Memo to Scott Greenfield: Now is not the time to attack Smokey the Bear

Like my affection for the Sentencing Reform Act (a part of Comprehensive Crime Control Act of 1984, Pub.L. 98–473, S. 1762, 98 Stat. 1976, enacted October 12, 1984), the Sentencing Commission and the Guidelines regime, I love Smokey the Bear. I had my own Smokey when I was about 8. My damn brother threw him into the bath and since my Smokey was stuffed with straw he began to smell just like a real bear.* My Smokey soon went missing, along with the foul odor flowing out of him like a bear on beans.

However, I did not know then that, like the Sentencing Commission, Smokey was the product of an Act of Congress that dealt with criminal penalties. See Smokey Bear Act of May 23, 1952, P.L 82-359, Ch. 327, 66 Stat. 92;18 U.S.C 711; 16 U.S.C. 580p-2 (“Whoever, except as authorized under rules and regulations issued by the Secretary of Agriculture after consultation with the Association of State Foresters and the Advertising Council, knowingly and for profit manufactures, reproduces, or uses the character ‘Smokey Bear’, originated by the Forest Service, United States Department of Agriculture, in cooperation with the Association of State Foresters and the Advertising Council for use in public information concerning the prevention of forest fires, or any facsimile thereof, or the name ‘Smokey Bear’ shall be fined not more then $250 or imprisoned not more then six months or both.”).

With the foregoing in mind, I now turn to Scott H. Greenfield (Simple Justice) directly and his post entitled The Fallacy of Sentencing Deference. In that post, and in a powerful style unique to SHG, he takes me on for my post entitled Perhaps it is chemo fog, but I’m getting soft on crime. In that post, I strongly endorsed doing away with mandatory minimums, but also wrote that: “I always have been, and remain, a strong supporter of the Sentencing Commission and the Guidelines.”  That Guidelines stuff set SHG’s teeth to gnashing.

SHG wrote:

Of course, there is no sound basis for the fact that the Guidelines were crafted at the outset around mandatory minimums, skewing from the outset the perception of proper sentencing and thereafter producing a generation of absurdly severe sentences to form a data set of normalcy for imposing life plus cancer on defendants.

So who needs mandatory minimums anymore? They served their purpose, as new federal judges never practiced law a day in their lives when sentencing took into account the hunger in a child’s stomach compelling a mother to carry a bag with ten kilos of heroin across a border, who think a sentence of 121 months was handed down to Moses on Mt. Sinai.

But for judges with 22 years experience molding the lives of children of uneducated parents with little expectation of feeding them because IBM wasn’t hiring minorities from Fort Washington that day for executive vice president positions, falling back on the magical voodoo of the commission made it perfectly acceptable to impose sentences of decades, lifetimes, for hard, bad choices, for the frail-minded, for the traumatic brain-injured from a few clubs to the head during their youth, for the angry, the miserable, the hopeless, the cynical. After all, the Sentencing Commission said this was the correct sentence, and they must know best.

Thus, the court defers. And loses no sleep at night knowing that the magical voodoo of the United States Sentencing Commission is right and just.

(Emphasis in italics by Kopf.)

Let me first say two things about SHG or his post without intending to curry his favor. (There is no real chance of doing that anyway, and we both know it. However, others might not.) As I have said before, and now say again, I think SHG would make a terrific federal district judge. I would be honored to have him as my colleague.

Furthermore, the most powerful of Scott’s criticism is the ending sentence to his post. Summarized, it this: federal district judges who are believers in the Guidelines regime (like me) can, and sometimes do, fool themselves into ignoring the human carnage that they (and they alone) impose by the draconian sentences fairly frequently called for under the Guidelines. By such self-delusion, judges do terrible harm and they do so without any legitimate excuse.

Now, I want to address SHG directly on several other things. The reader can tag along.

Scott, I assume you abhor unchecked forest fires and concede that all of us should band together to do everything we can to put them out. But because you practice criminal law in New York, because you drive a really neat classic sports car (that I sincerely covet)** and because you are, above all else, a realist, I assume that you also believe that Smokey the Bear is a silly creation of 1950 era advertisers that serves no useful purpose.

But, here is my point:  Statutory minimums are like raging forest fires. We absolutely must put them out. The Sentencing Commission is like Smokey the Bear. If we have to kill him, we can do that later. Let’s not fight about that now.

I deeply fear that such arguments will distract from the most important message that you and I both agree on: Death to statutory minimums. I can just hear the refrain now in Congress by rabid Republicans nut cases:  “They say they want to do away with statutory minimums, but don’t be fooled; this is really all about liberals, criminal defense lawyers, Holder and Obama killing the Sentencing Reform Act and the Sentencing Guidelines while letting all the predators out of prison.”

SHG, I bet you are typing a response now. It has something to do with me being a chicken shit unwilling to engage you on the merits of the Guidelines. Stop! If you really want to argue about the Guidelines, I am willing.  After all, you are far more media savvy than I am. You might be right that nothing you say or I say will distract the dumb asses in Congress.

So, if you conclude that now is the time to fight about the merits of the Guidelines regime, let us have at it. But please let’s avoid generalities. I propose that we start with average and median sentence lengths and sentencing disparity. If you decide that now is the time to have that debate, and agree that we should write first about average and median sentence lengths and sentencing disparity, you go first and I will follow.

What say you?

RGK

*Kip, assuming you read this from your home near Cleveland while contemplating other nasty things to do to me from that far away, I am still really pissed off at you for turning Smokey the Bear into Stinky the Bear, as you laughing called him. This remains true despite the fact that Mom loved you best and gave me all sorts of excuses why you should not be staked to a pine tree and burned to death in a raging forest fire. Bastard!

**SHG’s classic.

Photo credit: Photo by RGK of image on Scott's Twitter page.  Fair use claimed.

Photo credit: iPhone photo by RGK of image on Scott’s Twitter page. Fair use claimed. (I have no earthly idea what that claim means, but it sounds good and legal.)

6 responses

  1. I might sur-reply that you started it with you inclusion of the caveat, but that would be ungracious of me. So I won’t. There will no doubt be another opportunity for discussion of the subjects, and the most immediate need is to put out that damn raging forest fire.

    So I happily demur to Smokey.

  2. Pingback: The Fallacy of Sentencing Deference (Update) | Simple Justice

  3. SHG,

    Thanks. Frankly, I am relieved.

    All the best.

    RGK

    PS I see what you mean about the caveat. I don’t think that was my intention but I see your point.

  4. Pingback: Very important correction « Hercules and the umpire.

  5. Judge, I remember about 10 years ago (I had been on the bench 7 years) and a new judge was elected, 20 years my senior (he’s dead now) who was going to “Stamp out drugs.” One of Alabama’s few mandatory sentence minimums is for selling drugs within 3 miles of a school or housing project–5 years minimum no early release. The entire circuit is within 3 miles of a school or housing project. My D.A. and I just use it to bargain with and had never sentenced anyone to it. The act is so onerous that there need be no nexus between the sale and the resident of the housing project or the school. We’ll the new judge was off at a conference and I took his criminal docket one day. I took probably 25 felony pleas that day plus mine. It was so hectic I wasn’t paying a lot of attention to the details of the offense. When I get to the allocution, he says “I just think 5 years with no early release is a long time for selling 3 Valium in a bar downtown, when I don’t have a record.” What, I said. He repeated this. I pulled the file and sure enough he was pleading under “the school zone/housing project enhancement” to distribution of a control substance. That would have earned him 3 years probation in my court, possibly a good behavior with it being then nol prossed. After he said: “I just think 5 years with no early release is a long time for selling 3 Valiums in a bar downtown, when I don’t have a record” I said “I do too, I am not taking this plea, you all can negotiate something reasonable or send it back to Judge ____.” Well it went back to Judge ___ and I always regret not going more to stop that injustice. But in spite of a ruse of sentencing guidelines here now, we can still do justice.

    Judge Rusty Johnston
    13th Judicial Circuit
    Mobile, Alabama

  6. Judge Rusty,

    And of course the federal statutory minimums are more numerous and even harsher. Statutory minimums are a cancer masquerading as a cure.

    All the best.

    RGK

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