If you were a federal judge, what would you do without Scott Greenfield’s “Sentence-O-Matic 1000?”

At his blog, Simple Justice, Scott Greenfield artfully takes apart what he calls “The Sentence-O-Matic 1000.* That is, Scott skewers the idea that one can use a “machine” like the Sentencing Guidelines to sentence people. Yet he realizes that any sentencing system that is loosey and goosey invites arbitrary treatment. Scott ends his analysis with these thoughts, “So we’re back to the old adage, sentencing by whim of an individual judge is the worst system possible, except for all the others. Or as Mencken said, ‘for every complex problem, there is a solution that [is] quick, easy and completely wrong.’ I hate the capriciousness of judicial sentencing. I dread the consistency of the Sentence-O-Matic 1000 far more.”

In this post, I thought it might be “fun” to give readers of this blog an opportunity to sentence someone without the dreaded “Sentence-O-Matic 1000.”  As a teaching technique, I once did this with some Assistant Federal Defenders and CJA panels members, and it turned out to be a useful exercise or at least I thought so.

Assume there are no longer Sentencing Guidelines–the “Sentence-O-Matic 1000” is kaput. As the judge, you must rely only upon the following “law,” that is: (1) the statutory range–in this example, a “crack” conspiracy where the range is 10 years to life; and (2) the factors set out in 18 U.S.C. § 3553(a). After a jury found the defendant “Jimmy” guilty of a conspiracy to possess with intent to distribute more than 500 grams of “crack,” here are your sentencing facts:

  1. Jimmie had at least two prior felony drug convictions.
  2. Jimmie ran the crack conspiracy with the help of his brother Jerry. At least five others were also involved in the business.
  3. Jimmie told the police that he was a “kind dope dealer,” but that was not true. At Jimmie’s direction, Jerry sexually assaulted, physically assaulted and sodomized Laurie with motor oil for failure to pay a drug debt and threatened to kill her if the debt was not paid by that evening. Both Jimmie and Jerry assaulted Odell with a baseball bat as part of the conspiratorial activity.
  4. Jimmie bailed out a minor female from juvenile detention and she became a coconpirator selling crack for the business.
  5. Jimmie obtained and submitted a false affidavit from a coconspirator as a defense to the prosecution.
  6. The conspiracy involved between 1080 and 1419.67 grams of crack. Jimmie personally cut and packaged some of it.

Now, understanding that you must sentence Jimmie to at least 10 years in prison, apply section 3553(a) to the foregoing facts. Go ahead, you sentence Jimmie. So you can’t cheat, now, please, write down the prison sentence you imposed. After you have written your prison sentence for Jimmie, look and see what sentence I imposed under the Guidelines by reading United States v. Johnson, 169 F.3d 1092 (8th Cir. 1999). As an aside, Judge Murphy wrote the opinion for the Court of Appeals–why does that matter?

What are your thoughts?  If I were to tell you that today I would impose the same sentence without applying the Guidelines, and relying only upon § 3553(a), would you think my prison sentence just?

RGK

* For the “Super Bass-O-Matic ’76,” a machine that makes a hard task easy and that is a first cousin to the “The Sentence-O-Matic 1000,” see below:

45 responses

  1. That’s a very curious hypothetical you’ve offered. All aggravating, no mitigating factors. All taken as true, without any allegations contested. Even Jimmie’s claim of being “kind” disproven, adding that he’s conclusively a self-serving liar to the mix of considerations. This one-dimensional character is, from the given facts, purely evil. It certainly simplifies the sentencing process to have such a purely evil defendant.

    Is that how the defendant appears from the bench? Is he merely the embodiment of crime without any humanity, any redeeming virtues whatsoever? If so, it makes sentencing quite simple. But from the defense table, defendants never look quite so evil. No human being is solely the sum of his worst conduct.

  2. SHG,

    Perhaps Jimmie was evil, that is, one dimensional. Or,perhaps the Guidelines forced the very excellent public defender, during a two-day evidentiary hearing, to focus on the aggravators because they would drive the sentence. By the way, I took the sentencing facts from Judge Murphy’s opinion. I did not gin them up.

    What do you make of the idea that I would impose the same sentence now even when freed of the “Sentence-O-Matic 1000?” Indeed, section 3553(a) gives me a bullet-proof method (“template” in Professor Berman’s words) for doing so.

    All the best.

