Congress is herewith warned

I just received notice that the Federal Public Defender for the District of Nebraska furloughed his staff and closed his office on Friday, April 19, 2013 and he plans to furlough and close his office on 10 additional days.  Here is the missive received today from our Clerk’s office:



The Nebraska Judicial Council directs all courtroom deputies and judicial assistants to avoid scheduling any trial and hearings involving the Nebraska Federal Public Defender’s Office on the following dates1:
May 3 May 17 May 24 June 14 June 28 July 5 July 19 August 2 August 16 August 30
The Nebraska Federal Public Defender’s Office staff will be furloughed on these dates, and the Defender’s Omaha and Lincoln offices will be closed. In the event the U.S. Attorney’s Office is required to furlough its staff, the same date(s) will be used.

1.  The only exception to this directive is when the assigned judge specifically requires the hearing or trial to be held.

While I intend to honor this directive, I am also contemplating the dismissal of a certain percentage of criminal cases assigned to the FPD.   If I dismiss a bunch of immigration cases, where a short prison sentence would otherwise be imposed and the defendants will be deported anyway, perhaps I can assist the FPD in meeting his statutory and constitutional obligations.  I have not finally decided on this course of action, but I am seriously contemplating it.

Congress is therefore on notice that its failure to fund the judiciary, and most particularly the Federal Public Defenders and Criminal Justice Act counsel, may result in the guilty going unpunished.  If a banana republic is what members of Congress want, I may help them get it.


It’s a fact: Federal district judges are carpenters not politicians

Photo credit:  Phil and Pam's photostream per Creative Commons License.

Photo credit: Phil and Pam’s photostream per Creative Commons License.

Please forgive me for appearing to beat the hell out of dead horse, but I return to The Behavior of Federal Judges.   In this post, I want to concentrate on the full title of the book–that is, The Behavior of Federal Judges, A Theoretical & Empirical Study of Rational Choice.  In particular, I want to focus on “rational choice” and district judges.

Epstein, Landes and Posner found that federal district judges as a group tend to apply legalistic reasoning to resolve cases rather than relying upon their own ideological preferences.  While this is good news for folks like me who view the proper judicial role as weak, one wonders why federal district judges, unlike say Supreme Court Justices, tend not to be ideological in their decision-making.

As the full title of their book specifies, the authors assert that federal district judges are rational actors.  Employing an economic model, the authors’ premise is that federal district judges avoid effort that is wasteful or unproductive (effort aversion) and federal district judges avoid effort that results in reversal (reversal aversion).  Since most cases in the federal district courts are “easy”–meaning that they can be resolved by application of rules and precedents–federal district judges resort to conventional legal reasoning even when that reasoning produces results inconsistent with the judge’s personal ideological preferences.   Federal district judges do so because the alternative–going outside the norm of conventional legal reasoning–is wasteful.  That is, the federal district judge  will have to work hard to make an ideological point not supported by conventional legal reasoning, and that work will ultimately be unsuccessful–a wasted effort.  The data collected and analyzed by the authors strongly supports their ultimate conclusion that federal district judges are not politicians in black robes.*

Epstein, Landes and Posner have found that most of the time most federal district judges apply rules and precedents that do not necessarily coincide with their personal views.  This group of judges act more like carpenters than politicians.   This data driven conclusion is enormously comforting for those who worry about the proper role of the federal judiciary in a democratic society.


*One can accept the data discussed by the authors and the statistical analysis conducted by them without accepting or fully accepting their labor model as an explanation.

30 days in jail for taking a cell phone photo of sentencing in federal court? Damn right!

Over at SL&P there is a discussion about the propriety of a federal judge sentencing a kid to 30 days in jail for using his cell phone in the courtroom.  The cell phone user took a photo of his friend during a sentencing hearing.  The cell phone photographer had a criminal record.  Some commentators wonder about the First Amendment and that sort of thing.

Why would a federal district judge throw someone in jail for using his or her cellphone to take a photo during sentencing?  Here’s a clue:  As I write this post,  there is a concerted and nationwide effort by “shot callers” in the federal prisons to identify defendants who cooperate with the government.  Being identified as a snitch in federal prison puts your life at risk.  This is a much bigger problem than those on the outside might imagine.

