Justice Kagan’s must read blog

Justice Kagan recently described How Appealing as a “must read blog.”  Howard Bashman, at How Appealing, reported Justice Kagan’s general comments about her favorite blogs but did not mention that his blog was one of those that the Justice characterized as a “must read.” (How Appealing, Saturday, June 29, 2012 posted at 10:03 PM by Howard Bashman.)  Mr. Bashman is too humble.

I share Justice Kagan’s view, not that my opinion means that much.  I could not get along without How Appealing.  It is a truly remarkable resource that is provided to the bench and bar for free.  It is a hell of a deal.


The evil uniped and the earnest young judge

Photo credit:  GollyGforce per Creative Commons license.

Photo credit: GollyGforce per Creative Commons license.

I have previously written about one of my big blunders.  Here’s another.  Thank the Gods it never made the papers.

I was a United States Magistrate Judge from 1987 until I became an Article III judge in 1992.  I served in Omaha. Among many other duties, Magistrate Judges typically handle bail questions under the Bail Reform Act.  In most cases, and while the accused is charged but not convicted, the Bail Reform Act mandates release on conditions.  Being the earnest young judge that I was, I took the Act’s directions too seriously.

The federal system uses pretrial services officers to investigate the accused to determine whether he or she is a suitable candidate for pretrial release.  If the accused is released, the pretrial services officer must supervise the accused.  While pretrial services officers are employees of the court, they are also federal law enforcement officers in the sense that they have the power to make arrests.  They carry weapons and are trained like other federal law enforcement officers.

Don Ranheim was the pretrial services officer I worked with in Omaha.  He later became the Chief Pretrial Services Officer for our district.  Don is retired now.  Because these officers are treated like law enforcement, they are forced to retire at a relatively young age due to the physical demands of the job.

One day, Don came to my office.  He described an offender who had been charged with some crime. The man had been arrested on a warrant.  Don told me that the guy had an extensive criminal history and was generally surly and nasty.  Don said the guy was a drunk too.  Don thought the guy was a flight risk, and recommended that I detain the man.

When I went into the courtroom, I noticed that the guy had only one leg.  He wore a prosthetic leg, but it had been taken from him due to security concerns of the US Marshals. I thought that was a bit much.  I also noticed that the guy was about as old as I am now.  I learned that guy was a diabetic, and had a series of other fairly serious health problems.

I told Don and the lawyers that I wasn’t going to follow Don’s recommendation.  I remember remarking about how cruel it would be to detain the guy given his conditions.  And, the US Marshals were damn sure going to give the guy back his leg–security concerns, my ass. Don, who was always very respectful, said, “It’s your call judge.”  The Marshals said nothing.

Well, I released the guy to a halfway house.  Shortly thereafter the guy got drunk, unscrewed his leg, took it off, hopped past the attendant at the front desk threatening to hit her with the leg, hailed a cab and escaped.  This is all true.  None of this is an exaggeration.

While the US Marshals eventually caught the guy (and his plastic leg), I became the first magistrate judge in the nation to lose a guy with one leg.  Now, when I see a guy with one leg, I have this almost overpowering impulse to trip him.


A must read

Judge Mark Bennett, my dear friend, and Professor Mark Osler have written a powerful op-ed entitled America’s Mass Incarceration:  The hidden costs. It appears in yesterday’s Minneapolis StarTribune.

Mark W. Bennett has been a federal judge in the Northern District of Iowa since 1994. Mark Osler is a former federal prosecutor and a law professor at the University of St. Thomas in Minneapolis.  They really know what they are talking about.  While I don’t necessarily agree with everything they wrote, I agree with the thrust of the piece.  In any event, the op-ed is a must read for anyone who is serious about federal criminal law.


Making the The Justice Safety Valve Act of 2013 palatable to cynics and skeptics

Cynics and skeptics of the The Justice Safety Valve Act of 2013 worry that without firm statutory minimums some federal district judges will go wild.  Their concerns are not without foundation.

