Swisher Sweets

Please read SHG’s post this morning entitled The Smearing of Michael Brown. I have two thoughts:

1. The video of Brown stealing Swisher Sweets and shoving the store clerk is highly relevant to the shooting of Brown. It provides a plausible explanation for his struggle with the cop. While the cop knew nothing of the incident, Brown was aware of it. Here is the argument of defense counsel for the cop: Brown thought the cop was after him for the theft and pushing the store clerk and he didn’t want to get caught, so he resisted the cop.

2. I have previously used the acronym stfu. It applies perfectly here. A young black man has been killed by a police officer and riots have ensued. The proper handling of any investigation of this type requires that it be overseen by experienced prosecutors who would control the release of information. Whether intentional or not, the release by the local police of the video of Brown at the convenience store looks like, and may well be, an effort to slime the kid. The information didn’t need to be released now. After all, the poor boy was not even buried when his memory was sullied–simple kindness required restraint.


Insightful comments from J.C. Oleson about using empirical research on risk to reoffend at sentencing

One of the most enriching aspects of this blogging gig for me has been the opportunity to correspond with some brilliant people who are also motivated to do good. I count J.C. Oleson among those folks.  Last evening I received an e-mail from Dr. Oleson. I was struck by how thoughtful it was, and asked if I could post it. He gave me permission to do so. Here it is:

Dear Judge Kopf,

Thank you for your email, and for the link. Your postings have been interesting, thoughtful, and provocative, and the comments have been terrific. I liked Peter H’s comment about the 1866 Civil Rights Act, and have thought a bit about how far the prohibition extends. Obviously, you cannot have one set of penalties for one racial group and another set for another racial group, but I wonder if it would really be an obstacle if race was part of a multi-factor risk assessment. The whole point of my article “Risk in Sentencing” was to suggest that actuarial approaches are so attractive that EVEN RACE might be permissible. And if race can be permitted in, then everything else follows. I don’t honestly think that the Supreme Court would – or should – condone sentencing disparities based on race data – but the point is that it COULD (holding community safety to be a compelling state interest). Of course, even if “race” is NOT permitted in, and even if gender/sex is not permitted in, many of our standard considerations (e.g., education, work history, socioeconomic class, community ties) that correlate with race and gender might very well be permitted. Once you really begin to scrutinize the idea of a sentencing “fact” and to consider the linkages between the fact and the sentencing decision, it becomes epistemologically very complicated. I think that’s what I like about your postings and the comments – there seems to be a recognition that this is a problem that is already with us, and affords no simple solutions.

· These variables highlight an incommensurable tension between utilitarian and deontological bases of punishment – being poor may exculpate Jean Valjean under just deserts but it also predicts greater risk of offending and recidivism – federal judges, simultanenously trying to punish both past and future crimes under 3553(a) are left without a compass

· People dislike the “sentence-o-matic 1000” but rejecting algorithms and automation does not prevent assessments of risk – it just means that the human estimates are likely to be more idiosyncratic and less accurate

· People are more receptive to using these variables in mitigation, but this may be a case of wanting one’s cake and eating it too – if the variables can exculpate, how is it that they do not also demonstrate blame?

· People are more receptive to using risk instruments at the back end of sentencing (parole, probation conditions) but why should we be more comfortable with that than with sentencing? Many offenders would prefer prison to highly restrictive intensive supervision probation – it’s not a case that sentencing is “serious” while community corrections decisions are inconsequential

The problem of whether to use this data (how much, and in what form) is already here. The AG’s remarks and the work on the MPC provisions underscore the importance of the question. It’s wonderful to see this discussion on your blog (which I have now bookmarked) and it may be a question for the Judicial Conference and the Sentencing Commission to study.

With very best wishes,


J.C. Oleson, Senior Lecturer in Criminology
Director Research, School of Social Sciences
Book Review Editor, Australian & New Zealand Journal of Criminology
Sociology, University of Auckland

 So, dear readers, what do you think?


