion to acquit for any reason or no reason at all. This is what happened in the Zenger trial, and it is something that juries could do to veto unjust and unwise laws.

  2. Instead of asshole or conservative, I prefer the descriptor “judge.” You are doing your job–implementing the law and following sentencing guidelines. Contracting cancer had very little to do with the crime the defendant committed and, while sad, does not make him any less culpable for his crime. Sick people can be assholes too.

    • Contracting cancer has to do with one of the three prongs I think matter most in establishing a just sentence though: severity of the crime, rehabilitation, and protection of society. I can’t speak to the case at hand since I don’t know the details (and a criminal history score of VI suggests there are a lot of details).

      1. Severity of the crime. Drug trafficking is severe, but frankly it’s rarely 20 years in prison severe. Heck, we often give people less than that for things like involuntary manslaughter or rape. I would say the severity of the offense on its own would warrant a downward deviation, but if it is part of a pattern of criminality maybe not (see: criminal history score disclaimer). Then again, if the severity of the offense alone warranted downward deviation, then the guidelines wouldn’t make much sense.

      2. Rehabilitation. Judge Kopf noted in his exchange with Shon Hopwood that generally any sentence exceeding about 5 years ceases to be rehabilitative. Since both the guidelines and the mandatory minimum exceed the rehabilitative period, there is no rehabilitative reason not to deviate downward.

      3. Protection of society. A dangerous offender may rightly be locked up longer than otherwise if he poses a danger to the public. This is where the cancer plays in. If the offender is unlikely to be able to physically pose much of a danger to anyone, then society needs less protection from him. In this particular case, I doubt it makes much difference, as the man will likely die much sooner than the end of his sentence or else be fully back to health by the time he gets out (though much older). It may factor in as much as the compassionate release is concerned though. I assume that the BOP is fairly careful about such releases posing a danger to society regardless.

      • Peter, all good comments. Severity of the crime is hard to comment on as, you rightly point out, we do not know the details. But the witness tampering is a particularly slimey aspect that also speaks to the need to protect society. Forgive the pop culture reference, but Walter White had cancer and he was a danger to society; the same logic may well be true about the defendant. Cancer does not necessarily make him harmless.

        I agree with your basic rehabilitative point and sentences lasting longer than 5 years, but if the defendant is unlikely to live beyond a year, then is rehabilitation even a realistic goal and should it be part of the sentencing rationale? I doubt he will have time to turn his life around the way Shon Hopwood has done. In fact, a five (or two) year sentence is essentially a “life sentence,” so that benchmark does not really fit well here.

        Ultimately, it seems that the judge’s only reason to give the defendant the 20 year minimum was his cancer diagnosis, and that strikes me as too much emphasis on the cancer.

        • Yes, I agree the witness tampering may be an issue, as well as to what extent he is running an operation such that his mere ability to communicate would be a danger. Questions to which I do not know the answer.

          I suppose a more clear-cut case where the danger to society factor would come into play would be a vehicular manslaughter via DWI where the defendant is quadriplegic due to the crash.

  3. Judge Kopf – this is the first post of yours that I have decidedly not liked. You have previously remarked about the difficulty of sentencing. This man will die in prison. I do not have, Judge Kopf, any moral high ground her, but the flippancy of your post under these circumstances is a little disappointing.

    • Dear Tom,

      I did not mean to be flippant. I meant to be both (brutally) factual and, frankly, introspective, if not self-critical. If I appeared to be flippant, that is my fault and I apologize.

      All the best.

      RGK

    • Dear Tom,

      Your comment deserves something more than my earlier reply.

      If my writing frequently seems brutal, that is because what I do is frequently brutal. I am so damned tired of listening to the uninformed speak about crime and punishment. Most have never seen the criminal justice system in the federal courts up close and personal. The offenders are not pretty, their offenses are not pretty and what we do to them is not pretty.

      The case that formed the basis for the post was, I hope, a good illustration. As I gather tomorrow with my loved ones to celebrate Thanksgiving, the fellow I sentenced will be deep in my thoughts. How in the hell could a good and humane person do what I did to that poor man? Well, folks, grow up!

      Long ago, I represented a meat packer. I remember the first time I ever went to a slaughterhouse. I will never forget that experience. I still eat meat, but I don’t kid myself about the brutality that was inflicted upon the poor, dumb, terrified animal that I consume. My post was intended to be a glimpse into a similar world, the one we call the federal criminal justice system. That is what legal realism is all about.

      I hope this makes sense to you. If not, perhaps I should stop writing this blog.

      All the best.