What if the Act were left entirely as it is proposed but the appellate standard of review was lowered and set by statute.  That is, anytime a district judge sentenced below the statutory minimum under the Act, the standard of review on appeal would be de novo for both facts and law.

Just a thought.


Orwell lives

I adore Bette Midler.  She is so talented.  Intellectually, she is very bright.  And, she is funny in a wonderfully theatrical way.  Truly, she is the Divine Miss M.

Now, forgive the cognitive dissonance as I transition to George Orwell.  At the end, I’ll get back to the Divine Miss M.

In my legal writing post, a commentator (Matt) and I discussed George Orwell’s 1946 essay “Politics and the English Language.”  Orwell’s essay dealt with abuses of the language in a political (and by extension legal) context.

He concluded his essay this way:

I have not here been considering the literary use of language, but merely language as an instrument for expressing and not for concealing or preventing thought. Stuart Chase and others have come near to claiming that all abstract words are meaningless, and have used this as a pretext for advocating a kind of political quietism. Since you don’t know what Fascism is, how can you struggle against Fascism? One need not swallow such absurdities as this, but one ought to recognize that the present political chaos is connected with the decay of language, and that one can probably bring about some improvement by starting at the verbal end. If you simplify your English, you are freed from the worst follies of orthodoxy. You cannot speak any of the necessary dialects, and when you make a stupid remark its stupidity will be obvious, even to yourself. Political [legal] language — and with variations this is true of all political parties, from Conservatives to Anarchists — is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind. One cannot change this all in a moment, but one can at least change one’s own habits, and from time to time one can even, if one jeers loudly enough, send some worn-out and useless phrase — some jackboot, Achilles’ heel, hotbed, melting pot, acid test, veritable inferno, or other lump of verbal refuse — into the dustbin, where it belongs.

(Emphasis added.)

I began thinking hard about Orwell’s essay after Matt reminded me of it.  How frequently do I violate Orwell’s admonitions in my daily judge-job?  As it turns out, I rely upon “verbal refuse” just about every day. Let me give you a prime example.

When I sentence someone in a criminal case, I must resolve objections to the probation officer’s detailed investigative report. Then, I must grant or deny any motions.  After that, I must calculate the applicable Guideline levels. Finally, the law requires that I make an oral statement giving the reasons for my sentence.  It is at this point that I want the reader to recall what Orwell wrote.

To comply with the requirement that I state my reasons for a sentence, I have a “song and dance” that I invariably follow.  It goes like this:

To reflect the seriousness of the offense, to promote respect for the law, to provide for just punishment and to afford deterrence, and further recognizing that the Guidelines are advisory, and considering all the statutory goals of sentencing, I impose the following sentence: [state sentence].

As part of my “song and dance,” I then make inquiry of the lawyers.  “Do counsel have any questions about my judgment and sentence?”  If so, I answer the questions. Then, and here is the trap, “Do counsel want any further elaboration of my statement of reasons?”  If counsel do not request any further elaboration, the reasons for my decision are bullet proof on appeal for plain error purposes.  If counsel do request some further elaboration, I give it to them in spades.  Either way they’re screwed.

As I think about it, I am probably doing what Orwell railed against.  But, never fear, I have all sorts of reasons (rationalizations) why I will continue to do what I do.

So, back to the Divine Miss M.  I have my own Divine Miss M. She is my oldest daughter Marne.  She is very bright, funny and wonderfully theatrical.   For example, my Divine Miss M. has flamboyantly taken me to task for forgetting that Orwell’s 110th birthday was last Tuesday, June 25, 2013.  She punctuated her point by emphasizing that the Dutch put little party hats on the CCTV cameras in Utrecht as an homage to Orwell.  She chastised me for failing to rise to the occasion.

My Divine Miss M. has a point.  So, since I am a serial abuser of the language in a manner that Orwell would have deplored, the least that I can do is say, “Happy belated 110th Birthday, George.  You’re a better man than I.”


Image credit:  This is the cover art for the album The Divine Miss M by the artist Bette Midler. The cover art copyright is believed to belong to the label, Atlantic Records, or the graphic artist(s). Fair use is claimed.