More ostrich

I had a transfusion yesterday. It took six hours. By the time I was done, I had no energy to reply to the extremely thoughtful comments I received in relationship to More about AG Holder as an ostrich. I feel better this morning, so I will use this post to reply to the comments and, more importantly, concentrate on the 16 other social science variables specified by Dr. Oleson to get at the issue of a defendant’s likelihood to reoffend.

Let’s face it friends, “race” is low-hanging fruit. It is too easy to attack, although the social science data on race when used as a predictive metric for sentencing is not really about genetics (“race”) as a causative factor in crime. It is about being correlated with crime, and there is a huge difference between the two (causation and correlation). But the word “race” is too freighted with the notion of “discrimination,” so let’s just agree for the sake of argument that empirical data on “race” will never be used at sentencing.

OK. But what about the other social science predictors? Things like gender. Or socio-economic background. The things that our delicate AG Holder seemed so frightened about.

Dr. Oleson’s complete list, with the exception of race, is set out below together with the page of his second article (attached to yesterday’s post) where the discussion about the variable is found initially:

1. Criminal Companions ……………………….. 1353
2. Criminogenic Needs …………………………. 1354
3. Antisocial Personality ……………………….. 1354
4. Adult Criminal History ………………………. 1355
5. Race .……………………………………… 1356
6. Pre-Adult Antisocial Behavior ………………… 1359
7. Family Rearing Practices …………………….. 1359
8. Social Achievement ………………………….. 1360
9. Interpersonal Conflict ……………………….. 1361
10. Current Age ………………………………… 1361
11. Substance Abuse ……………………………. 1362
12. Family Structure …………………………….. 1363
13. Intellectual Functioning ………………………. 1364
14. Family Criminality ………………………….. 1365
15. Gender …………………………………….. 1365
16. Socio-Economic Status of Origin ……………… 1366
17. Personal Distresss …………………………… 1366

Why shouldn’t a federal judge take these 16 other variables into account when deciding what sentence to impose, particularly when the judge is trying to reduce the federal prison population be selecting out the “non-violent?” Go ahead, make my day!


More about AG Holder as an ostrich

My post entitled Like the ostrich that buries its head in the sand, Mr. Holder is wrong about data-driven sentencing drew mostly criticism and even some anger. I was therefore glad to receive an e-mail from James C. Oleson a former senior lawyer with Administrative Office of the United States Courts forwarding two article that he has written on data-driven sentencing. Oleson is extraordinarily knowledgable about the Sentencing Commission, the Sentencing Guidelines and data-driven sentencing relating to predictions of recidivism.

Dr James Oleson, B.A., M.Phil., J.D., Ph.D.

Dr James Oleson

James C. Oleson earned his B.A. in psychology and anthropology from St. Mary’s College of California, his M.Phil and Ph.D. in criminology from the University of Cambridge, and his J.D. from the law school at the University of California, Berkeley (Boalt Hall). Between 2001 and 2004, he taught criminology and sociology at Old Dominion University, in Norfolk, Virginia, where in 2004 he was selected as the university’s “rising star professor.” In 2004, he also was selected as one of the four U.S. Supreme Court Fellows for the 2004-05 year (and was later selected from that group as the 2004-2005 Tom C. Clark Fellow).

After the end of the fellowship, he was appointed as Chief Counsel to the newly formed Criminal Law Policy Staff of the Administrative Office of the U.S. Courts, and he served in that capacity between 2005 and 2010. Dr. Oleson is now on the faculty of the prestigious University of Auckland in New Zealand.* Since arriving at the University of Auckland in 2010, he has taught in the areas of psychological criminology, sentencing, and penology. He is a Senior Lecturer in Criminology and Director of Research at the School of Social Sciences.

In the first article, J.C. Oleson, BLOWING OUT ALL THE CANDLES: A FEW THOUGHTS ON THE TWENTY-FIFTH BIRTHDAY OF THE SENTENCING REFORM ACT OF 1984, 45 University of Richmond Law Review 693 (2010) (PDF here Blowing Out All the Candles), Oleson mounts a scathing criticism of the Guidelines and introduces what I call the “actuarial based risk of reoffense” construct as a way of meaningfully reforming the Guidelines.

