Freddie insisted that there be no hoopla. So, he came to my chambers, took the oath and started work as US Probation Officer, but not before I insisted on a photo.

Freddie insisted that there be no hoopla. So, he came to my chambers, took the oath and started work as US Probation Officer, but not before I insisted on a photo.

Yesterday, I swore Freddie in as a United State Probation Officer for the District of Nebraska. He previously spent 17 years as United States Pretrial Service Officer for the District of Nebraska. Before that, when he was a little kid, he was my neighbor in Lexington along with his three brothers.* He is one year younger than my daughter Marne and one year older than my daughter Lisa. The kids were good friends.

If I disclosed what I know about the four hellions–meaning Freddie and his brothers–there is a good possibility that Freddie would have to give up his federal law enforcement credentials, surrender his service weapon and then enroll in the witness protection program. But, I won’t.

Instead, I will happily watch as he takes on the especially difficult responsibility of supervising felony offenders in a large part of the Third District of Nebraska. He has had that territory as a Pretrial Officer, so the transition, part of our planned consolidation of Pretrial and Probation, will be smooth. That said, the job is daunting. Freddie will look after offenders on supervised release in an area compromising nearly 40,000 square miles and covering two times zones. Freddie is a strong, tough, supremely fair, no-nonsense, very smart and extraordinarily experienced young man who is unusually well-suited to handling difficult people in potentially dangerous situations in remote places and without backup. There aren’t many US Probation Officers who face the challenges that will confront Freddie.

Freddie's territory.

Freddie’s territory.

By the way, Freddie hates attention and he hates being called “Freddie.” He goes by “Fred” except when I think or write about him. In my thoughts, Fred will always be Freddie. He will just have to get over my use of the diminutive. After all, it’s better than Fredericka! Now, there’s  an idea . . . .

Anyway, be safe Freddie.


*Freddie’s parents are saints. Only saints could have dealt with those four boys.

Judge Joe Bataillon announces he will take senior status October 3, 2014

Our Clerk’s office issued a press release today. In pertinent part, it reads as follows

District Judge Joseph F. Bataillon today announced his plan to retire from regular active service as a United States District Judge for the District of Nebraska, effective October 3, 2014. Judge Bataillon will take senior status on that date, but will maintain a full caseload.

Commenting on Judge Bataillon’s years of service to the federal court, Chief District Judge Laurie Smith Camp stated, “Judge Bataillon’s has had a very distinguished judicial career since his appointment in 1997, including seven years as this district’s Chief Judge, and twelve years in national leadership roles–guiding the federal judiciary’s policy on budget, finance, economy, security, and space and facilities. We are grateful that Judge Bataillon has chosen to remain with the Court in senior status, continuing to build on his impressive legacy.”

Judge Bataillon’s retirement to senior status will create a vacancy on the district court bench. President Obama will nominate Judge Bataillon’s successor, who then must be confirmed by the United States Senate. The district court judges have stressed to Nebraska’s two United States Senators, Mike Johanns and Deb Fischer, the importance of nominating and confirming an able successor to replace Judge Bataillon. Currently, Nebraska’s criminal felony per-judge caseload ranks eighth out of the nation’s 94 districts. For the 12-month period ending June 30, 2013, the average federal district judge handled 121 criminal cases, while the average Nebraska federal district judge handled 237 criminal cases. Nebraska ranks seventh in the nation for supervised release hearings in criminal cases. The average federal district judge handled 37 supervised release hearings,while
the average Nebraska federal district judge handled 106. In light of these statistics and Nebraska’s loss of its fourth active federal district judgeship in 2007, upon the retirement of the late Judge Thomas Shanahan, Judge Bataillon’s successor will need to assume and manage a busy docket.

Judge Joe has been an especially able United States District Judge and a power for good at the local and national level regarding the administration of the federal courts. In my opinion, he was the best Chief Judge our court ever had. Most importantly, he is a really fine person.