Image credit: This is the cover art for the album The Divine Miss M by the artist Bette Midler. The cover art copyright is believed to belong to the label, Atlantic Records, or the graphic artist(s). Fair use is claimed.

Doug Berman and Bill Otis

Professor Doug Berman knows more about federal sentencing than any judge I know.  That doesn’t make him right, just extraordinarily knowledgeable.  Bill Otis, a former Justice Department official, is not far behind Professor Berman.  That doesn’t make him right, just extraordinarily knowledgeable.

They have a fundamental disagreement about statutory mandatory minimums, and the current Congressional study (and legislation) regarding a proposal to give sentencing judge more power to go below statutory minimum sentences.  See here.  Professor Berman proposes a debate between the two.  That is a wonderful idea, and I heartily second it.

My view about statutory minimum sentences is that they grossly distort the purposes of Guideline sentencing in the federal courts.  If I had my choice, I would eliminate statutory minimum sentences but make the Guidelines more like binding rules.  This is because I am not a fan of open-ended judicial discretion, but I also think some limited form of judicial discretion at sentencing is a good thing.  Assuming the Supreme Court will not change its ill-advised, unprincipled, and historically inaccurate rulings in Apprendi and Booker and their spawn, I would have juries decide facts that trigger application of those rules.

In the end, however, what I think is elevator music, that is, just noise.  What Doug Berman and Bill Otis express in reasoned oral discourse is important.  Congress, the Commission and the rest of us would benefit greatly if the two of them had it out, live and in person in a venue that would truly allow them to engage each other.  I urge both of them to do it.


The fire stick

Photo Credit: Watership Down by Tristan Ferne per Creative Commons license.

Photo Credit: Watership Down by Tristan Ferne per Creative Commons license.

There is a pretend world and a real world.  That realization struck home vividly this summer.

I first saw the words “fire stick” at about the time I graduated law school in 1972.  It was when I read the then recently released but now classic novel Watership Down.  Here is a nice summary of the book:

“Set in south-central England, the story features a small group of rabbits. Although they live in their natural environment, they are anthropomorphised, possessing their own culture, language (Lapine), proverbs, poetry, and mythology. Evoking epic themes, the novel is the Aeneid of the rabbits as they escape the destruction of their warren and seek a place to establish a new home, encountering perils and temptations along the way.”   Wikipedia.

A reference to the “fire stick” can be found in Chapter 9.  It reads this way:

“We were attacked by a cat and had to run for it,” Fiver explained, “I’ve sent Pipkin back to the down with a new rabbit called Clover. But I don’t know where Hazel is. He’s been hurt by a man thing- Clover called it a fire stick.”

“No, is barking stick, make big sound, yes?” Kehaar asked.

Fiver nodded.

“With big sound comes black pebble,” the gull continued. “If black pebble bite Hazel he need help.”

Since then, I cannot look at a rifle without thinking “fire stick”  and rabbits.

At about the same time (late ’60’s or early ’70’s), and after a rabbit hunt in the “wilds” of Toledo, Ohio, I decided to quit killing those creatures for sport.  The anguish of a squealing rabbit shot through the gut was no longer appealing.

I still have a “fire stick,” although a real hunter would laugh at it.  And, on occasion, I still use it to kill rabbits that invade Joan’s garden.  Those damn things gnaw through her pretty flowers like fierce and furry scythes.

I am not much of shot.  This season I am 2 for 4.  We put the dead ones in the beer frig in the garage, and freeze them solid.  When the garbage man comes, the “bunny pops” end up in the dump.

Even for a good cause, killing rabbits makes me cringe.  After one of my recent rabbit slaughters, something else occurred to me.  I live two lives at the same time.  There is my pretend life as when I luxuriate in the story of Watership Down.  Then, there is my real life in our garden with a .22 or in the federal courthouse with a Guidelines Manual.  Sometimes, I wish that were not so.  But, most importantly, I need to be honest about all of it.


%d bloggers like this: