I am a twit ’cause I don’t know whether to twitter–help me!

I grew up with rotary dial telephones and sometimes I miss them. Now I am blogging. That is a prime example of cognitive dissonance.

Anyway, a really nice person wrote me an e-mail and said I should use Twitter with this blog. Honest to God, I have no idea what that means, or why that would help me blog better. Really, I am a twit in the old-fashioned meaning of that word.

Can anybody help me understand how Twitter would make this blog better? If you do, please explain how I should do it, and then give me a 1, 2, 3 step approach.


PS While I don’t have a Twitter account, I do have a Facebook page (with essentially no information on it). I don’t use it and don’t know how to use. I got it to help me understand how one registers for Facebook and to address a legal question related to one particular aspect of sex offender registries. So, if you think I should be using Facebook with this blog, feel free to add your thoughts to that mystery as well.

A question for Dr. King 50 years later

Photo credit: Jim Bowen per Creative Commons license.

Photo credit: Jim Bowen per Creative Commons license.

The 50th anniversary of Dr. Martin Luther King’s “I have a dream speech” and the March on Washington started me thinking once again about the many young black men I send to prison for dealing drugs and devastating the lives of others in so doing. The black crack whore, pulled into the grimy world of prostitution by her addiction and the young black men who fueled it, and who hung herself in the cell adjacent to the courtroom where I sentenced her, plagues me still. My inability to speak the truth about these young men troubles me even more.

If he were alive today, and with the benefit of the 50 years of history that have unfolded since 1963, Dr. King could provide federal sentencing judges like me with an unmatched perspective backed up by unimpeachable integrity. In short, I wonder what specific advice Dr. King would have for me as I sentence young black drug dealers in 2013 and beyond? That is not an idle question.


A nice way to leave the UK

I don’t travel well. To be more precise, I fall apart when I travel. I suppose it is because my limited supply of neurons cannot take the onslaught of stimuli.

On the way to London, I was confronted by a TSA agent in Chicago who told me my roller bag was too big to carry on. Never mind that I had already “carried it on” the prior flight. Never mind that I had frequently “carried it on” other flights, particularly international flights. With a curt and dismissive gesture from the very bored security official, I quickly found out that there is no appeal from the pronouncements of those officers in the US. OK, so, that’s the context.

I left London Friday. Heathrow airport at 5:30 AM in the morning is busy. Since I had stayed up all night, I was naturally tired and, to boot, my Xanax was kicking in. I checked the “carry on” that was not a “carry on” according to the TSA agent in Chicago. Then free of that bag, I headed to security.

I take a shoulder bag to and from work. It has all the things I think I may sometimes need. In particular, since I smoke a pipe (an affectation picked up when I was a college student and never dropped), the bag has a clear plastic baggie of pipe tobacco. It looks like dope but smells like what it is, pipe tobacco. It also contains my lighters, my judicial credentials, pens, and other stuff. When I travel, the bag also has the travel paperwork and whatever books I am taking along with me together with my increasingly numerous medications. I love my bag.

Back in London, I made it through security, happy that the Brits did not make me take my shoes off. I had a hole  in my right sock where the leather of my loafer had rubbed through and blistered my little toe when Keller and I did our walk-about in London.

While I quickly made it through screening, my shoulder bag was another thing. An alarm went off, and I was asked to take a seat as a British security officer removed the bag from the conveyor belt and took custody of it.

Soon summoned to a table, I was politely requested to remove my things from the bag. I did while nervously explaining my baggie of pipe tobacco. The security agent smiled nicely and said, “Of course, sir.” The inside and outside of the bag was rubbed down with a small cotton square and off the Brit went to test the sample. Another alarm sounded. That process repeated itself three times with the same result.

Next, a senior security officer approached me. He asked the people around me to stand back “for the gentleman’s privacy.” He did so quietly, and with a smile. He then engaged me in a short conversation, asking first very politely if I would “object” to answering some questions. Of course, I said no. Then, he asked questions about the bag and took down some personal identifying information. After that, he said something like, “Sir, you have  been very helpful. I am so sorry for troubling you. You are free to leave with your bag.” He added, “Do have a safe journey.”

The practical, sensible and polite treatment I received from security officials at Heathrow was a nice way to leave the UK. I could not help but contrast the way I was treated as a foreigner in London as compared with the way I was treated as a citizen in Chicago.


A reading list for young lawyers

Jill’s comment to the post about Letters to a young scientist gave me an idea. I would like to solicit suggestions for a reading list of books that young lawyers might find helpful.  It does not matter whether the book relates to the law. The book may well be something entirely unrelated to law, but worthy of a young lawyer’s consideration. Fiction or non-fiction is fine–it doesn’t matter.

So, if you  have a suggestion for a book or even several books that young lawyers should read, put it in a comment to this post.  If I get enough comments, I will put up a post with a compilation of the suggestions.

And, let’s use a bit of a format. Nothing fancy. Something like, title, author, and several descriptive sentences about the book and why you think young lawyers should read it.

I will start.