Welcome to the reality of federal sentencing.


District judges as surfer dudes (and rational actors?)

I return to The Behavior of Federal Judges which I have lauded and discussed in earlier posts. The authors (Epstein, Landes and Posner) use a labor-market model that assumes judicial actors make rational choices.

The authors consider judges–and specifically district judges–just like other economic actors. That is, federal district judges are self-interested.  They are motivated by pecuniary aspects of their work as well as non-pecuniary aspects of their work.

One can apply a rational choice model to all sorts of vocations and avocations.  Remember, rational actors in the labor market are motivated by non-pecuniary aspects of their work, like opportunities for leisure, and not merely pecuniary incentives.

So, just for fun, let’s try to apply rational choice theory to federal district judges who surf but only on weekends.

You first need to know what the judicial-surfer actually does before you can apply rational choice analysis.  Once you know that, you can begin to question whether a rational judicial-surfer would engage in the activity.

Consider the following:

Photo credit:  By Space & Light Photostream (Thierry Gregorius) per Creative Commons License.

Knowing the foregoing, would our rational judicial-surfer surf?   In this post, it is best to leave that question unanswered.

Later, I will write about psychic satisfaction and how that fits (or does not fit) into a rational choice model of the behavior of federal district judges.  For now, surf’s up!


Photo credit: By Space & Light Photostream (Thierry Gregorius) per Creative Commons License.

Statement on Impact of Sequestration on Judiciary, Defender Funding

In case anyone is not convinced of the devastating impact of sequestration on the judiciary and particularly to federal public defenders, please read the following statement that I just received via e-mail from the Administrative Office of the United States Courts:


Statement of Chief Judge William B. Traxler, Jr., Chairman of the Executive Committee of the Judicial Conference of the United States.

The Executive Committee of the Judicial Conference is responsible for developing a spending plan for the federal Judiciary’s annual Congressional appropriation. This process involves significant input from Conference committees, and under the best of circumstances, is a difficult and complex task.

The current fiscal year presents unparalleled challenges. Budget sequestration has reduced the Judiciary’s overall funding by nearly $350 million from the level provided in Fiscal Year 2012. The impact of sequestration on the Judiciary is particularly harsh because the courts have no control over their workload. They must respond to all cases that are filed, whether they are by individuals, businesses, or the government.

In February 2013, the Executive Committee implemented a series of emergency measures that were intended to mitigate the impact of sequestration to the best extent possible. Nevertheless, significant shortfalls remain.

Funds have been reduced for probation and pretrial staffing, which means less deterrence, detection, and supervision of released felons from prison. Related funding for drug testing, drug treatment and mental health treatment were cut by 20 percent. Money for security systems and equipment has been cut 25 percent and court security officer hours have been reduced. Cuts in court staffing and hours threaten to impact public access and slow case processing. National information technology upgrades to improve infrastructure and financial management have been delayed. Sequestration is impacting federal court operations and programs throughout the country, including a $51 million shortfall in the FY 2013 funds in the Defender Services account.

The Judiciary is committed to doing its part to reduce the fiscal deficit our country faces. However, a significant problem arises when budget cuts impact our responsibilities under the Constitution. This happens when we cannot afford to fulfill the Sixth Amendment right to representation for indigents charged with crimes. The predictable result is that criminal prosecutions will slow and our legal system will not operate as efficiently. This will cost us all in many different ways.

With regard to the Defender account shortfall, at its April 16, 2013, meeting the Executive Committee examined all aspects of this account, scrubbed expenses where possible, and approved a final spending plan. After lengthy discussion, the Committee determined to allocate the available funds in a manner that, without further impacting payments to private attorneys, will at least limit the number of days that any defender organization staff must be furloughed. The result is that some federal defender offices will still be forced to furlough their employees up to 15 days. The Committee also approved deferral of payments to private panel attorneys for the last 15 business days of the fiscal year.

The defender program has no flexibility to absorb cuts of this magnitude without impacting payments to private counsel appointed under the Criminal Justice Act and Federal Defender Organizations, which pay for government lawyers to provide counsel to eligible defendants. Federal defender offices already have fired and furloughed staff, as well as drastically cut essential services. Criminal prosecutions have been delayed because defender organizations do not have the staff necessary to continue their representation of the defendant or the funds to pay for experts or other cases costs.
The Executive Committee’s allocation of funds is not a solution to the $51 million shortfall. It represents a conscientious effort to mitigate the adverse impact on both personnel and services. It also means that millions of dollars in expenses in this account will be shifted to FY 2014, even though they were not part of the Judicial Branch budget submission to Congress. This level of funding is unsustainable without relief from Congress.

The Judiciary will soon ask the Office of Management and Budget to transmit an FY 2013 emergency supplemental funding request to Congress to help ameliorate the impact of the sequestration cuts to defender services, probation and pretrial services, court staffing, and court security.*

In his 2012 Year-End Report on the Federal Judiciary, the Chief Justice said:

“A significant and prolonged shortfall in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”

I share this grave concern.


* Emphasis added by RGK

Senate Republicans, the confirmation of federal district judges and Sun Tzu’s first principle of war

In the Art of War, Sun Tzu’s first principle is this: “He will win who knows when to fight and when not to fight.”  The Senate Republicans have forgotten this maxim when it comes to the confirmation process for nominees to the federal district court bench.

With the publication of  The Behavior of Federal Judges  A Theoretical and Empirical Study of Rational Choice (the subject of earlier posts), there is now strong empirical proof that federal district judges as a group do not perform as politicians in black robes.  The authors of the Behavior of Federal Judges, none of whom are “liberals,” conclude that for several reasons the decisions of federal district judges are not much influenced by political ideology.

If the authors are correct (and it is difficult to argue against hard data), why have Senate Republican taken to blocking or slow-walking the confirmation of federal district judges?  From an ideological perspective, Senate Republicans have little to fear if a Democratic district court nominee is confirmed.  From a raw political perspective, it is difficult to see how the confirmation of a district judge matters much to the base.  On the other hand, the less intransigent Republicans are seen to be as a general matter, the better off they would seem to be when it comes to nominees that matter.

Let’s do a thought experiment.  If the Senate Republicans were to confirm district court nominees just as fast as Senator Patrick Leahy wanted, would those same Senate Republicans be in a stronger position politically to raise hell with circuit court nominees or, heaven forbid, nominees to the Supreme Court?*  In my view, to ask the question is to answer it.

Sun Tzu’s first principle of war is not debatable.  Senate Republicans** ignore it at their peril.


*From a normative perspective, my view of a proper confirmation process is rather more elevated.  But, the process as it exists now is broken, and I hold out no hope that it will be fixed anytime soon.  This post makes the (sordid?) “comparative advantage” argument that for district judges, there are good and practical political reasons not to fight.

**When the situation is reversed, and it will be, the same holds true for the Democrats.

Touching the third rails of judicial politics

J Brazito's photostream per Creative Commons License.

J Brazito’s photostream per Creative Commons License.

With the very real budget crisis facing the federal district courts, and the nuclear impact on key players like federal public defenders, it is worth at least mentioning two savings that could be easily achieved without any harm to the functioning of the federal district courts.  However, to even speak of these two areas is to touch the third rails of judicial politics.

Electrified Rail One

We don’t need court reporters.  Digital audio recording can easily replace court reporters.   Various studies including a pilot project in a big federal district court and in a relatively small district court prove that digital audio recording could replace court reporters with no loss in accuracy while resulting in significantly lower cost and much greater transparency.  There will be a legion of naysayers, but any honest look at the situation results in only one rational outcome:  the federal district courts should move to eliminate court reporters (by attrition).

Electrified Rail Two

At the district level, did you know that there are two clerks of court?  One serves the Article III district judges.  The other serves the Article I bankruptcy judges.  Both have their own staffs—from docket clerks, to IT staffs, to courtroom deputies, to administrative service staffs.  If this duplication ever made sense, it makes none now.  The federal district courts should move to consolidate the clerks of the district courts and the clerks of the bankruptcy courts.

I just touched the rails.  I didn’t die.


Genghis Khan and sentencing

Photo credit:  frans 16611"s photostream per Creative Commons license.