Crazy and cruel

Photo credit: This photo is taken from the superb 1991 movie Fisher King with Robin Williams and Jeff Bridges. Williams' character lives in a hole in the wall, talks to invisible "fat people," and believes a fire-emitting, mounted knight is constantly pursuing him. When the movie literally depicts the knight chasing Williams' character through the streets of a major city on a huge black horse, you see what schizophrenia actually looks like, including, most especially, the terrifying auditory and visual hallucinations that are frequently present.

Photo credit: This photo is taken from the superb 1991 movie The Fisher King with Robin Williams and Jeff Bridges. Williams lives in a hole in the wall, talks to invisible “fat people,” and believes a fire-emitting, mounted red knight is constantly pursuing him. When the movie literally depicts the red knight chasing Williams’ character through the streets of a major city on a huge horse, you see what schizophrenia actually feels like, including, most especially, the disorganized thoughts and the terrifying auditory and visual hallucinations. It is horrible.

A guy walks into the Washington Navy Yard . . . . Sounds like beginning of a demented joke. And, it is, sorta.

To understand that the “joke” is on us, you must read The real Navy Yard scandal by Charles Krauthammer. As an aside, you don’t have to buy Krauthammer’s right-wing views about guns to appreciate his insights as a Harvard trained and board certified medical doctor and psychiatrist. Here is the heart of his article:

As was the case in the Tucson shooting — instantly politicized into a gun-control and (fabricated) tea-party-climate-of-violence issue — the origin of [the Navy Yard] crime lies not in any politically expedient externality but in the nature of the shooter.

On Aug. 7, that same Alexis had called police from a Newport, R.I., Marriott. He was hearing voices. Three people were following him, he told the cops. They were sending microwaves through walls, making his skin vibrate and preventing him from sleeping. He had already twice changed hotels to escape the men, the radiation, the voices.

Delusions, paranoid ideation, auditory (and somatic) hallucinations: the classic symptoms of schizophrenia.

So here is this panic-stricken soul, psychotic and in terrible distress. And what does modern policing do for him? The cops tell him to “stay away from the individuals that are following him.” Then they leave.

(Emphasis added.)

Here is what should have happened:

Had this happened 35 years ago in Boston, Alexis would have been brought to me as the psychiatrist on duty at the emergency room of the Massachusetts General Hospital. Were he as agitated and distressed as in the police report, I probably would have administered an immediate dose of Haldol, the most powerful fast-acting antipsychotic of the time.

This would generally have relieved the hallucinations and delusions, a blessing not only in itself, but also for the lucidity brought on that would have allowed him to give us important diagnostic details — psychiatric history, family history, social history, medical history, etc. If I had thought he could be sufficiently cared for by family or friends to receive regular oral medication, therapy and follow-up, I would have discharged him. Otherwise, I’d have admitted him. And if he refused, I’d have ordered a 14-day involuntary commitment.

About 35 years ago, I had more than a few experiences similar to those recounted by Krauthammer. Serving as the chairman of the mental health board or representing people who appeared before the board, I saw many  schizophrenics in a florid state. Some readers may recall that I have written about two of those tortured people here and here.

I also dealt with one of these poor souls in a situation roughly similar to the Navy Yard shooter. My man was in his early 20s and, like so many of his fellow sufferers, he became seriously disturbed when he stopped taking medications.

One afternoon, the young man’s mother, a good client, a long-time school teacher and a very dear person, came to the office upset and concerned about her son. He was squirreled away in the family home, refusing to leave for any reason. As happened from time to time, he was off his meds. He was terrified because of the delusion that people hidden in the walls of the house were talking about him and planning to do him harm.

I knew the young man, and he knew me. Despite his schizophrenia, it was clear to me that he would never intentionally harm anyone. That didn’t mean, however, that he wouldn’t hurt himself or someone else if his hallucinations became severe enough.