In his second article, J.C. Oleson, RISK IN SENTENCING: CONSTITUTIONALLY SUSPECT VARIABLES AND EVIDENCE-BASED SENTENCING, 64 S.M.U. Law Review 1329 (2011) (PDF here 64SMULRev-4 (Oleson) (1)), Oleson identifies the 17 variables that social scientists have accepted as valid risk predictors of recidivism (including race, age, gender, socio-economic status of origin) and then explains why they should survive Constitutional scrutiny. He also attached a helpful appendix to his article that takes the various risk assessment instruments and shows what variables are included in each instrument.

Readers who have a serious interest in federal sentencing, the Guidelines and reforms thereto should carefully read both of Dr. Oleson’s articles. If Attorney General Holder thought it necessary to give a speech–a preemptive strike really–opposing actuarial based risk of reoffense sentencing, this is an issue that is not likely to go away. Indeed, one might even hope that as Congress looks at sentencing reform the ideas so carefully articulated by Dr. Oleson might emerge front and center in the debate. Otherwise, all of us concerned with sentencing reform might just as well follow the example of Mr. Holder, and stick our heads in the sand.


*My son earned his Masters degree with First Class Honours at Massey University in New Zealand.


What schizophrenia looks and feels like to the patient/client

I have written a lot about my personal experiences as a lawyer dealing with people who suffer from schizophrenia. See here, here, and here. Without intending to brag, I know a lot about this disease. The disease is horrible. It frequently manifests itself with hallucinations and delusions that terrify the patient. Until you have spent time dealing with sufferers of this awful affliction you simply cannot imagine the terror they express when the disease is florid.

I have wondered in the past how to communicate to people who have not dealt with schizophrenia what the disease and resulting terror must look and feel like to the sufferer. Yesterday, Robin Williams died and that provided the inspiration for this post. To be clear, this is not a tribute to Williams, although it could be. Rather, his tragic death brought to mind a scene from an old movie where Williams plays a schizophrenic desperately dealing with his disease. The 1991 move is the Fisher King.

Williams play a character who witnessed the violent shotgun death of his wife and emerges with schizophrenia, although the illness is never actually named.  Williams’ character is continually plagued by a hallucinatory Red Knight, who terrifies him whenever he shows any confidence in rebuilding his life. The attached clip follows a date with a shy woman where Williams’ character has enjoyed a wonderful time. As he steps back from her door step after kissing her good night and feeling that a fulfilling life may emerge, the full horror of the schizophrenia is revealed.

I urge to you watch the clip if you want to know what schizophrenia looks and feels like to the patient. In particular, any lawyer who is likely to encounter a client who is a schizophrenic desperately needs to know how terrifying the world appears to these terribly ill people. I honestly don’t think a lawyer can competently represent a person who has this disease without understanding the horror that permeates the mind of the client when his or her illness is florid. Obtaining and then internalizing this knowledge will be unpleasant for the lawyer, but such effort and action are critical in my view if the lawyer wants to represent the schizophrenic competently. At the very least, you will develop a justifiable empathy with the client, and that is a good thing for those lawyers, like most of us, who constantly battle cynicism.


Please read Scott Greenfield’s post “Numbers Don’t Lie (But People Do)”

Yesterday, I posted “Like the ostrich that buries its head in the sand, Mr. Holder is wrong about data-driven sentencing.” Today, Scott Greenfield at Simple Justice has posted a rejoinder entitled “Numbers don’t lie (But People Do). Scott makes excellent points about reliance at sentencing on social science data if used to predict future violence. Read Scott’s post.

I add the following more as a clarification than anything else:

I am not terribly wound up by the idea that I am under pending reforms supposed to reduce the number of offenders in federal prison by trying to determine at sentencing which are likely to be violent when released and which are not likely to be violent upon release. Indeed, if you read the Rorschach test of sentencing, that is 18 U.S.C. § 3553(a), you will struggle to find a directive that I ought to look at prison overcrowding and the cost to the federal fisc. That “little” problem aside, I am not at all sure that I am competent to read, understand and apply the relevant social science data that would allow me to rationally determine the risk of future violence. But if Attorney General Holder wants federal judges to be seriously sensitive to the issue of future violence and prison overcrowding he is, in my opinion, being obtuse or disingenuous when he suggests that we ignore mounting social science data that rely upon “immutable characteristics” and other factors (like socio-economic information*) that make the rest of us twitchy about issues of race, gender, age and poverty. The Attorney General should not be allowed to have his cake and eat it too by suggesting we ignore the uncomfortable.


*Philadelphia is highly segregated. Yet the successful prediction instrument, with a 66% accuracy rate, developed in the City of Brotherly Love uses zip codes as a scoring factor. See Nancy Ritter, Office of Justice Programs, National Institute of Justice, Predicting Recidivism Risk: New Tool in Philadelphia Shows Great Promise (February, 2013).

Like the ostrich that buries its head in the sand, Mr. Holder is wrong about data-driven sentencing

Attorney General Eric Holder, addressing criminal defense lawyers, expressed a concern about the use of empirical data to sentence people. One assumes he has similar concerns about the use of empirical data to to decide how offenders should be supervised when out on the streets on supervised release.

The Wall Street Journal wrote the following on August 1, 2014 detailing Holder’s remarks:

Attorney General Eric Holder warned Friday that a new generation of data-driven criminal justice programs could adversely affect poor and minority groups, saying such efforts need to be studied further before they are used to sentence suspects.

In a speech in Philadelphia to a gathering of the National Association of Criminal Defense Lawyers, Mr. Holder cautioned that while such data tools hold promise, they also pose potential dangers.

“By basing sentencing decisions on static factors and immutable characteristics—like the defendant’s education level, socioeconomic background, or neighborhood—they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society,” Mr. Holder told the defense lawyers. Criminal sentences, he said, “should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.”

Although I think Holder’s point of view is is naive and manifestly wrong, we should at least thank the Attorney General for flagging a very important issue. With that acknowledged, let’s look a little deeper.

As compared with Holder’s concern, there is a movement at the federal level to seriously examine the huge data bases that exist in order to make predictive judgments about how offenders are likely to do in the future and to factor that data driven analysis into the judicial process. Indeed, a former policy analyst for the federal courts wrote three years ago that:

Evidence-based sentencing is based upon social science. Criminological meta-analysis has identified fifteen key variables that are significantly related to recidivism: 1) criminal companions, (2) antisocial personality, (3) adult criminal history, (4) race, (5) pre-adult antisocial behavior, (6) family rearing practices, (7) social achievement, (8) interpersonal conflict, (9) current age, (10) substance abuse, (11) intellectual functioning, (12) family criminality, (13) gender, (14) socio-economic status of origin, and (15) personal distress. If those variables can be used in sentencing, it may be possible to safeguard public safety while reducing the financial and social costs associated with mass incarceration.

J.C. Oleson, Risk Assessment at Sentencing, ASU Law Journal (June 20, 2011). See also Administrative Office of the United States Courts Office of Probation and Pretrial Services, An Overview of the Federal Post Conviction Risk Assessment (September 2011).

Notice from the foregoing that “immutable characteristics” or “static factors” like race, gender and age are included. If race, gender or age are predictive as validated by good empirical analysis, and we truly care about public safety while at the same time depopulating our prisons, why wouldn’t a rationale sentencing system freely use race, gender or age as predictor of future criminality? The same can be said of factors like antisocial behavior, family criminality and other factors that have in the past made us queasy because they were thought to focus too much on the poor.

In my opinion, the use of empirical methods to assess risk at sentencing and upon supervised release is the most important aspect of the present movement toward criminal justice reform. We can and should aspire to depopulate our prisons. We can and should aspire to treat certain offenders less harshly. We can and should do a better job of helping offenders on supervised release. But if we believe that public safety is or should be a central goal of our criminal justice system we ought not to ignore the truth–certain characteristics that we have shied away from in the past because we worried too much about vague notions of “equality” or “fairness” tell us a lot about future danger. The Attorney General was wrong to put his head in the sand like the proverbial ostrich when he suggested those factors be ignored. The rest of us ought not to make the same mistake.


Remembering Richard Nixon

On August 8, 1974, President Richard Nixon resigned. The night before, he addressed the nation on television. I remember that time clearly. I had just concluded my clerkship with Judge Ross. The judge was a Nixon confidante. The judge shared many insights about the President. As a result, I was particularly fascinated with the developments in Washington and the enigma that was Richard M. Nixon.

Do you know the actor Harry Shearer? Well, you should. He is wonderfully talented.

For a sadly funny and poignant skit on Nixon preparing to give his nationally televised resignation speech and then giving that speech, I encourage you to watch the six-minute YouTube video that is attached. Shearer provides us a penetrating insight into a brilliant, awkward, and complex man.

After the speech is over, Shearer, as Nixon, looks at those assembled in the Oval house. He wishes them a “Merry Christmas” with all the fake of bonhomie of child used to enduring playground beatings. It is August of 1974 but the raw winds of winter are evidently on Nixon’s mind.



Hey, Kip, look at what I got!

Yesterday morning, at the Eighth Circuit Judicial Conference in Omaha, the Board of Directors of the Historical Society of the United States Courts in the Eighth Circuit had its meeting. The Historical Society of the United States Courts in the Eighth Circuit is a not-for-profit corporation organized and operating under the laws of the State of Missouri. It is governed by a board of directors made up of representatives of each of the branches. Each district court has a branch, and so does the Court of Appeals.

The Historical Society and its branches are tax exempt organizations pursuant to section 501(c)(3) of the Internal Revenue Code. Importantly, and to comply with the Committee on Codes of Conduct’s Advisory Opinion No. 104, at 104-1 (PDF page 194), Participation in Court Historical Societies and Learning Centers,  the Historical Society is not a part of, nor is it controlled by, any of the courts, judges or employees of the courtsOn the contrary, it is controlled and run by lawyers and lay people who have an interest in preserving the history of the courts in the Eighth Circuit.

I have had the privilege of serving the Society as Chairman of the Board of Directors for some time now. My primary duty is to call the meeting of the Board of Directors to order, and then turn the meeting over to our extraordinarily dedicated President, Dick Lyford. My job is easy. That’s why I was surprised yesterday morning when Chief Judge Bill Riley presented me with a beautiful certificate and an antique oil lantern that had never been fired but was intended for use years ago on the Union Pacific Railroad. The UP’s home office is in Omaha. I was stunned because I truly don’t deserve the recognition.

What no one may have known yesterday morning is that my brother Kip, who lives in Ohio, spent his working life on the railroad as an engineer. I know that he will be jealous that I have the lantern. Despite the fact that our sibling rivalry should be long over, the fact that I have a truly unique railroad artifact that Kip wants with the same passion as the Gollum wanted the ring, but can’t have, makes me grin. Best gift ever.

Hey, Kip, look what I got!

photo 1

photo 2


Classin’ up the joint

Joan and I went to the Article III Judges dinner last night to kick off the Eighth Circuit Judicial Conference in Omaha. We privately laughed at ourselves and remembered 1992 when we attended our first such dinner after I had become an Article III judge. At that dinner we giggled about the old age of the judges and their spouses. I was 45, and that was then.

But this is now. I had a chemo infusion yesterday morning. Lucky me, that induced a bloody nose last evening sitting next to the genteel, funny and brilliant Judge Susan Weber Wright from Little Rock. She pretended not to notice as I skulked away from the table and returned with Kleenex up my nose.

The following photo depicts what I found when I got home, and looked in the mirror. I added Joan’s comments for context. You want legal realism, you got legal realism.

No, that tissue sticking out of your nose, that you thought was crammed high enough to miss, is nothing to be embarrassed about. It makes you look distinguished.

Joan to Rich: “No, that tissue sticking out of your nose is nothing to be embarrassed about. It made you look distinguished. Old coot!


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