In response to “For Whom the Light Shines” @ Simple Justice

Scott H. Greenfield, a criminal defense lawyer, has another post dealing with 21 U.S.C. §851. You may remember that I posted about Scott’s criticism of some of the things I wrote earlier regarding drugs and violence.  See here.

Mr. Greenfield has written a new and related post entitled For Whom the Light Shines. I reprint a pertinent part of that post because I wish to reply to it. The part of Scott’s post that is relevant to my reply reads like this:

In a comment to post over at Hercules and the Umpire that happens to be about the government’s abuse of 21 U.S.C. §851, a topic that should concern you but probably doesn’t because it’s all federal lawyerly rather than rhetorical, Bryan Gates wrote:

I have two former clients serving mandatory life based on enhancements under 21 USC § 851 for two prior drug felony convictions . Each could have avoided mandatory life by pleading guilty, but would have faced sentences around 25-30 years. The evidence against each was strong.

One the one hand, each should have understood the consequences of the choice they were making. Plead guilty and hope for release sometime in your mid- to late 50′s or go to trial and die in prison. I understand why the prosecutors threatened to file the second prior conviction information if there was no plea. Once you have threatened to do something you need to follow up if you expect to retain credibility.

On the other hand, each of these guys got twenty to thirty extra years of imprisonment because they exercised their right to a jury trial. Out of ignorance or arrogance, they miscalculated the odds of acquittal. Yes, each in each case the government had to expend resources to try them that would have been saved had they pleaded guilty. But does a few days of prosecutorial and court resources used up justify tacking on that much time, if the crime they actually committed did not provided they simply ‘fessed up?

Whether a person admits or denies guilt has long been a factor in the punishment imposed. I’m not sure that much extra punishment is justified. Each will serve about 25 years for the crime he committed, after that they will be serving time for a bad tactical decision.

Bear in mind this is a blog comment, not a post nor a law review article. Its point, cut to the quick, is whether the trial tax of §851, effectively doubling the sentence from merely outrageously long to forever isn’t excessive. And, as Bryan notes, the decision to roll these dice is what more logical thinkers might characterize as a “bad tactical decision.” As a prosecutor once argued in response to me, defendants are presumed innocent, not intelligent.

Judge Kopf responded to Bryan (and again, bear in mind that it’s a comment, not a post):

I have seen that happen as well and I have sentenced several such folks who rolled the dice and are now serving the life sentence I imposed. I felt awful for their lawyers who did everything they could to get them to take the plea offered by the government. I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers who were just wrung out emotionally. Hang in there.

This raises problems on two levels. While Bryan writes about the brutal sentences imposed on his clients, the judge responds with a tummy rub for the lawyer. This happens a lot, when a one-word verdict is returned after a lawyer has left his heart in the well of the court. The judge will express words of comfort about a job well done to soothe the lawyer’s pain. It’s helps some lawyers get through the agony and frustration.

But this also feeds the perception that we’re a self-serving guild, only concerned about ourselves. So what if the lives of human beings, their families, their loves ones, are ruined by a knee-jerk act of Congress abused by an over-powered teeny-bopper in a tie? What about the sad lawyer, for whom real empathy is saved.

Bryan wasn’t seeking a tummy rub, but used the opportunity to ask a hard-line question: Was it really necessary that they be given the slow death penalty because they made the wrong tactical decision? To put it in the converse, isn’t 25 years, twenty-five long years, enough to make the point? Mind you, they weren’t spraying the streets with machine gun bullets killing innocent children, because if they were, the §851 enhancement would be the least of their problems. They were drug dealers.

Judge Kopf gave his answer:

I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers…

Whether this reflects a lack of empathy, humanity or a belief that adding another 25 years to a 25 year sentence just isn’t sufficient to make a judge wonder whether he’s nothing more than a robed executioner for politicians isn’t clear.

Maybe Judge Kopf would feel differently if he had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too. Maybe then he wouldn’t dismiss their slow death so easily.

I have several reactions to Mr. Greenfield’s post.  In no particular order, here they are:

*”Rubbing the tummies” of defense lawyers after they have had the shit kicked out of them in a trial that they knew would end badly resulting in a significantly increased sentence for their clients, gives me comfort. Once in a while, it may also comfort those lawyers. Maybe I should stop the practice, but I doubt I will.

*Criminal defense lawyers, like prosecutors, have an emotional “shield.” I don’t. By this I mean that the role of a federal prosecutor or a federal defense lawyer allows, in fact demands, that the lawyer earnestly believes in the  “justice” of his or her cause. I don’t have that luxury. At least as I envision my role, I am supposed to be open and agnostic. Moreover, because I serve at the trial level, I am also supposed to be an applicator of a complex series of rules that one hopes in the very long run will produce some sort of “justice.” There is no reasonable expectation that “justice” writ large can be served on a daily basis. In fact, it is rarely my proper role to be a judicial policy maker. That’s for the big boys and girls. As I once told a federal public defender, “I don’t do justice, I do law.” Most of the time, I wouldn’t know “justice” in the metaphysical sense if it bit me in the ass.

*Sentence an aging crack whore, have her hang herself in the cell adjacent to your courtroom right after you have done so, and then ask yourself how much empathy you feel for the rat bastard who knowingly feed her addiction. Do I have empathy for the self-proclaimed”gentle”drug dealer I sentenced to life in prison, who directed his crew to sodomize a teenage girl with motor oil ’cause she didn’t pay her drug debt, and who beat others with baseball bats or pipe wrenches when the unfortunates threatened to snitch or failed to pay their bills? No, I don’t. But what about great judges like Bennett or Gleeson or Weinstein, you say. Haven’t they overcome similar experiences and remained able to seek “justice” above all else? Sure, in a manner of speaking. But, they envision their judicial roles much differently than I do. They earnestly believe that their judicial role is quite broad. I earnestly believe that my judicial role is quite narrow–go ahead, if you like, and murmur something about the German judges of WW II. Indeed, it may also be true that Bennett or Gleeson or Weinstein are simply better human beings than I am, but only the Gods, and not criminal defense lawyers, get to judge me on that question.

*I don’t lack for conviction and I am no right-wing nut job despite the fact that a Republican President appointed me. I have prosecuted a Republican state attorney general in an impeachment proceeding. I have dissented, while sitting by designation, when the Eighth Circuit said the First Lady, Mrs. Clinton, lost her attorney client privilege because she spoke to the White House counsel in the presence of her personal lawyer. I have declared unconstitutional state and federal “partial-birth” abortion statutes, both of those decisions have ended in the Supreme Court and serious personal consequences have ensued. I have written a variance decision based upon post-offense rehabilitation, later reversed by the Court of Appeals, favoring a young black woman, who I originally sentenced to life in prison for a “crack” conspiracy despite the fact that she had no criminal history. After the reversal, I publicly urged two Presidents to commute her sentence. So there!

*Section 851 enhancements pose a huge problem for the judiciary as pointed out by Judge Bennett and later Judge Gleeson. I do have sincere empathy for the defendant who get’s hit with a section 851 enhancement because of a dumb decision or merely because the defendant insisted upon a jury trial. But, discussions of empathy and generalized notions of “justice” obscure the legally significant question. The important legal issue is how to balance the Executive’s power to charge, and the federal trial judge’s responsibility to impose a sentence that is not grossly disproportionate to other sentences of similarly situated individuals. See here. Being a fan of rules, I am beginning to develop some ideas about how federal trial judges could practically strike the proper balance by using court rules or standing orders to require the Executive to explain the basis for seeking such enhancements. We shall see if my ideas bear fruit.

*The post to which I reply ends this way: “[I]f [Kopf]] had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too[,]  [m]aybe then he wouldn’t dismiss their slow death so easily.” After reading this conclusion I was mad and I wanted to scream “that’s really unfair and you know it.” After some reflection, I will stifle the shout. In truth, Mr. Greenfield’s point is a good but disturbing reminder that I sentence human beings and not abstractions.


17 responses

  1. Well, that is one of the more interesting exchanges I have read in awhile. I am unsure if there is a good answer on the 851 enhancement issue, but it seems to me that the court does have the ability to address this via an order that requires such information notices to be filed well in advance of trial, even in advance of when the defendant might be required to make a decision about whether they wish to have a trial. I am not of the belief that it is necessarily proper for a prosecutor to use the threat of an 851 to induce a plea. Prosecutors have a good deal of discretion about what to charge and not charge, but at some point the use of a threatened charge as a means to induce a plea becomes too much of a burden on a defendant’s constitutional right to maintain innocence and exercise his or her right to a trial. I also think there are ethical issues for prosecutors that are significant because it seems ethically borderline for a prosecutor to have a policy or practice of seeking 851 enhancements based upon whether a defendant does not waive their constitutional jury trial rights. The DOJ Manual, I don’t believe even includes whether a defendant is desiring a trial as a factor to be considered in whether to file the notice. I think a policy or order from the court that set a very early deadline for an 851 information notice would be a good way to avoid this, but it could also lead to the government filing such notices with greater frequency.

  2. I will not “stifle the shout.” RGK, your candor, self-reflection, deep thinking, and fidelity to the “role” you see for youself as an INDEPENDENT judicial officer is worthy of the highest admiration and respect – and for more than 20 years you have had my unyielding admiraton, repect and adoration. If there is a more thoughful, caring, hardworking, fair and just to the core, federal judge in the country I have never met her. There is no “one” playbook or job description for what we do. But every district court judge I know is working in the utmost good faith to do the right thing. The fact that we disagree on occassion, or for some, frequently, is of no moment. What’s important is that we all take our oath seriously and labor in the same cotton rows of justice to strive to achieve justice in all that we do. If there was one right answer for each decision we could be repleced by machines. It is precisely because there is no “one” right answer that the independence of the federal judiciary reflects MLK,Jr. famous pasage: “the arc of the moral universe is long but it bends towards justice.” But the thing of it is it takes all our hands with all our varying views to bend the arc towards justice because non of us have a lock on exactly what justice is — but collectively we move in that direction. I am often proud to call you my firend, and often deeply apprecitive for all your help, but never so proud to be a colleague as in reading your brutally honest post this morning.

  3. “Maybe Judge Kopf would feel differently if he had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too. Maybe then he wouldn’t dismiss their slow death so easily.”

    You ought not get mad or scream at this. It is rhetoric, not at all dissimilar from the kind of rhetoric SHG has criticized you for employing. I imagine the sentence was conceived on the treadmill or in the shower and followed by, “I just thought of the perfect way to end my blog post!”

    I assume SHG would not mind my pointing this out since, like me, he appears to be a fan of deconstructive criticism. (As an aside, if I were a criminal defendant, I would want a deconstructionist sitting next to me at the defense table. SHG’s ability to turn an author’s words against him is undoubtedly what makes him an excellent defense attorney.)

  4. …the use of a threatened charge as a means to induce a plea becomes too much of a burden on a defendant’s constitutional right….

    A small question from an ignorant Texan about this: apart from the constitutional violation aspect, how is such a threat not an (hard to prove) instance of witness tampering? It’s an overt attempt to coerce the central witness to a case (albeit one not required, overtly, to testify) from changing the core of his testimony, “I didn’t do it,” to testimony more to the prosecution’s liking: “I did it?”

    Now a couple of comments on a couple of the Judge’s responses.

    1) Sentence an aging crack whore, have her hang herself in the cell adjacent to your courtroom right after you have done so, and then ask yourself how much empathy you feel for the rat bastard who knowingly feed her addiction. usw

    Indeed. The central thesis of the beef which this response answers seems to be that drug crimes are, of necessity, victimless. They are not. Not even close.

    2) [I]f [Kopf]] had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise….

    Go ahead. Have that dinner one time. Invite Mr Greenfield along. Thinking men will see the damage the done these others, the ruination of lives that might have been, has already been done. It was done by the defendant through his own actions flowing directly from his own decisions to engage in the behaviors for which he has just been convicted. No judge’s sentence changes that. Trying to blame collateral damage from a defendant’s activities on any third party is to…misunderstand who’s responsible for what.

    Eric Hines

  5. Over at the courthouse, lawyers often talk about “rolling the dice,” i.e. taking a case to trial. I use that expression all the time. For me the dice expression reflects that, in some cases, lawyers are not very accurate at predicting whether a jury will convict or not.

    The expression does not say much about how we view invoking the right to have a jury determine the issue of guilt or innocence. When a defendant invokes his right to trial, he is really saying, “Listen to my side of the story,” not rolling the dice. I try to remember that when I am trying to decide exactly how hard to lean on a client to plead guilty.

    I got a lot out of reading the reactions to my comment. I like the fact that most of the writers seem to express an honest reaction. So much of our public discussion these days consists of spewing out poll-tested, freeze-dried talking points, I find this a welcome refuge.

  6. Sunena, I know SHG quite well, and the sentiment is not mere rhetoric: he believes that it should be uncomfortable—painful, even—for a judge to sentence a defendant to a slow death sentence. Few people (some would say “none”) are irredeemable; it’s not “unfair” to wish that federal judges confront the essential humanity of the people they are sentencing.

    Judge Kopf took Greenfield’s point, I think, in the spirit in which it was intended.

  7. Sunena,


    “Deconstruction,” as I understand it, is a method of reading the written word based on the assumption that language is inherently unreliable. The term is derived from the thinking of Nietzsche and Heidegger. I write this blog because I think words do have meaning, although I confess that I am almost always unable to find that meaning with the precision I long to achieve. I don’t think SHG is a deconstructionist either. On the contrary, the nihilism required for deconstruction would drive a criminal defense lawyer, with a soul, insane.

    All the best.


  8. Bryan,

    I agree that “rolling the dice” can be a pejorative. There is nothing intrinsically wrong with a guilty criminal defendant insisting upon a jury trial. After all, the Constitutional right to a jury trial doesn’t require anything other than a demand for one.

    Thanks for your comments. They have been illuminating.

    All the best.


  9. The Other Mark,

    I especially agree with your first sentence. Words do have meaning, and sometimes, as you point out, they are uncomfortable and even painful. That is because words can convey a truth.

    All the best.


  10. To the Other Mark,

    I maintain that references to “tummy rubs” and “dinners with defendants” are rhetorical devices aimed at readership, but I’m not an English professor so what do I know!

    As for the substance of this debate, my two cents are these: None of the judges I know are autobots. All of the judges I know are human beings capable of a wide range of emotions, including empathy. Thus, I believe it is unfair to urge, counsel, or challenge a federal judge to have dinner with a defendant so that he or she may be more inclined to sentence with conscience. However, in all fairness to opposing viewpoints, my opinion is informed by three (probably naive) assumptions that I have about judges: (1) I assume most judges, as human beings, often do feel pain as a result of their sentencing decisions; (2) I assume most judges, in the interest of self preservation and in the interest of preserving the system as a whole, must to some extent harden themselves to the plight of others by simply sentencing people according to the guidelines handed down to them; and (3) I assume most judges will deviate from the guidelines when they believe imposing a sentence within them is unconscionable or obviously unfair given the facts of a particular case or the circumstances of a particular defendant.

  11. Though I understand that in the context of this particular discussion about Sec. 851, no deviation could save a defendant from his or her slow death sentence. And that is sad indeed.

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  14. “*Sentence an aging crack whore, have her hang herself in the cell adjacent to your courtroom right after you have done so, and then ask yourself how much empathy you feel for the rat bastard who knowingly feed her addiction.”

    So you drove someone to commit suicide and you blame someone else?

    “Most of the time, I wouldn’t know “justice” in the metaphysical sense if it bit me in the ass.”

    When you are utterly incompentent shouldn’t you find another line of work?

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