I went to the home, and he let me in. He was shaking from fright and held two antique pistols that his late father had collected. I couldn’t tell if they were loaded. He was very glad to see me. He talked non-stop and excitedly about the voices coming from the wall. Additionally, he earnestly recounted that “they” were probing for him with x-rays that came from behind the wall. He had taken protective measures he told me and the tin foil he had placed all around the sofa partially blocked those rays.

Because he was so far gone, I dove into the kid’s hallucination and agreed with the him that I too could hear the voices and even see the tingling of the x-rays as they bounced off the tin foil. I suggested that we had to make a run for it, and get to the police station right away before the bad men could get him. He agreed.

So I opened the front door. I urged him to creep quietly toward the door. I  whispered to him to leave the guns on the sofa so the x-rays wouldn’t pick up the moving metal on his person as we escaped. He did. Then, we ran out the door to my car.

When we got to the police station, I told him the police would protect him by putting him in a room where no one could hurt him. They would also stand guard outside to stop the bad men from getting to him. I assured him that no x-rays could enter the police station because of the special shielding the police used to stop such things. He willingly allowed the police to put him a holding cell. Soon thereafter he was transported to the Regional Center where he was treated with Haldol and released after several days. He was a different person when he got out.

Why didn’t that same thing happen to the Navy Yard shooter? In our modern zeal to respect the civil rights of the mentally ill, we have so over-legalized our approach to the incapacitation of the floridly psychotic that we place ourselves and those poor souls in grave danger. We require a recent overt act showing danger to self or others before we forcibly treat these extremely demented people. Invisible men bent on killing the patient and killer alien rays are not enough. That’s crazy and cruel.


Do the costs of incarceration influence sentence length?

In an earlier post, I suggested that efforts at cost containment at the federal level might create a perverse incentive for federal judges.  That is, to preserve the balance sheet for the federal judiciary, judges might select shorter supervised release terms in an effort to save money. This is because, unlike the cost of incarceration, the federal judiciary is required to undertake the costs of supervised release.

After the post went up, Magistrate Judge Andrew Wistrich called to my attention a fascinating law review article that he and his coauthors recently published in the UCLA law review. Among other things, these highly regarded researchers attempt to get at what happens to the length of sentences when sentencing judges are given detailed cost information and explicitly directed by the law to consider that cost information at sentencing. See Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie, Altering Attention in Adjudication, 60 UCLA L.REV.1586, 1591-1597 (2013).   (Jeffrey J. Rachlinski is a professor of law at Cornell Law School; Andrew J. Wistrich is a magistrate judge in the U.S. District Court for the Central District of California; and Chris Guthrie is the Dean of Vanderbilt Law School.)

Using Missouri law as the predicate, where judges are explicitly tasked with considering the cost of incarceration when choosing a sentence, the authors set up two scenarios with each scenario having three different cost-of-incarceration parameters.Thus:

[W]e asked 133 judges attending the annual meeting of the American Judges Association in September 2010 to sentence a hypothetical defendant identified as“Hector Campbell, an unemployed drummer.” The judges were split into two groups—one received a scenario charging Hector with possession of cocaine, while the second received a scenario charging  Hector with rape.

Id. at 1596.

What do you think the researchers found? I won’t spoil the ending, but you will be surprised. More importantly, you will be intrigued.


The difference between dumb and stupid

As the Republicans, led by a Canadian born reincarnation of Genghis Khan (but without the good looks) and another guy who apparently paints himself with day-glow orange makeup,  threaten to shut down the government, I have a problem. I am forced to consider what I will do with a complex criminal case scheduled for a jury trial starting one day after the federal budgetary deadline. Will I have money to pay jurors? Will the staff be furloughed? Will I have US Marshals?

Now, I should be fair. God knows, judges are supposed to be fair (but never active). The Republicans threaten to destroy the world as we know it, but, truth to tell, the Democrats, like the insipid “little person” who runs the Senate, are happy as clams at the prospect. That way these progressives (what an idiotic name) can blame the Republicans for starving puppies. With a little effort, I can almost hear the scripted but horribly delivered lament from that strange lady who used to run the House.

