More on Sensenbrenner

Bucky_BadgerDoug Berman at his wonderful blog criticized an idiotic comment by Congressman Sensenbrenner about judge shopping providing a good reason for keeping federal mandatory minimum sentences.  Doug then received numerous off-point comments that were more of the same crap that substitutes for reasoned debate these days.  In response, Doug wrote:

I am not at surprised — though I am deeply disappointed — that this thread of comments became mired in the usual partisan tripe rather than a serious discussion of the serious problems of experienced members of Congress displaying extraordinary ignorance concerning important matters of public policy in areas that are supposed to be their specialty.

Sensenbrenner is not only a senior member on the House Judiciary Committee, but also Chair of the Subcommittee on Crime, Terrorism and Homeland Security. And his comment is not a mere mis-statement of the latest USSC report or of the details of the guidelines or Booker, but rather suggests a profound misunderstand of the basic operation of the federal criminal justice system. I would be as if the Chair of the House Space subcommittee were to assert that we should not try to visit the moon again because we might get stuck in the cottage cheese that the moon is made of.

 I would hope that everyone who cares about reasoned and informed policy-making would criticize any out-to-lunch comment by any policy-maker. But perhaps this is just too much to ask in these partisan days.

Isn’t it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of “judge-shopping”? at comment Posted by: Doug B. | May 14, 2013 10:09:59 PM

I share Professor Berman’s depression.  Everyone who knows anything about the federal district courts understand that it is virtually impossible to judge-shop in the manner suggested by the Bucky Badger doppelgänger.  Everyone who knows anything about federal sentencing policy–from the Sentencing Commission on down–also knows that almost all mandatory minimum sentences radically distort and frustrate reasoned sentencing practices.  The current effort to address statutory minimums in Congress is really important and Doug’s effort to stimulate serious discussion on the subject was cheapened by the responses he received.

Good and smart people ought to act good and smart.  We have the Sensenbrenners of the world to provide us with the nasty and dumb.


5 responses

  1. I am a recent law school graduate so I lack any experience in this matter but I am under the impression that forum-shopping is more of an issue with civil cases then criminal cases. Aren’t criminal cases generally tried in the jurisdiction where the crime was committed?

  2. Hello . I am a recently retired District Judge who sat in Los Angeles. Although I have not yet chosen my next law-related position, I am intent on pursuing means of strengthening the federal judiciary. One of my concerns is that judges too often tend to be passive and even acquiescent in reacting–or not reacting–to the hostility or indifference that many members of Congress display to the legitimate functions and needs of the Third Branch. That is one reason I admire your blog. Your pronouncement today about Rep. Sensenbrenner’s nonsensical statement is a welcome development, and one that should be emulated when warranted. Good work!

  3. Dear Dan,

    Yes, criminal cases are tried in the federal district where the prosecution is brought. That is normally where the bulk of the criminal activity took place.

    More particularly, the reference to judge shopping refers to federal district where there are more than one federal district judge–and that is virtually every federal court in this country. If you were to judge-shop, you would seek a judge who imposes (a) tough sentences if you are a prosecutor or (b) less tough sentences if you are a defense lawyer.

    However, in the federal system, there are various mechanisms in place that make it nearly impossible to shop for judges. For example, federal cases are randomly assigned and in many districts the judges don’t even know beforehand which cases they will get. Moreover, federal judges are very sensitive to this concern and the judges as a group will take quick action to stop such judge shopping if it is observed. Finally, the US Sentencing Guidelines counsel judges to be concerned with unwarranted sentencing disparity and in many federal courts the judges as a group try to harmonize their sentencing practices and views and thus minimize the incentive to judge shop.

    In short, the judge shopping claim is bogus. All the best.


  4. Judge Matz,

    Thanks very much. Coming from a very experienced judge in a large and busy federal court (the Central District of California), who has had experience practicing law in New York and LA, plus a stint as an AUSA, your kind remarks are especially appreciated.

    All the best.


    PS I hope you are enjoying your much deserved retirement!

  5. Pingback: Fair is fair « Hercules and the umpire.

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