A second blogger in the Kopf family

RackMultipart20141107-9095-hmza8rOur son, Keller, and I have discussed writing over the years. As an academic biologist in Australia, Keller has written extensively about marine and freshwater fish for scientific journals. This year Keller ventured into the blogosphere and a discussion of policy matters. More on that in a moment.

The Conversation, Academic rigor, journalistic flair is a public blog that promotes informed discussion on important subjects of public interest. It has sites in Australia, the United Kingdom and the United States. It is a blog–really a journal–that features exchanges between experts in particular fields and informed lay people. The Conversation is funded by the Howard Hughes Medical Institute, Robert Wood Johnson Foundation, Alfred P Sloan Foundation and William and Flora Hewlett Foundation. The global publishing platform is funded by Commonwealth Bank of Australia. The Conversation is well worth reading on a frequent basis.

Now, back to Boyo.  As the first author, Keller, together with Nicole McCasker and Paul Humphries, wrote Why are there no true freshwater protected areas in Australia? In the article, Keller and his coauthors promote the idea of protecting Australia’s abundant and pristine freshwater ecosystems, primarily in the north of Australia, much as the Boundary Waters Canoe Area Wilderness on the US-Canada border is protected.

Photo credit: Carole Mackinney pursuant to a Creative Commons CC0 1.0 Universal Public Domain Dedication. Australia’s north is home to many pristine rivers, but most national parks are focused on land-based conservation. The McArthur River at Borraloola, in the Northern Territories, is pictured.

Photo credit: Carole Mackinney pursuant to a Creative Commons CC0 1.0 Universal Public Domain Dedication. Australia’s north is home to many pristine rivers, but most national parks are focused on land-based conservation. The McArthur River at Borraloola, in the Northern Territories, is pictured.

The article received national attention in Australia and prompted interviews of Keller from radio stations across Australia. I think Keller was amazed that a small blog post could do what dense academic journal articles failed to do. That is, promote real change talk about scientific matters that Keller feels strongly about.

So, as the New Year approaches, I am pleased to say that we now have two bloggers in the family. But, I should not stretch that comparison too far. After all, Keller knows what he is talking about, while I might more properly be called a dilettante. Anyway, I hope Keller continues to devote some of his writing to public policy matters having to do with his area of expertise. If I do say so myself, he is good at it.

RGK

 

When the acronym that shall not be spoken applies to federal district judges

Most of the time, federal district judges should not write stuff that is unnecessary. First, as a general rule, nobody cares much what we write. Second, most of what we write is not worth caring about. Third, when we write stuff that is unnecessary we begin to look as if we are trying to influence something beyond the case at hand–and that is manifestly not our job. With that perfectly unnecessary introduction, I urge you to read the erudite piece by the venerable Lyle Denniston, entitled “Constitution Check: Is Obama’s new immigration policy constitutional, or not?

RGK

A tip of my special baseball cap to Howard Bashman and How Appealing.

Happy Birthday United States District Judge Lyle Strom

18In our beautiful courthouse in Omaha, we celebrated Judge Lyle Strom’s 90th birthday yesterday. Judge Strom continues to try civil and criminal cases. One of his goals is to try a jury case when reaches the century mark.

Lyle is beloved and respected by all. He was one of the most highly regarded civil trial lawyers in Nebraska before becoming a district judge as he neared his 60th birthday. He mentored Chief Judge Bill Riley of the Eighth Circuit when the two were law partners. He served as President of the Nebraska Bar Association at the same time as he was Chief Judge of our court. To my way of thinking, Lyle remains one of the best trial judges in the nation.

At 5:00 AM, five days a week, you will find Lyle in the pool.  By the way, I really don't like guys who are 90, but look 50.

At 5:00 AM, five days a week, you will find Lyle in the pool. I resent guys who are 90, but look and act 50.

Lyle has always called them as saw them. Despite the fact that Strom was a conservative Republican when nominated, speaking the truth meant taking on the “crack” cocaine laws with a vengeance.

In a 1993 case, Judge Strom ruled that crack cocaine penalties disproportionately affect African-American defendants, holding that blacks are “being treated unfairly in receiving substantially longer sentences than caucasian males who traditionally deal in powder cocaine, and this disparity simply is not justified by the evidence.” He used this disparity to depart downward and impose 20 year sentences on two black defendants, instead of the 30 years otherwise required by the Guidelines.