So, is there a moral equivalency between these two fractious factions? I don’t even know what the hell that question means. But, I do agree with Lewis Black that: “The Democrats are dumb and the Republicans are stupid. The difference between dumb and stupid is dumb isn’t funny. Stupid is seriously funny.”  So, instead of fretting over the plight of jurors, I am going to sit back, scratch my ever expanding ass and laugh. By the way, that’s what old RINOs do.


We are the scriveners

MuesBalancedNebraska has a peculiar beauty. This place is infused with such extremes of wind, weather, drought, flood, geology, geography and the constant threat of hardship that the beauty can quickly turn painful.

Although he graduated from the University in Lincoln, I first got to know Wes Mues when he and I attended Kearney State College long ago. Wes was a beautiful person. Not only was he outwardly attractive, but there was a genuine warmth about him that pulled people to him. Look at the photo at that top of this page. See what I mean? You could not help loving Wes.

Following college, I got to know Wes much better after we both enrolled as first year law students. During the following three years, we became buddies. He really shined in law school. After we graduated (Wes “with distinction”), we found ourselves together again. We became extremely close friends when he clerked for federal district judges “Dick” Dier and “Duke” Schatz and I clerked for Don Ross, a federal circuit judge. Both chambers were in Omaha, and, when Judge Dier died unexpectedly, Wes came to work with Judge Ross until Judge Schatz was confirmed.

We both left clerking at about the same time to enter the real world. We both ended up a few miles apart in central Nebraska where the Sandhill and Whooping cranes come in the icy-cold spring. I think we both returned to the sticks because we wanted to become real lawyers, whatever that meant to us at the time.

Wes began to practice with a preeminent trial lawyer in Kearney by the name of Jim Knapp. Wes and I later learned and laughed about the fact that Knapp had offered each of us the same job when he only had room for one of us. In addition to being a truly great trial lawyer, Jim was an outsized character.

I went into practice in Lexington, about 45 miles to the west. I was drawn to Lexington by Ed Cook, Judge Ross’ brother-in-law. Ed’s followed his father who followed his father into the practice of law in Lexington. The firm was founded in 1884. Ed is the best lawyer and person I have ever known. But, I digress.

Over the years, Wes and I bumped into each other in our respective practices. Once, entirely on a technicality (I was good on technicalities), I bested Wes in a suit about an airplane that got burned up in a hangar. That was the only time.

On another occasion,  I got into a tussle with a first-year associate in Wes’ firm. The kid did something to really annoy me (I can’t remember what that was), so I called Wes to complain. I told Wes the young man was an “asshole.” Wes replied that I was entirely and unquestionably correct.  But then Wes added, “He’s our asshole, so get over it.” I laughed so hard I forgot about being angry.

Another time, Wes agreed to become the “first-chair” lawyer in a federal diversity case that was too big and complex for our little three-person firm to handle alone. We were representing a retired farmer whose brain was nearly but not entirely destroyed in an accident caused by the driver of an errant semi-truck and trailer. Due largely to Wes, we settled that case for what was then the largest insurance payout in Nebraska’s history. The day-in-the-life video of our client that Wes put together, showing the poor fellow at the asylum calling for his mother as big tears rolled down his weather-beaten face, was the most powerful evidence that I have ever seen.

In 1984, I got myself into a load of trouble. Earlier, I had agreed to become special counsel to the Nebraska legislature, and that matter unexpectedly resulted in my appointment as a special assistant attorney general to try the impeachment of Nebraska’s Attorney General, Paul Douglas. Douglas was liked by all (he once offered me a job) and members of the Republican party absolutely adored him. Except to say that the matter involved the Attorney General’s personal business dealings with a failed financial institution, the facts aren’t important in this context. That said, the impeachment was a very big deal in Nebraska. For background, see Terrance DeWald, An Evaluation of Nebraska’s Impeachment Standard–State v. Douglas, 29 Creighton Law Review 358 (1986).