Photo credit: frans 16611’s photostream per Creative Commons license.

The authors of The Behavior of Federal Judges  A Theoretical and Empirical Study of Rational Choice, discussed in the last post, looked at the important question of the behavior of federal district judges when they sentence people.  Among other things, the authors concluded that the political party of the President who nominated the judge was a good proxy for judicial ideology.  The authors then looked to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University to provide data about the sentencing decisions of individual judges.  After that, the authors matched up sentencing decisions by individual judges and the party affiliation of the President who nominated the judge.  The authors then ran a statistical analysis (once again using TRAC resources) to determine if there were differences in sentence lengths between judges nominated by Republican Presidents and judges nominated by Democratic Presidents.  Among other  things, the authors found that “there is evidence of ideological influence, with judges appointed by Republican Presidents generally imposing heavier sentences when other influences are corrected for.  The ideological influence is modest, however, . . . .”

For now, I intend only to highlight four things.  I hope to stay out of the weeds.  Here goes.

Point One

Federal courts have a lot of sentencing data, but there is a big problem collecting the data and putting into a useable form.  Because the TRAC data contains identifying information for individual judges, it is a unique and valuable resource.  At present, there is no other such information for the entire federal judiciary that is readily available.  The effort it took to accumulate this data and then put it into a useable form was truly gargantuan.  I laud TRAC for its efforts.

Point Two

There are problems with the TRAC information.  See Tracking TRAC’s New Sentencing Data, 25 Federal Sentencing Reporter No. 1 (October 2012).  Many of those problems are, however, vastly overblown as evidenced by the fact that attacks on TRAC are generated largely by defense lawyers.  They have a motive to trash anything that suggests that judicial discretion at sentencing is a bad thing.

The foregoing said, real problems persist.  In my view, the most significant problems with TRAC reports are these:  (1)  one has to pay for the TRAC data and the cost is not insubstantial;  (2) a user agreement must be signed that limits how the user may use the TRAC reports; (3) the TRAC reports do not separately address departure and variance motions that frequently drive sentencing outcomes.

There is a better way.  The United Sentencing Commission has data identifying each federal district judge by name and it has specific data for each sentence imposed by that judge.  In short, the Sentencing Commission data is more refined than the TRAC data.  Unfortunately, the Sentencing Commission will not normally release this data.  The only way to obtain the data is for the chief judge of the district to request the release of the data or for each identified judge to consent to the release of the data.  Since that data was generated by a judge publicly sentencing a defendant, there is no good reason not to make that data freely available to anyone who wants it.

To date, only the District of Nebraska (my district) has made that data freely accessible to the public.  See  United States District Court District of Nebraska, Judges’ Sentencing Data.  Among other things, the Sentencing Commission data for the judges of the District of Nebraska shows that for “drug cases, there appears to be a marked difference between sentences imposed in Lincoln (higher) and sentences imposed in Omaha (lower).”   Richard G. Kopf, Judge-Specific Sentencing Data for the District of Nebraska, 25 Federal Sentencing Reporter No. 1, p. 51 (2012).*  Why an analysis of the sentencing practices of judges in two courthouses no more than 60 miles apart reflects big differences in sentence outcomes is a grave cause for concern.

Point Three

It is critically important to remember that the authors of The Behavior of Federal Judges were looking at the data from a national perspective.  Thus, whether ideological differences matter more than modestly in individual districts does not appear to have been clearly addressed.

If you are a defendant, the existence of only modest ideological influences, when derived from an average of all the district judges in the nation, is not comforting.  In the district where the sentence will be imposed, a defendant wants to know whether he has drawn a Republican Genghis Khan.

The following chart (showing five years of data ending in September 2012) obtained from TRAC (for all sentence types) illustrates just how widely divergent sentence outcomes can be in the same district:


(Although I have long ago shed my affinity for the Republican party, it appears that I am, nevertheless, the District of Nebraska’s Genghis Khan.)

Point Four

Whether one uses the TRAC data or data from the Sentencing Commission, when it comes to sending people to prison it is important to concentrate on what is going on in each district and in each courthouse within each district.  Given the broad and national scope of their endeavor, it is perfectly understandable why the authors of The Behavior of Federal Judges did not drill down to the district level.  For federal sentencing judges, we lack any similar excuse.