  1. The Immense Journey. Loren Eiseley. In my opinion, the best book ever written. Young lawyer’s need perspective. Eiseley provides it in a book on natural history and time with prose so beautiful it can make you weep.
  2. Jack Aubrey Novels. Patrick O’Brian. Twenty novels on the friendship of ship’s captain Jack Aubrey of the Royal Navy and Stephen Maturin, ship’s surgeon and intelligence agent. Young lawyers need to read for fun. Life aboard a man-of-war in Nelson’s navy provides the background for the best historical novels ever written.
  3. A Grief Observed. C.S. Lewis. Written after his wife’s death as a way of surviving the “mad midnight moment,” A Grief Observed is C.S. Lewis’s honest reflection on the fundamental issues of life, death, and faith in the midst of loss.  I hope young lawyers will never need this book. Unfortunately, I did. In some ways, this very short book saved my life.

I look forward to your suggestions.


Letters to a young scientist

It is early, very early morning in London. My flight leaves from Heathrow, and since I am on the east end, the car will take an hour to get to the airport. I have decided to stay up until I leave at 4:30 AM when I will trudge out of the overly modern hotel and into the stubby, funny looking taxi. It is misty, and that fits my mood.

Keller gave me a gift today. It is Edward O. Wilson’s Letters to a Young Scientist. Regarded as one of the world’s preeminent biologists and naturalists, Edward O. Wilson spent his boyhood exploring the forests and swamps of the American south, collecting snakes, butterflies, and ants–ants became his lifelong specialty. The author of more than twenty books, including the Pulitzer Prize-winning “The Ants” and “The Naturalist,”  Wilson is a professor at Harvard.61EVHwilv5L

Keller told me that Wilson’s book was deeply inspiring. He said the little book truly played a major role in Keller’s decision to continue working as a biologist and ecologist far away in Australia despite the crap fledgling scientists must endure, not to mention the miserable pay. As this recent piece in the New York Times demonstrates, even grizzled biologists have been inspired by Wilson as well.

I asked Keller to inscribe the book on the inside cover. He laughed at me, but grudgingly did so. It reads, “To: Dad, Love Keller, London, 2013.”

From the depths of my most unscientific heart, thank you Professor Wilson.


Sentencing rich white guys

Let’s say you have a big trader who passes along inside information with no expectation of receiving a damn thing. He just does it knowing it is wrong. Let’s also assume that the offender is a really good man whose life has been lived at an exemplary level. As the sentencing judge, do you want (do you need) to know why the offender did what he did? The answer to that question is more complex and much harder than you might imagine. At the end of this post, I will have a question, and I hope readers will provide an answer.

I am pleased to call to your attention a very interesting and important new article on this subject written by Todd Haugh, a former Supreme Court fellow and a law professor at Chicago-Kent. The title to the article is: Sentencing the Why of White Collar Crime.  The piece will appear in the Fordham Law Review, but for now you can find it here (on the Social Science Research Network for free).

The abstract reads like this:

“So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider trading defendant of the past 30 years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in Gupta that warranted such a modest sentence? While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is exceedingly clear that Judge Rakoff’s search for those motivations impacted the sentence imposed.

This search by judges sentencing white collar defendants — the search to understand the “why” motivating defendants’ actions — is what this article explores. When judges inquire into defendants’ motivations, they necessarily delve into the psychological justifications defendants employ to free themselves from the social norms they previously followed, thereby allowing themselves to engage in criminality. These “techniques of neutralization” are precursors to white collar crime, and they impact courts’ sentencing decisions. Yet the role of neutralizations in sentencing has been largely unexamined. This article rectifies that absence by drawing on established criminological theory and applying it to three recent high-profile white collar cases. Ultimately, this article concludes that judges’ search for the “why” of white collar crime, which occurs primarily through the exploration of offender neutralizations, is legally and normatively justified. While there are potential drawbacks to judges conducting these inquiries, they are outweighed by the benefits of increased individualized sentencing and opportunities to disrupt the mechanisms that make white collar crime possible.

Now my question: Isn’t a judge’s search for an explanation of why rich white guys commit financial crime as a reason for mitigating harsh sentences a terrible idea if only because as a normative matter rich white guys deserve no further breaks in life?


The Supreme Court of the United Kingdom

Middlesex Guildhall, the building housing the British Supreme Court

Middlesex Guildhall, the building housing the UK’s Supreme Court

I visited the United Kingdom’s Supreme Court building today, but court was in recess until October. The building is modest compared to the surroundings which include Parliament and Westminster Abbey. I found it fascinating, however, that a beautiful sculpture of Abraham Lincoln is placed in front of the building housing the court. Lincoln is my favorite of our Presidents, and I have beautiful bust of Honest Abe in my chambers. The bust was sculpted by Chris Cook, who is the son of Ed Cook, my former law partner. Chris was an exceptional lawyer and he has turned into a wonderful artist. Anyway, and as shown by the photo below, I was struck by the figure of Lincoln, the quintessential American lawyer, in service to the ends of British justice.


Abe and me in London

Abe and me in London

Poets’ Corner

photo (2)

Westminster Abbey is beyond belief.  Gabi asked that I visit there and in particular see the Poets’ Corner. I did as evidenced by the attached surreptitious photos I took upon pain of being hauled off to the Tower of London had I been found out.