Under the Nebraska Constitution, we had only ten days to prepare. Worse, the legislative staff that provided me with support was ready and willing but didn’t know the difference between a deposition and a donut.  Since Nebraska has a one-house legislature, the trial was before the Nebraska Supreme Court. To make matters more difficult, the court had previously decided that an impeachment trial was “criminal” in nature even though the only “sentence” that could be imposed was expulsion from office. That meant the “proof beyond a reasonable doubt” standard applied. It also meant that we could not call Mr. Douglas as a witness.

Needing help desperately, I telephoned Wes and asked him to try the case with me. Now, slow down, dear reader, this is important: Wes should have turned me down because to do otherwise seriously risked his promising career, but he didn’t. All I remember is Wes quickly saying something like, “Of course. See you in the morning.” By the way, Wes was a Democrat and I was a Republican, but neither one of us were particularly active in politics.

The next day, Wes drove the 135 miles or so from Kearney to Lincoln and we began to get ready. Following feverish preparation day and night for the short time remaining to us, we soon found ourselves trying the case before the Nebraska Supreme Court. A public television camera broadcast the trial live to a statewide audience and the New York Times reported the story.

Our main assertion was that Douglas had an ethical duty not to misrepresent facts involving his conduct but that he had done so. Four of the seven judges found we had proven that count beyond a reasonable doubt. However, a majority was not good enough. The Nebraska Constitution required a super-majority of five to convict. As a result, Douglas was found not guilty of the articles of impeachment.

As I look back, both Wes and I were toughened yet chastened by the experience–for two lawyers, in our late thirties, that was a pearl of great price. In any event, after the trial, we packed up, drove west and returned to our respective lives and practices.

Ultimately, we both ended up as judges. I became a United States Magistrate Judge in 1987 and then a United States District Judge in 1992. Incidentally, Bill Morrow, the extremely smart, tough and gruff lawyer who successfully defended Mr. Douglas went out of his way to help me with that appointment.

In 1994, Wes was appointed as a judge on the Nebraska Court of Appeals. I was tickled to speak at his investiture in the breathtaking former Senate chambers of the Nebraska State Capitol building. That was a day of joy. Oddly enough, I don’t think Wes and I exchanged more than a few words. After the doings, I rushed back to the office to attend to something or the other. I desperately wish I had paid more attention to the moment but that time has passed me by.

Like the back of my hand, the intersection, near Highway 81 and I-80 at Grand Island, is familiar to me. I have eaten stale cookies, consumed horrible coffee and filled up my car with gas there uncounted times. So had Wes. But it was at that place, not far from where the prairie schooners used to navigate the tall grass, that Wes died in a car wreck.  On October 25, 1999, after 51 years, 173 days, Wes was gone.

I was asked to speak at his funeral, and I agreed. I showed up. But, to tell the truth, I didn’t actually speak. All I did was read a poem, and then I sat down. Figuratively, I am going to do the same thing now. There is nothing more that I can say.Here is that poem:

We Are The Scriveners

I have not seen [him] in forty years.
[He] . . . lies in one of those midwestern
farm cemeteries where
no one remembers for long, because everyone
leaves for the cities. [He] was young, with freckles
and a wide generous mouth, a good [boy] to have
loved for a lifetime but the world
always chooses otherwise, or we ourselves
in blindness. I would not remember so clearly save that here
by a prairie slough sprinkled with the leaves of autumn
the drying mud on the shore shows the imprint
of southbound birds. I am too old to travel,
but I suddenly realize how a man in Sumer
half the world and millennia away
saw the same imprint and thought
there is a way of saying upon clay, fire-hardened,
there is a way of saying
a way of saying
“where are you?” across the centuries
a way of saying
“forgive me”
a way of saying
“We were young. I remember, and this, this clay
imprinted with the feet of birds
will reach you somewhere
if it take eternity to answer.”
There were men
like this in Sumer, or who wept among the
autumn papyrus leaves in Egypt.
We are the scriveners who with pain
outlasted our bodies.

From an anthology of poetry written by Loren Eiseley, entitled Another Kind of Autumn  (1977). I made slight changes to better fit the poem to the occasion.

Born in Lincoln, Nebraska, and first educated at the University of Nebraska where he received degrees in both English and Anthropology, Loren Eiseley (September 3, 1907 – July 9, 1977) was a world-renowned anthropologist and a writer of unsurpassed talent. He taught and published essays, poetry and books from the 1940s through the 1970s. During this period he received more than 36 honorary degrees and was a fellow of many distinguished professional societies including the Association for the Advancement of Science, the National Academy of Sciences, the National Institute of Arts and Letters and the American Philosophical Society. At his death, he was the Benjamin Franklin Professor of Anthropology and History of Science at the University of Pennsylvania. For more, visit the Loren Eiseley Society here.


*For a terrific bit of writing by a lawyer who met Wes once when the lawyer was a young man waiting tables, see here.


Some time ago, I banned my law clerks and the pro se staff lawyers, who I also supervise, from using the word “problematic” when writing opinions. Gabi (who is now our chief pro se staff attorney, a wonderful writer and a very funny young woman) gave me an essay on the subject that gently chided me for the fox paw.  That essay is reprinted below.

By the way, the persons referred to in the essay as Laura and Ryan are law clerks or members of the pro se staff. The person referred to as “Kris” is my judicial assistant. The “Marnie Jensen” named in the fourth footnote (****) was then the chief pro se staff attorney who has now gone on to become a partner in AM 100 firm.  Before she came to work for the court, Marnie was one of the lawyers in the case to which the footnote related.

Even though I personally found it both plainly perturbing and petulantly perverse, here is Gabi’s paen to “problematic”:

Problematic: an Essay

Problematic. Few words have such rich and multivalent uses. Surprisingly, there are still individuals in society who object to its use and take for granted the magnificent beauty it brings to language and, in turn, humanity.

A. Sometimes, “Problematic” is an Adjective

When used as a predicate adjective, “problematic” is the perfect subject complement. Take the following example: Laura’s propensity to walk through the office shoeless is problematic given the physiological qualities of the human foot (i.e., over 200 sweat glands*). Of course, Gabi has also been known to roam shoeless, however, this is far less problematical because her feet are always perfectly manicured.**

“Problematic” is also a very useful adjective when a writer must convey the severity of a situation and simply stating “there is a problem” does not pack enough force. For example, imagine an active shooter entered chambers while Kris was away and it was up to Ryan to alert the judge. Given Ryan’s dispassionate and serene nature, he would slowly pick up the phone, patiently wait for the judge to answer, and then state the following: “Well [long pause], there is an active shooter in the building [even longer pause]. Guess we better take cover.” Is Ryan’s response to the situation simply a “problem” or is it “problematic”? I think we all know the answer.

 B. Sometimes, “Problematic” is a Noun

Please do not assume that “problematic” only functions as an adjective, as it is also a very useful noun. Watch me use “problematic” as a noun in the following sentence: Always the skeptical problematic, Judge Kopf has decided to begin his next opinion with, “if the people want to go to Hell, I will help them. It’s my job.”

Indeed, “problematic” is a brilliant noun. The word’s true beauty is that it can be artfully molded into other nouns that are just as grand, such as “prolegomena” and “problemology,” or if you prefer something a little plainer, “problem.”