      RGK

      • Judge Kopf – thank you for your thoughtful comments. They make complete sense to me. Keep on blogging, it is a great source of information, humor and enjoyment. Regards,

      • It’s a little disturbing to see you compare what you do to slaughtering “poor, dumb, terrified animal[s]” so that others can eat them.

        But it’s your blog, and you are a conservative judge: if that’s how you see conservative judges, who am I to disagree?

        • Rick,

          I suppose I am a conservative judge, but a lot of conservatives would find many of my decisions to be far too liberal. No matter, I understand why you are disturbed by the comparison between packing plants and federal courtrooms. Conservative or not, that’s the way I see a good deal of what I do. In the end, the comparison was intended to be primarily descriptive rather than mostly normative.

          All the best.

          RGK

  4. Isn’t this a pending case — at least to the extent an appeal, a reversal, and a remand are still possible (the sentences were only pronounced yesterday, after all)? If so, how can you comment on it? You often seem to do that, and I don’t understand how you aren’t running afoul of the Code of Conduct for U.S. Judges. I enjoy the blog and find many of your observations interesting and even helpful. But I don’t see how you get away with it.

    • Dear Bankruptcy Judge,

      I have thought a lot about your concern generally and in regard to this post and one other. I must say, however, that I do not agree that I “often seem to” comment upon recent cases of mine. But that’s a quibble. So, let me briefly respond to your concern:

      (1) At the time of the post, the case had been concluded and no appeal was pending.

      (2) If an appeal is later taken, or a section 2255 motion is later filed, and the case comes back to me, I will withdraw from it should anything I have written become an issue. As a senior judge, and unlike an active district judge, I have a statutory right to turn down cases. Therefore, the requirement that I must be especially careful not to disqualify myself from impending cases is much reduced.

      All the best.

      RGK

      • Perhaps “sometimes” rather than “often” would have been more appropriate. Forgive my overstatement. As to the case in question, however:

        (1) No appeal may have been pending, but an appeal was still possible. To me, at least, that makes the case itself a pending one. My policy (for what that’s worth) is not to comment on any case until it is well and truly over, meaning all appellate avenues have been exhausted. I gather you would find that excessive.

        (2) Since you’re a senior judge, there’s certainly less of a concern about your withdrawing from a case. After all, you’re giving your services to the public for free. If you were an active judge, I think the matter would be quite different.

        Happy Thanksgiving. Among other things, I am thankful for thoughtful judges like you. Everyone should be.

        • Dear BK Judge,

          I appreciate your reply. I agree with point 1 in the sense that I skated close to the edge, but I hope I did not fall through the ice. Certainly, as an active judge, my calculation would have been far different.

          Additionally, and in the for “what it is worth category,” the post did not involve a substantive discussion of the law. Rather, I gave only a brief recitation of the facts and then my sentence. I could have easily made the post a hypothetical, but that would have obviated my desire for legal realism. I fancy myself a bit of a teacher, and I thought this fact pattern sadly but nicely illustrated the stark choices that federal sentencing judges frequently confront.

          I am thankful for bankruptcy judges including BAPs. If I had to do your work, I would have to think and that’s not fun.

          All the best.

          RGK

  5. Forgive my layman’s ignorance, but aren’t said court proceedings now a matter of public record? (A teachable moment for you, Judge K.)

    • Dear Always Interested and Often Amused,

      You are absolutely correct. Because I use digital audio, rather than a court reporter, to make a record, the digital audio of the proceedings (including every fact recited in my post) was uploaded to CM/ECF soon after I pronounced the sentence and it thus became available to anyone in the world.

      If you mean that the recitation of the facts in the post provided “a teachable moment,” I certainly hope so. Indeed, one of the prime purposes of this blog is to make what federal district judges really do more transparent.

      I sincerely appreciate your insightful comment. Thanks for taking the time to write.

      All the best.

      RGK

  6. Our class had us practice the federal sentencing guidelines. I’m impressed. It takes certain dedication to score a VI on a criminal history. I think you made the right decision about him.

    A similar situation came up in a book I read once. The character, Sam Vimes, is a policeman who is about to arrest a family friend of his wife, and she’s concerned about the family. This is what he says:

    “Every time I have to arrest some twit who thought he could get away with swindling or extortion or blackmail, well, I know that there is probably going to be a family in difficulties, you understand? I think about it. It preys on my mind. The trouble is, the idiots commit the crimes! . . . I can stretch the law for the greater good, but that’s the end of it.” Terry Pratchett, Snuff 355 (2011).

    • Dear Southern Law Student,

      For me, the important point is not whether I was right or wrong from a legal perspective. Indeed, nothing I wrote took a position on that question. What is important to me is the recognition of the stark choices that are frequently presented in federal criminal sentencings.

      All the best.

      RGK

      • Whoops! Law school does things like this to my brain. I should get back to studying for my finals.

        • Southern Law Student,

          Turkey makes law school finals tolerable. Eat some, preferably with someone you love.

          All the best.

          RGK

    • Dear Southern Law Student,

      From your experience in a law school class, you conclude that “[i]t takes certain dedication to score a VI on a criminal history.” Those who practice in federal courts routinely can tell you that it in reality, it’s not terribly difficult to accumulate such criminal history points. The question whether the individual (not the score of which you know nothing about how it accumulated) merits a 27-year-sentence is something you should focus on. This is someone’s life. A human being. And that’s one of the lessons of Judge Kopf’s post.

      • AA,
        Thanks for the reply. I work in the state system as an appellate law clerk, and while I don’t see the same types of crimes, I see similar things. I know that defendants are people just like I am, minus one choice that might have been their only option at the time. I am darn sure that whenever I write a brief against someone who has lost their legal fight that (a) I read every scrap of paper in that record and (b) I do my best to make sure a just result is reached. I don’t want to keep the wrong person behind bars, or let the wrong person go free, because I was sloppy or didn’t care about them. I have seen attorneys on both sides that treat human beings as cattle, and that attitude senselessly ruins lives.

        That’s never a good result.

  7. Sir,
    I have nothing constructive to offer, except to say that I appreciate the difficulty this causes you. Though your conscience might be flawed, that you are in possession of one remains a comfort.
    My best to you and yours on this holiday. I am thankful that, for all my faults, and all of our misfortunes, my lot has never professionally run into yours.
    V\R,
    Jon

    • Jonathan,

      Thank you for your warm thoughts.

      Regarding flaws, as my wonderful Chief Judge, Laurie Smith Camp, says: “In the words of Clint Eastwood in ‘Unforgiven,’– ‘We all have it coming.’”

      All the best.

      RGK

  8. Pingback: Responding To A Conservative and/or An Asshole | Simple Justice

  9. Writing from the uniformed and outsider position, there comes to thought an either/or dilemma. Is there an absolute, clear and none debatable sentence for the crime this man has committed? If there is such an absolutely clear law, a no-wiggle-room judgment, then you are neither a____e nor conservative. In that case, the law is the law is the law. Hence, judgment is absolute. However, also comes the question: is the law moral?
    Is not Les Miserables grounded in this? Granted in the current case, the p.i.q. has not the redeeming qualities that Jean Valjean demonstrated, but will this p.i.q. do so if allowed the chance? This is a haunting question. With your sentence, there is no chance of it unless he does so in prison (something to not be dismissed, I suppose).
    If your disjunctive is that it doesn’t matter which end you choose, as opposed to, it matters and I do not know which answer to choose, creates an untenable debate. You are the judge. For that, you must know which it is. At that point, all labels fail, as they do anyway! The position, the title, and the responsibility rest squarely upon your proverbial shoulders.
    Does the Law provide for mercy? I’m sure it has, in varying degrees given certain situations. But, in truth does it provide for mercy? Is the Law capable of objectifying and hence, qualifying grace within the law? Rhetorically, I answer. I hope it is when I am in the dock, but not when the villain is. Yet, still, I hope that Valjean is free!
    Some musings on nice evening after a family gathering for thanksgiving to add to what others have written but from a far side out. A happy thanksgiving time for you and yours. Blessings too.

  10. I’m curious. Did any of you “judges” ever study Lysander Spooner? If so, why did you go ahead and pursue your career?

    • Ed,

      I know a little bit about him. See here. For example, I know that Spooner was a lawyer (although he did not comply with state law when he began to practice law) and I know that Justices Scalia and Thomas have cited him in two cases involving the Second Amendment.

      Frankly, I think of him as an obscure 19th century crank. But, then again I think most libertarian philosophers are properly marginalized as cranks. Arguing, with fancier words, that “you aren’t the boss of me” does not strike me as particularly thoughtful.

      All the best.

      RGK

      • Then you must think that all the Framers were obscure cranks. Imagine the audacity of telling people that they will suffer no king but the law! As one of the self-appointed Kings of America, that may sound problematic to a federal Platonic Guardian– er, I mean, judge.

        Arguing that “this black robe make me the boss of you” doesn’t strike me as being as thoughtful as the worst of Spooner’s digressions.

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