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.


About Gabi

photoGabi is our chief pro se law clerk, and a dear friend. She is also very smart and extremely funny in a wry way. Thinking  that I would not get the ironic trope since I am old and almost completely lacking in discernible pigment, she describes herself as a Spicey Latina. In a similar vein, she once told me that the best day of her life was when she hired a white cleaning lady.

Anyway, I got the following e-mail from Gabi regarding my trip to London:

I’m SO jealous. Please find time to go to Westminster Abbey, particularly Poets’ Corner. Greatest place on earth.

Jealous, jealous, jealous.

I mean I’m literally seething with envy.


Don’t drink the water!

(Emphasis in original.)

Note to Gabi: Keller promised to take me to the Poets’ Corner tomorrow. Look for a photo on this blog!


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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