 C. Judges Love Problematics!

The Justices of the United States Supreme Court have written “problematic” into at least 193 published opinions. In one year alone, the word was referenced numerous times.*** Indeed, the Court has affirmatively determined that all of the following things are problematic: “‘in for a dime, in for a dollar’ hypothetical[s],” Waddington, 129 S.Ct. at 830; “anti-drunk-driving policies,” Virginia v. Harris, 130 S.Ct. at 11; “deep intrusion[s],” F.C.C. v. Fox, 129 S.Ct. at 1820; “chances for success,” Ricci, 129 S.Ct. at 2701; “beliefs,” Uttecht v. Brown, 551 U.S. 1, 18 (2007); “remed[ies],” Hinck v. U.S., 550 U.S. 501, 506 (2007); “redressability,” Massachusetts v. E.P.A., 549 U.S. 497, 545 (2007); “portions,” Ayotte v. Planned Parenthood of Northern England, 546 U.S. 320, 329 (2006); “answer[s],” Republic of Austria v. Altmann, 541 U.S. 677, 715 (2004); “donations,” McConnell v. Federal Election Com’n, 540 U.S. 93, 266 (2004); and, of course, “nude erotic dancing,” City of Erie v. Pap’s A.M., 529 U.S. 277, 295 (2000).

The highly revered federal judges of Nebraska have also been known to employ “problematic” in their opinions. Notably, in Carson P. ex rel Foreman v. Heineman, Judge Kopf adopted a 200-page Report and Recommendation—which, of course, means he adopted every-last word of that Report and Recommendation—that stated, “[s]tatus offenses are acts that are problematic for the juvenile and family, but not illegal if performed by an adult.” 240 F.R.D. 456, 471 (D. Neb. 2007).****

Two other examples of Judge Kopf’s personal fervor for “problematic” can be found in Ziola v. Central Neb. Rehabilitation Services, 2007 WL 3046350 at *1 (D. Neb. Oct. 17, 2007) and Riddle v. Wachovia Securities, LLC, 2006 WL 13101 at *2 (D. Neb. Jan. 12, 2006). Judges Bataillon, Smith Camp, Urbom, Strom, Thalken, and Gossett share Judge Kopf’s love of the word. See e.g., Petersen v. Astrue, 2009 WL 995570 at *3 (D. Neb. Apr. 14, 2009); U.S. v. Kofoed, 2009 WL 2781967 at *2 (D. Neb. Aug. 26, 2009); Rosen v. Astrue, 2008 WL 731605 at *5 (D. Neb. Mar. 17, 2008); Pennfield Oil Co. v. American Feed Industry Ins. Co. Risk Retention Group, Inc., 2007 WL 1290138 at *9 (D. Neb. Mar. 12, 2007); U.S. v. Sanders, 2007 WL 1490483 at *3 (D. Neb. May 21, 2007); and Kirkpatrick v. King, 2005 WL 2180097 at *8 (D. Neb. Sept. 7, 2005).

D. My Dreams

As you can see, “problematic” is a legitimate and useful word. Personally, I have a dream that one day people from every strata of economic life will be able to say “problematic” without shame; a dream that no teacher will ever say to her student “problematic is problematic, so use a different word,” a dream that no judge will ever say to his law clerk “let’s make it a rule that no one will use that word in this office.” Call me a helpless romantic, but I also dream that one day I will wake up next to the man I love, iron his clothes, prepare his breakfast, pack his lunch, and, as he walks out the door, say to him, “See you later, my love. I hope you have an un-problematic day.”

E. Hastily-Written Conclusion

So, let’s remember baby Jesus in his manger, the blessed saints, Vietnam veterans, and all martyrs who served humanity so that we could be free to convert nouns like “problem” into predicate adjectives like “problematic.” Finally, in matters of love, life, and court-opinion writing, Lyle Lovett said it best when he wrote, “It’s a lot easier to write about things that are problematic. Who wants to hear how happy you are?”


*Per foot.

**Do you know what happens when you type “problematical” into WordPerfect?  Absolutely nothing.  The smart people at Corel know that “problematical” is a word, and a good word at that! [RGK edit: Do you know what happens when you type “problematical” into Word? I don’t because only morons use Word which, of course, explains why the AO is pushing that piece of junk.]