*Notice the partial image of my thumb which was captured as I tried to nonchalantly take the following photo without being noticed. Keller found my law breaking amusing.

Poets' Corner

Judge Bennett skewers DOJ like a shish kebab of little lamb , prompting me to ask: What in the name of bloody blue hell is going on at the US Attorney’s office in Nebraska that allows for the disparity that Judge Bennett writes about?

Judge-BennettAlthough we often disagree, Mark Bennett is a dear, dear friend. More relevant to this post, he is one of the nicest, most intellectually honest, smartest and prolific of all federal trial judges. He has written an opinion regarding disparity in drug sentencing regarding section 851 enhancements for prior drug sentences. Mark’s opinion is featured in Professor Berman’s preeminent sentencing blog here. From London, I can see that the opinion has already generated 22 comments on SL&P. With all this in mind, here is my take:

This opinion is one of the most important federal sentencing decisions to be issued by any court at any time. It highlights dramatically and exactly what happens when we ignore unwarranted sentencing disparity whether that disparity is generated by judges doing their own things or by prosecutors using the Guidelines and statutory minimums as bargaining tools to extort guilty pleas from defendants who dare to say, “prove it.” Again, this is a big, big deal.

Pursuant to the penalty provisions set forth in 21 U.S.C. § 841(b)(1), enhanced penalties, including
increased mandatory minimum and maximum terms of imprisonment, apply if the
defendant has a prior conviction for a “felony drug offense.” “Felony drug offense” is
defined as “an offense that is punishable by imprisonment for more than one year under
any law of the United States or of a State or foreign country that prohibits or restricts
conduct relating to narcotic drugs, marijuana, anabolic steroids, or depressant or
stimulant substances.” 21 U.S.C. § 802(44). These enhancements are usually referred to as
“§ 851 enhancements” because 21 U.S.C. § 851 establishes and prescribes certain
notice and other procedural requirements that trigger them.

Among other things, Mark found that a few miles (as between Sioux City, Iowa and Sioux City, Nebraska) can make a damning difference.  He writes:

Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.

Id. at slip op. p. 3 (emphasis added).

I have a lot of reactions to Mark’s opinion. But, here are my two strongest ones, framed in the form of questions.

  1. What the hell is going at the United States Attorney’s office in Omaha (and elsewhere) that allows disparities like this to exit–if a section 851 enhancement applies, why is the government not pressing it on a principled and consistent basis whether or not the defendant elects to go to trial?
  2. What, if anything, should the judges in Nebraska (and elsewhere) do to see to it that such disparities are reduced?

I trust that Deb Gilg, our very able United States Attorney, will have an answer to my first question. Once I have that, I will press hard  for an answer to the second one.


London and Keller

I am now recovered from the flight.  Attended Keller’s presentation today.  He did well.

Must have been the day for Australians. The plenary conference speaker was an Australian.  He was great. He spoke about coral reefs. He has done some amazing stuff including a very inventive collaboration with Google (see below). Keller is Australian (he holds Australian and American citizenship). The moderator for Keller’s presentation was Australian. One of the questioner’s for Keller’s presentation was Australian.

In any event, I think Keller was pleased about how his talk went. I was, of course, proud. But, I resisted anything overt such as standing up and shouting “that’s my kid!”

Despite the Aussie invasion, this is a large conference at a huge conference center with people from all over the globe. It is the 100th anniversary of the British Ecological Society, and that is a big deal. Topics are broad ranging.

From a lay perspective, one of the neatest things I learned is that Google Maps will now allow you to “dive” on corral reefs.  See here. Google did this project in association with ecologists from Australia. By increasing the number of regular people who are familiar with coral reefs due to having “dived” on them, the hope is that governments will be spurred into action by their citizens to deal more fully and seriously with the dramatic decline of coral reefs throughout the world.

I may get back to legal stuff tomorrow.  But, for now, some photos follow


The conference center is where the boxing and wrestling matches were held for the London Olympic Games.  It is adjacent to the Thames. Ultra modern and huge.

The conference center is where the boxing and wrestling matches were held for the London Olympic Games. It is adjacent to the Thames. It is ultra modern and enormous in size–about four footballs fields long and all under one roof.

Keller at the conference.  Compared to everyone else, he well dressed. Apparently ecologists never put on dress suits. Truly, out of thousands of people, I was the only one in a suit including the plenary conference speaker.

Keller at the conference. Compared to everyone else, he well dressed. Apparently ecologists never put on dress suits. Truly, out of about a thousand of people, I was the only one in a suit.

RGK getting ready to ride light rail into the center of London.  I was so tired last night that we simply rode in to the center of London, and found an old pub. We had a drink and a nice talk and then back to the hotel for sleep.

RGK getting ready to ride light rail into the center of London. I was so tired last night that we simply rode in to the center of London, and found an old pub. We had a drink and a nice talk and then back to the hotel for sleep.

A small portion of parliament from inside the very expensive cab ride from Heathrow on the far west to London Excel on the far east.

A small portion of parliament from inside the very expensive cab ride from Heathrow on the far west to London Excel on the far east.

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