*The Federal Public Defender lobby suggests that the Nebraska disparity can be explained by differences in the use of Rule 35(b) sentence reduction motions that come after initial sentencing–Lincoln prosecutors use them more and Omaha prosecutors use them less, so say the FPDs.  However, my analysis of the data (cases numbers, section 5K1.1 motions, and Rule 35(b) motions), which I have shared with our FPD, suggests that is highly unlikely that any such difference is substantial enough to explain away the disparity.   So far, I have heard no rebuttal to my analysis.  As I said earlier, for this post, I want to stay out of the weeds.  So, I will go no further on this point.

Does ideology matter when district judges sentence?

Anyone who is keen to study what judges actually do must read a new empirical analysis by giants in their respective fields of political science, economics and law. See Lee Epstein, William M. Landes and Richard A. Posner, The Behavior of Federal Judges  A Theoretical and Empirical Study of Rational Choice, Harvard University Press (January 2013).* The study looks at the behavior of federal district judges, circuit judges and Justices of the Supreme Court.

As pertinent to this blog, The Behavior of Federal Judges contains a systematic statistical analysis of much of the existing data that has been collected regarding the activities of district judges. The effort is groundbreaking. As the authors point out, the behavior of district judges has largely been ignored.  In particular, there has been little empirical (statistical) analysis of what district judges actually do.

I will have more about this book in later posts as it regards district judges, but for now I want to highlight the authors’ analysis of sentencing in the district courts.  Here is the essence of the authors’ conclusions regarding sentencing:

To summarize our analysis of sentencing, there is evidence of ideological influence, with judges appointed by Republican Presidents generally imposing heavier sentences when other influences are corrected for. The ideological influence is modest, however, consistent with the overall result of the analysis in this chapter that ideology plays only a small role at the district court level, even though district judges have considerable discretionary authority.

Derived from their statistical analysis, here are the numbers that the authors provide to support the foregoing conclusion:

Differences between Rs and Ds persist when district effects and the other independent variables are held constant, although the differences are small. On average Rs can be expected to sentence defendants to 6.5 more months in prison than Ds in organized-crime drug cases (a 6.6 percent increase), 4.4 months in other drug cases (4.8 percent), 3.5 months in weapons cases (6.4 percent), and 1.1 months in immigration cases (17.7 percent).

While the ideology of the district judge may matter only modestly when viewed from a national perspective, if a Court of Appeals is “politically” homogeneous, then one can expect large differences in how district judges sentence in the circuit where the members of the court of appeals are simpatico as compared with how district judges sentence in a circuit where the members of the court of appeals lacks political homogeneity.  Thus, consider this fascinating and striking comparison between the Eighth Circuit (where I hang out) and the Ninth Circuit:

The results are consistent with our previous findings. In three of the four categories, the fraction of Rs in the court of appeals significantly lengthens prison sentences. In organized-crime drug cases, we predict that a district judge in the Eighth Circuit, where more than 80 percent of the [appellate] judges were Rs in the relevant period, would sentence a defendant to 25 more months (a 26 percent increase) than a district judge in the Ninth Circuit, where only 40 percent of the [appellate] judges were Rs. The difference in other drug cases is 19 months (a 22 percent increase), in weapons offenses 8 months (15 percent), and in immigration cases 4 months (65 percent).**

In the coming days, I will offer a critique of the data set used in the authors’ analysis of sentencing at the district court level. I will also suggest a way to address that data problem.  Additionally, I will focus on empirical questions pertaining to how district judges in the same district sentence–the question of intra-district disparity.  For now, however, it is enough to state that this book should be read by anyone who is serious about studying judicial behavior at the district court level.


*I have earlier written in this blog about my career law clerks and their incalculable value to me.  One of those clerks (Jim) tipped me off about this book after reading an excellent review. See Cass R. Sunstein, Moneyball for Judges, The Statistics of judicial behavior, New Republic (April 9, 2013).

** While it is not entirely clear, this analysis appears to be based upon sentences imposed after a trial rather than after a guilty plea.  I need to look into that question in more detail because it is very important.

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