***See Waddington v. Sarausad, 129 S.Ct. 823 (2009); Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., 129 S.Ct. 846 (2009); Wyeth v. Levine, 129 S.Ct. 1187 (2009); Harbison v. Bell, 129 S.Ct. 1481 (2009); F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800 (2009); District Attorney’s Office for the Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009); Ricci v. DeStefano, 129 S.Ct. 2658 (2009); and Virginia v. Harris, 130 S.Ct. 10 (2009).

****Fact: Marnie Jensen finds Judge Piester’s Report and Recommendation problematic.


The Judicial Conference and mandatory minimums

Today, the chair of the Judicial Conference Criminal Law Committee wrote in support of Congress’s efforts “to review and ameliorate the deleterious and unwanted consequences spawned by mandatory minimum sentencing provisions.

The press release from the Administrative Office and the letter from Judge Robert Holmes Bell was prompted by a Senate Judiciary Committee hearing on reevaluating the effectiveness of federal mandatory minimum sentences. The Judicial Conference has a long-standing policy of opposing mandatory minimum sentences.

In his letter, Bell also expressed “strong support” for legislation such as the “Justice Safety Valve Act of 2013” that would “help avoid the fiscal and social costs associated with mandatory minimums.”

Aside from my disagreement with the assertion that “cost containment” policies for the judiciary ought to inform the length of supervised release terms, and while not agreeing entirely with all the other reasoning in Judge Bell’s letter, I am strong supporter of doing away with statutory mandatory minimums except in rare circumstances. In short, statutory mandatory minimums impede the drafting of thoughtful sentencing guidelines by the expert body created by Congress to write those guidelines–the Sentencing Commission.

Regarding “cost” and “supervised release” issues, Judge Bell briefly discusses those issues at pages 3-4 of his letter. Note that the judge believes that reducing supervised release terms will save the judiciary money, but he also argues that the risk of reducing prison terms can be ameliorated by supervised release conducted under auspices of the judiciary.  If that is true, one should surely doubt that there will ever be any true cost savings for the judiciary by fiddling around with statutory minimums. By the way, I entirely agree that reducing costs to the Bureau of Prisons (a creature of the Executive branch) by releasing more people earlier from prison is likely to result in a net cost savings to the government as a whole because it is truism that it costs more to house a prisoner than it costs to supervise that same offender in the free world.  That said, on the cost issue, the judiciary cannot preserve the proverbial cake while eating it too. But, my disagreement on this “cost” issue is a quibble in the greater scheme of things. Except for rare cases, mandatory minimums should be abolished.


Cost containment, sentencing and perverse incentives

Yesterday, the Judicial Conference of the United States issued a press release about cost containment as our national government lurches toward yet another October 1 shut-down date. Among other things, that press release contained the following little nugget:

Acting on the recommendation of its Criminal Law Committee, the Conference agreed to seek legislation, such as the Justice Safety Valve Act of 2013 (S. 619), which is designed to restore judges’ sentencing discretion and avoid the costs associated with mandatory minimum sentences. According to the U.S. Sentencing Commission, the average term of supervised release of an offender subject to a mandatory minimum sentence is 52 months, compared to 35 months for an offender who was not subject to a mandatory minimum. The cost of supervising an offender for one month is approximately $279.

I find this statement utterly remarkable. Let’s be clear on what the statement really means. It means that judges should explicitly consider preserving the federal judiciary’s budget by reducing the time that offenders spend on supervision after they get out of prison.

If a sentencing judge is supposed to consider what’s best for the federal judiciary’s bottom-line when sentencing people, haven’t we created a truly twisted and perverse incentive for judges to look out for their own institutional best interests rather than looking out for the best interests of the offender and the well-being of the public?


PS Thanks to Elaine Mittleman for her thoughts on the subject of costs. To be clear, however, Elaine has no responsibility for the thrust of this post.

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