    RGK

  3. Given only what I’ve read and having no exp whatever in law, judging etc., I’d throw the book at the guy, maybe 40 yrs or so. I’d hope (reasonably, I hope) that during that long period the individual c/b lead, prodded, whatever into virtue, an obvious tall order requiring. Prayer and protracted practical and tangible help. Of course, I realize you legal types consider religion superstition or _______ (insert your attitude here) but there’s (obviously) no other way. Maybe this would breach you (all’s) arrogance and ‘sophisticatio’ but, more probably, not.

    >

  4. I’ll bite – 14 years.

    Factors under 18 USC 3553(a)…

    (1) The circumstances of the offense are aggrivated by 1,3, and 5, so that tends to add time to the minimum sentence.

    (2)(A) The seriousness of the offense is high, but the punishment of 10+ years is well into the range of what is imposed for serious violent felonies. So this does not push the sentence up.

    (2)(B) A sentence of 10+ years is not the kind of thing that anyone says you got off easy with, so this does not push the sentence up.

    (2)(C) I would like to know the age of the defendant at the time of sentencing for this factor. There is a strong correlation between dangerous behavior and age. If he is 19, I may treat it differently than if he is 35. But for a relatively small group of conspirators, there is little reason to expect that there will be a conspiracy to return to in 14 years. This may depend as well on whether Jimmy’s brother has been prosecuted for the much more severe crime described in the factors.

    (2)(D) As you discussed on the blog previously, for rehabilitative purposes, sentences should max around 5 years. So this tends to pull down the sentence to be imposed.

    (3) No other kinds of sentence are reasonably available. Probation isn’t happening here, nor is a fine.

    (4)(A) We said we’re ignoring the guidelines here.

    (4)(B) Not applicable from the facts given.

    (5)(A) and (B) Again, ignoring guidelines.

    (6) No evidence is in the record to indicate what would be a sentence that is disparate.

    (7) There are no particularized victims of the crime for which the defendant has been convicted who could be given restitution.

    Regarding your sentence imposed, I would ask you this. What threat to society will Jimmy likely pose when he is 70?

  5. Given only what I’ve read and having no exp whatever in law, judging etc., I’d throw the book at the guy, maybe 40 yrs or so. I’d hope that during that long period the individual c/b lead, prodded, whatever, into virtue, an obvious tall order requiring prayer and protracted practical and tangible help. Of course I realize you legal types consider religion superstition or _______ (insert your attitude here) but there’s (obviously) no other way. Maybe this would breach you (all’s) arrogance and ‘sophistication’ and possibly even instill in you all some desire to cultivate virtue – courage, character etc. but, more likely, not.

  6. Opinions are funny things, tending to recite the fact (and recite them as “facts,” beyond all dispute) that serve to support the conclusion and omitting the “irrelevant” details that muddy the waters. Sometimes, one struggles to read an opinion and see their case in it at all. Sure, the defendant’s name is at the top, but nothing else about the opinion is at all familiar.

    That you would have arrived at the same sentence as the guidelines is a fact of life. If that’s what you concluded, after weighing all the input, so be it. The absence of the Sentence-O-Matic 1000 doesn’t assure either side of a more favorable outcome, but rather the opportunity to present all the information that might go into the decision in any particular case, and do so as persuasively as we can muster.

    All we can hope for is the opportunity to persuade the judge. Once done, it’s in the judge’s hands. At that moment, we can only hope that the judge will be fair.

  7. Peter H.,

    Thanks for biting.

    As for Jimmie turning 70 in federal prison, that is a real problem. But, if he is evil, perhaps “just deserts” is an appropriate rationale. Or, maybe, general deterrence.

    All the best.

    RGK

  8. apethink,

    Regardless of my personal views about religion, and while I cop to being arrogant at times, I don’t think of myself as sophisticated. Far from it. I do think of my self as practical.

    Nor do I discount the fact that religion can play a force for good in prisons and elsewhere. Teaching virtue, courage and character whether through the Bible, the Torah or the Quran is absolutely fine with me as long as the student is a willing pupil.

    All the best.

    RGK

  9. Peter H.,

    One other question for you since you are like a bass going after a worm, what would it have taken to get Jimmie to a life sentence in your view by applying only the section 3553(a) factors?

    All the best.

    RGK

  10. Conviction for a much more serious crime.

    Running a small drug operation is a serious crime, and 14 years is a long sentence. Life sentence is for serious violent felonies, almost always murder. While there is an instinct to sentence based on the conspiracy to commit rape, that’s not the charge which was proven. If the allegation had been conspiracy to commit rape in furtherance of a drug conspiracy, and the jury had convicted, I might impose life.

    But as it stands, the violence allegations are unproven allegations, no element of the crime for which the jury convicted included violence. They can show “this is a bad dude who needs more than the minimum,” but I don’t go far above the minimum because the 10 year minimum is already very high for a crime with no necessary element of violence. If you gave me no mitigating or aggravating factors whatsoever, I would want to impose a sentence of roughly 3-5 years, but would be forced to 10 years by statute. The aggravating factors added about 10 years, getting me to where I was.

  11. I think we have differing views on the marginal value of sentence years as a deterrent.

    In economic studies of human incentives, there is a mathematical construct called the discount rate, which measures the extent to which we value present things versus future things. So for example, an annualized discount rate of 0.05 means that I am indifferent between having $95 today and $100 a year from now. This effect compounds, so if the time period in question is 5 years, I would be indifferent between $78 today or $100 5 years from now. When I get to 20 years from now though, I’m only discounting by $2/year or so; only 40% of the incentive effect from the first year.

    I think this way of looking at incentives also applies to non-monetary things. Essentially, people are strongly motivated to avoid the first year in prison, somewhat less motivated to avoid the second, somewhat less motivated to avoid the third, and so on. By the time you’re past 20 years, the difference in incentive from a 20 year sentence to a 21 year sentence becomes almost trivial, even though the difference between a 1 year sentence and a 2 year sentence is very much nontrivial.

    This paper provides an interesting theoretic economic discussion of sentencing and discounting.

    http://www.law.harvard.edu/programs/olin_center/papers/pdf/213.pdf

  12. Life is well within the range of reasonableness given the lack of discussion of any mitigating factors.

  13. Life! as other commentators have stated – all adverse factors; too bad you can’t channel Judge Roy Bean and hang’em!

  14. Thirty years was my quick response, but I would take into account his age and parole possibilities. Thirty seems almost a life sentence but still leaves hope-for him and society.

  15. My sentence was 30 years, but I don’t see a life sentence as unreasonable on these facts. I don’t see any real hope for redemption of a violent, drug-selling rapist. If he does undergo some kind of extraordinary transformation, he could always seek a commutation.

  16. RGK,
    I came to the same result you did. What clinched it for me was the two prior felony drug convictions and his use of violent, sexual force to continue the purposes of the crack ring. That was enough to shock my conscience, and he directed his brother to do this. I did not consider the fraud in my analysis because that had nothing to do with his actual conspiracy. That is a separate crime the U.S. Attorney’s Office can prosecute if they wish. The juvenile was unfortunate, but less important, because that is probably to be expected with a conspiracy. It weighed against him, but less so than the sexual assaults and the two prior felonies. This is a man that knew better and chose to exercise violence anyway in pursuit of illegal narcotics. I considered factors (a)(2)(A)-(C) most significant in this case.

    As an aside, this would be life with parole, if I had the option. I do not believe that life without parole would have been appropriate in this situation because he is not without hope. I could see him turn around and make something of his life, and I would not take that away from a human being without good reason, such as that they person could never reintegrate into society. I see a possibility for him to regret his actions and change his ways. He should not be denied that ability.

    _SLS

  17. Peter H.,

    Thanks for article on discounts. I have read it.

    I am sure that there is a good deal of truth to the conclusion that over time the marginal value of year in prison as a deterrent to the convicted offender shrinks. But, I don’t see in the article (but perhaps I am blind) an explanation of how the discounting theory could be applied to other potential offenders (general deterrence). Explain what I am missing, please.

    All the best.

    RGK

  18. Life sounds good to me.

    First of all, on the point that the defendant was not charged with sexual assault or aggravated battery, this is not relevant. Those acts were conducted in furtherance of the drug sales conspiracy, and the evidence of those acts was relevant and properly admitted, as the court of appeals indicated. Therefore, the despicable acts of sodomizing a victim with transmission fluid, forcing her to have oral intercourse, threatening to kill her, and beating up another man with a baseball bat, all because they owed money to the defendant for drugs, were all part of the drug conspiracy. As such, this evidence was properly considered during sentencing.

    The statute provides that one of the sentencing factors is “the nature and circumstances of the offense.” Clearly, then, the acts above pertain to the nature and circumstances of the offense.

    Another factor: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” I would call sodomizing a woman and taking a baseball bat to someone a serious offense. Just punishment? Absolutely.

    I could go on, but I won’t. Funny thing is, I think that the majority of violent crime in America, (and perhaps throughout the world) would vanish if we legalize drugs. The fact that they are illegal deters very few people. Making drugs illegal simply creates monumental incentives for violence, both on the part of the users, and the dealers. Remember prohibition? How did that work out for us?

  19. So discounting theory is a general theory of how people view time lagged things, and I think it is perfectly applicable to deterrence.

    Let me give an example that’s a little mathematical.

    Suppose we have a budding criminal named Joey who really wants to get rich quick and is pretty sociopathic – only cares about his net benefit to himself.

    Joey is deciding between doing a stickup of a few banks in town, or peddling some crack and recruiting some friends to it. Joey knows that in the not distant past, a stickup artist at banks named Shon Hopwood got 12 years for it. And he knows that around the same time, Jimmy got life in prison for running a crack conspiracy.

    Joey figures that he can net the same as Shon did from the bank robberies, about $200k. And can net more, maybe $500k, from the drug dealing. Joey also figures the chance of getting caught is about the same for each.

    So the question is, will the extra years push Joey away from crack dealing and towards bank robbery?

    Let’s give an example where Joey has a really low discount rate (2%), and a really high discount rate (15%).

    Let’s further assume Joey values not being in prison at $50k/year in current dollars and figures chance of being caught at 50% (so effectively 25k/year in current dollars)

    For the low discounting rate, the cost (i.e. deterrent) of prison on the bank job is the sum of 25,000+25000*1.02+25000*1.02^2 … 25000*1.02^11. That sums to a deterrent cost of $269,671, more than the $200k payoff, so Joey won’t rob the bank.

    The cost of prison on the crack dealing I’m gonna assume at 50 years, since all men are mortal. The deterrent cost for that at the 2% discount rate is $801,301, more than the $500k payoff, so Joey won’t want to do either.

    But if he’s determined to do one, he’ll rob the banks, because years 13-50 add almost $500k in deterrent above what the first 12 years had

    Now, let’s look at the high discount rate. The deterrent over 12 years is $155,842, and over 50 years is $191,489. Now all of a sudden, instead of having almost $500k of deterrent value, years 13-50 only deter by about $35,000, barely more than the first year deters by. Now Joey is gonna deal crack, even though the sentence is much harsher, because he cares more about the here and now than about what happens in 15 years.

    I quantify the deterrent in dollars to equate it to the payoff of the jobs, but in reality it’s not just a dollar thing. People value the present more than the future, even in non-monetary thinking. Non-money utility functions would produce the same result.

    If we assume that criminals are, on the whole, strongly biased towards the present versus the future, and have high discount rates, it’s unlikely that we would expect sentences past 10 or 15 years to have much extra deterrent effect on would be criminals. If you discount at 15% a year, things 20 years in the future are only 6% as valuable to you as things today. The math is (1/(1+discount rate)^years, so (1/.1.15)^20 = 0.061.

    None of this requires that criminals do the math of course – algebra is not the strong suit of most defendants. Time discounting is something people do naturally and automatically. Human brains emphasize the present and de-emphasize the future. The mathematical model of discounting has been a pretty robust approximation of human behavior with regard to time spans. Just like you don’t need to be able to calculate the parabolic arc of a baseball to catch it, you don’t need to calculate the NPV of a future cost to discount it to the present.

  20. One question I’d like cleared up before answering is whether he was charged, convicted, and sentenced for these other crimes, in which case he probably ought to be sentenced for those separately.

    If he wasn’t tried and convicted of them anywhere, he shouldn’t be sentenced for them under the drug charge. Using sentencing discretion to sentence someone under one statute for other crimes he has never been tried for, much less convicted of, would be a pretty greasy thing to do.

    A complication that bothers me, and probably you too, is that some of these are not federal crimes, so maybe he can’t even be tried for them – or can you exercise supplemental jurisdiction?

    OK, I need this briefed a little more, couselor, before I can decide!

  21. I think our difference is that you’re taking it as a given that Johnny did in fact participate in a conspiracy to commit that brutal sexual assault, and that the assault in fact took place. Jimmy asked for a jury trial, and that jury didn’t find those allegations to necessarily be true. They didn’t find them false either, they just weren’t asked. But in our play at home USDJ game, I can’t just assume the allegations are true. If that’s how the game is played, then it allows the government to use a single conviction as a nose under the tent to punish for whatever it can suggest is true, without the facts being found beyond a reasonable doubt.

    Judge Koph’s proposition does assume them to be true, but I think that’s not the just way for the game to be played. If you want to punish Capone for the murders you have to charge and convict him of the murders. I don’t doubt that Jimmy probably did orchestrate that brutal act, but my suspicions, even based on admissible evidence, are not the same as a conviction.

    If the government wants the bulk of Johnny’s punishment to be based on violent conduct, then the government should charge him with that conduct, and convince a jury to convict him of that conduct beyond a reasonable doubt.

    The violence can factor into the sentence, as it shows the crime to be more depraved and the criminal more dangerous. But it cannot become the basis for punishment for its own sake, since it is not the crime of which Jimmy was convicted.

  22. Judge:
    My first reaction is that I would have sentenced the defendant to life (anyone so craven that they would sodomize a human being with motor oil, irrespective of the other aggravating factors outlined, above, has earned a sentence at the highest end of the statute). That said, I then looked at your sentence in United States v. Johnson and was pleased to see that great minds do think alike. Bravo to you, Judge. This guy deserved the sentence you gave him and the appellate court rightfully agreed.
    Robert

  23. Judge-I have practiced criminal defense for over 25 years. If I have learned one thing, it is that there are some evil, mean people in this world. Have represented my share, and probably a few others’. I came up with 30 years, but will not say life was not warranted on these facts. We have prisons for a reason. Best wishes on a full recovery, sir. Enjoy your blog-never been to NE by the way.

  24. I’d put it at 20 years or so – but for the violent sodomy and the bat beating, not for the drugs. In a more just world, he would have been charged with and convicted of those violent, harmful, and immoral crimes, with the drug-dealing serving as a mildly aggravating factor at his sentencing, instead of the other way around.

    Under current Guidelines (which are lower than they were when he got sentenced), he’d be looking at bol 34, chc IV = 210-262 months for the drugs alone, post-trial and without acceptance. That’s 17.5 to almost 22 years before the application of any enhancements.

    For the sodomy, however, he’d be looking at only bol 30, chc IV = 135-168, or just over 11 to 14 years. For the aggravated assault with a dangerous weapon, even assuming a “serious bodily injury” under 2A2.2(b)(3)(B), it would be only bol 14 +4(weapon) +4(injury) = aol 22, chc IV = 63-78 – five to six-and-a-half years!

    So the problem I see with this particular Sentence-O-Matic is that it tends to represent the morally panicked judgments of the demagogues in Congress who see dealing in poor-people-intoxicants as deserving of more punishment than rape or assault.

    Without the violence and rape? If he’d just been convicted of running a cocaine distribution outfit, and actually was a “nice dope dealer” accountable for just over a kilo of cocaine? Shrug. Two to three years, depending on the priors.

    Full disclosure: I am an assistant federal public defender on the west coast.

    PS Glad to see you back, Judge Kopf.

  25. Peter,

    He was not charged with those other crimes. I did hold a two day evidentiary where the government was obligated to prove by the greater weight of the evidence that the sentencing facts outlined in the blog post were true in order for me to use those facts for sentencing purposes under the Guidelines.

    All the best.

    RGK

  26. Anon.,

    Forget the Guidelines for a moment, what would do if you only had a statutory minimum of 10 and section 3553(a) but the sentencing facts were the same?

    All the best.

    RGK

  27. Judge Kopf, you called the defense attorney “excellent.” I am only privy to the Eighth Circuit opinion and not the testimony of witnesses that you heard at the evidentiary hearing, but how can you call someone excellent when nowhere at the district court level or on appeal we see any evidence of mitigating evidence? And yet every attorney on this thread has uttered those words?

    What you posted above, the incomplete sentencing factors boilerplate, is that really all you knew about the defendant? Forget about the crime, that’s the prosecutor’s job to describe it. What did you really know about Jimmie? His family? What caused him to become “kind of a dealer” (of a drug rapidly on its way on becoming legalized 20 years later)? How much credibility did the cooperating witness for the government really have? Why wasn’t Jimmy the one cooperating?

    If I were you, I’d call counsel in chambers and ask them to do a better job writing a sentencing memorandum, the one that goes beyond the boilerplate. The one that gives me an idea who am I really dealing with. You haven’t posted a single shred of information here that says anything about Jimmie as a person, which tells me counsel didn’t do their job back then. I don’t expect you as a judge to be taken in by every sob story about the client’s upbringing. But that’s the thing: sometimes, it doesn’t have to be. For example, one of my clients on appeal has discovered Judaism in prison, and has been studying Ivanhoe, of all books, as part of BOP-offered curriculum. Incidentally, he has nearly perfect BOP records after a lengthy incarceration. Is that enough to get him a favorable re-sentencing? Of course not. But perhaps that’s enough for you to see him more than a docket entry and a range of USSG-suggested numbers on a sheet of paper.

  28. It is, of course, a matter of opinion, but should we, as a society, base our sentencing of violent, depraved criminals, such as Jimmie, on whether or not they find religion in prison, or whether they read a book or two? On one hand, the defendant is a habitual violent offender who beats up men with a baseball bat, injects transmission fluid into women’s vaginas, and forces them to have oral sex with his associates. On the other hand, he enjoys reading The Three Musketeers, and he never works on the Sabbath. Tough call…

    Personally, I am much more concerned with this man’s victims, than whether he had a bad childhood, or whether he “reformed” himself in prison. If a man like that is truly reformed, then he should take responsibility for his actions, and accept his punishment. As the judge himself put it,

    “In short, the defendant is an extremely dangerous predator and under no circumstances would I grant him relief even if I had the power to do so.”

    U.S. v. Johnson, 2008 WL 3853498 (D.Neb.,2008)

  29. Peter, there is no conspiracy to commit sexual assault at issue. He was convicted by a jury of conspiracy to sell drugs, and was found guilty beyond a reasonable doubt. At the punishment phase, a judge may consider mitigating and aggravating factors, such as the violent sexual assault for sentencing purposes, under a preponderance of the evidence standard. The judge held a hearing, and did find those allegations true by a preponderance of the evidence. Proper procedure was followed.

    I suppose it could be argued that all aggravating sentencing factors should be decided by a jury, based on a beyond a reasonable doubt standard but that’s another discussion.

  30. Well, John A., if I may reiterate, the very first sentencing factor that a judge is supposed to consider is “the nature and circumstances of the offense and the history and characteristics of the defendant.” Those two clauses are inextricably bound together, and at least the commission wants a judge to value them equally. Not even a comma separates the two–the nature of the offense and the nature of the offender. So the fact that you, John A., put more weight on the offense and not on “the history and characteristics of the defendant” is your personal preference, or folly, or that of a defense attorney for failing to persuade, or even perhaps an exercise of your judgment. I just hope it’s not that of a judge who is sentencing my client.

  31. The history and characteristics of the defendant should be absolutely considered, and were, in fact considered. His extensive previous criminal history and violent nature are certainly part of his history and characteristics. As far as whether any mitigating history factors were considered, we’d have to look at the sentencing documents to determine that, and a judge should certainly take them into account. Given the aggravating factors present in this case, though, I don’t see how any mitigating factor could have led to a different result.

  32. Nadia,

    Perhaps counsel understood that personalizing the defendant would not work with me, that this guy was truly evil and everyone reading the trial transcript and the two-day sentencing hearing transcript would see the defendant as such, and the best way to save him from a life sentence was to try knock down one by one each of the Guideline aggravators. In other words, counsel really understood what was going to motivate me when I finally sentenced. I say again that the defense lawyer involved in the case was and is one of the best and most zealous that I know.

    Whether defense counsel would have pursued the same approach now that the Guidelines have been neutered by the Supreme Court is one aspect of this post that commentators might wish to think about. Freed of the Guidelines, counsel might revert to section 3553(a) and, for example, pitch an argument about sentencing disparity: “Judge since you believe weight is a proper proxy for culpability and Congress evidently agrees with you given the imposition of statutory mandatory minimums based on weight, then this man, no matter his other failings, does not deserve life. What will you do, Judge, with the next crack dealer exactly like my client who, instead of schlepping a kilo,distributed 10 times that amount?”

    All the best.

    RGK

  33. Regarding the lack of mitigating evidence-pardon the vulgarity, but as someone who polishes turds for a living, sometimes none exists or it opens up damaging facts. After a state death penalty case (client got life), psychologist/mitigation expert who was NOT called at trial, told me my client was the worst guy he had ever met. They walk among us.

  34. Peter,

    I can understand how the discount theory applies to some offenders. But, since we don’t have a shortage of offenders, the discount analysis would predict, wrongly, that offenders would not do either crime, that is, bank robbery or crack dealing mentioned in your hypotethical. A shortage of offenders is not borne out by the data and that causes me to doubt the efficicacy of pushing your economic model too far out in time particularly when we consider public safety as having value.

    In my view, the discount theory does not account for the value of Incapacitation. Taking offenders off the street for long periods of time has value in that they are not able to extract their “dues” from from good citizens while those offenders are incarcerated. To be more blunt, what is the value expressed in dollars of a second woman avoiding being sodomized with motor oil by incapcitating Jimmy for life?

    All the best.

    RGK

  35. The application of discounting really only applies to deterrence. I did not intend to say it is a mathematical way to factor all the elements of sentencing. So yes, both the elements of just punishment for a crime and the elements of incapacitating a dangerous criminal are wholly separate considerations. This is just about the deterrence of prospective crime, both on the part of the defendant and others.

    The point I was after is that criminals, on the whole, tend to be people who discount the future heavily relative to the present. Someone who discounts the future at just 2% a year is someone who becomes an insurance actuary, not a stick up artist. Someone who discounts at ~20% a year may decide to lead a life of crime, but no criminal sentence will deter him because he weights the future so lightly over the here and now.

    There are some exceptions to this – for example the corrupt officer you posted about a little while back who was handcuffed in the courtroom. His fellow officers will probably care a lot about their futures and consider such harsh sentencing seriously. Likewise with something like insider trading or securities fraud. In those cases, the criminals are usually counting on a very low chance of being caught. Showing that when they are caught, they get the book thrown at them may meaningfully deter others.

    But I think you’d agree that the average drug dealer or bank robber really isn’t thinking much about 5 or 10 years in the future.

  36. I think that RGK has demonstrated that federal sentencing should be more transparent.

    I believe that setting a minimum (explict or implied) and a maximum sentence is a practical solution by the legislature to a very difficult problem because the persons subject to federal sentencing are such a biased sample a fixed sentence is not appropriate. I also do not think the federal sentencing statistics are of much value again because of the biased sample. I would rather have peer review of sentencing than legislative sentencing guidelines.

    I also think it is very interesting that there was such a wide range of opinion on what the sentence should be and that people were willing to give an opinion based on incomplete information.

  37. “I also think it is very interesting that there was such a wide range of opinion on what the sentence should be and that people were willing to give an opinion based on incomplete information.”

    What’s to be done? Info is always incomplete, situations differing only in matter of degree. What can be done but try to remedy the situation to the extent possible and do one’s best (which can be pretty poor in some circumstances, unfortunately) w what one has?

  38. Hi Judge,

    Like I said, I think about 20 years, given the rape and the beating – and, indeed, mostly for those horrible crimes. (Also assuming the lack of mitigating factors, as none appear in the 8th Circuit opinion.) Without the rape and the beating, I would view running a kilo-level distribution scheme at around 2-3 years, depending on the equities and the priors. My references to the Guidelines were merely to point out how much more harshly federal criminal law seems to treat drugs than it does violent beatings or rapes.

    I would be relying mostly on (1) defendant’s history & characteristics – which appear all negative from your summary, (2) nature & circumstances of the offense – violent and manipulative, and especially aggravated given the rape and beating, (3) need to promote just punishment & respect for the law – this involves punishing violent and predatory behavior much more than merely mercantile behavior, and (4) need to avoid unwarranted disparities – compared (in my view) to typical state-court sentences for drugs on the one hand, and rape/assault on the other.

    Given the universe of conduct and apparent lack of mitigating factors, I’d say 20 years. Perhaps more if he’d previously been convicted of violent behavior.

    Best,
    B

  39. Peter,

    I do agree that your average drug dealer is motivated almost exclusively by immediate gratification. That turns out to be a real problem, as you point out, for those of us who strive to change criminal behaviors through the criminal justice system.

    All the best.

    RGK

  40. I would have imposed a sentence of twenty five (25) years. I would reserve life imprisonment only for murderers. Did I screwed up?

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