Judge Strom was the first federal judge to cite racial disparity as the grounds for a downward departure. He also went to Congress to testify in favor of lowering crack penalties (as recommended by an amendment proposed by the Sentencing Commission). He told Congress, “We have an opportunity to resolve an unfair and unjust disparity in our sentencing system.”

Congress rejected the Commission’s amendment and the Eighth Circuit reversed his ruling, ordering Judge Strom to resentence the defendants according to the Guidelines. At the resentencing, one of the defendants, Delano Maxwell asked, “You can’t depart downward? I don’t understand that. I really don’t. For two hundred years, a judge has been able to use his discretion in sentencing. How can you justify not giving me a chance?” Judge Strom promised to continue to work to change the law. He told each of these defendants, “I know it’s no justification or solace to you, but I am serious when I say this is an outrageous sentence, and I apologize to you on behalf of the United States Government.”

By the way, if you ever need advice on single malt scotch, Lyle is the man to see.

RGK

The Bestest System Around–Jeff Gamso

Photo credit: Windypundit and Mark Draughn.

Photo credit: Windypundit and Mark Draughn.

My post yesterday regarding Judges Kane and Rakoff and innocent people pleading guilty drew a response from Jeff Gamso. See here.

Jeff is a very bright guy, a highly regarded criminal defense lawyer (from my hometown once upon a time), and a helluva a writer. I urge you to read what he has to say. I also look forward to reading his suggestions that he promises will come in subsequent posts about how the system might be improved.

I hope Jeff concentrates on the federal system. In particular, I hope he tells me whether he wants federal district judges to get all up in his business as he negotiates pleas. Additionally, I hope he tells me whether guilty pleas by innocent people in federal court represent a significant problem or whether such events are rare. If he thinks there is a significant problem, I would be very glad to learn upon what basis he concludes that is so.

RGK

Plea Bargaining and the Innocent–A response to Judge Kane and Judge Rakoff

In a thoughtful and well written piece the highly regarded John Kane, a long serving federal district judge from Colorado, thinks judges ought to do a lot more to assure that the innocent do not plead guilty to a crime they did not commit.  See John L. Kane, Plea Bargaining and the Innocent, It’s up to judges to restore balance, The Marshall Project (December 26, 2014). This follows another thoughtful piece written by Judge Kane’s friend, the venerable U.S. District Judge Jed Rakoff, from the Southern District of New York, entitled Why Innocent People Plead Guilty.

Both Kane and Rakoff call for a much more active role for federal district judges in assuring that guilty pleas reflect actual guilt rather than a risk calculus by the defendant and his counsel that a guilty plea on conditions set out in a plea agreement is preferable to the risk of trial and a higher sentence.  I have two strenuous objections to this call for greater involvement in the plea process on the part of federal trial judges.

First, both Kane and Rakoff cite the following statistic:

My friend Jed Rakoff writes, “How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent.” With over 2.2 million people in American prisons that is a haunting amount of injustice.

I don’t know where they get their numbers because they provide no citations, but I do know that those numbers have little do with the federal courts. In short, the judges fail to cite any empirical data that proves there is a significant problem with innocent people pleading guilty in the federal courts.

As both a United States Magistrate Judge and a federal District Judge over the last 28 years I have personally taken more than a 1,000 guilty pleas and I have reviewed many hundreds more taken by Magistrate Judges.  While I do not doubt that a few people plead guilty even though they may not be guilty of the crime charged (although they may well be guilty of a related but uncharged crime), Kane and Rakoff tell us a tale about a bogey man as we figuratively sit around the campfire. But the fearsome creature disappears when the sun rises. Data, gentlemen, where is your data for the federal courts?

Second, Kane and Rakoff in their effort to solve a problem that does not exist in the federal system push for a “mother knows best” role for federal district judges when it comes to plea bargaining. I have always understood our role as trial judges to be a part of an adversarial system that largely depends upon each side making their own decisions about what is best for them. While it is of course true that federal prosecutors almost always have the upper hand, let’s be honest and admit that such dominance arises because the vast majority of federal defendants are caught red-handed. Generally speaking, federal defendants are in a weak negotiation position not because of some flaw in the discovery or plea-taking process in federal court but rather because they are plainly guilty.*

Unless I am misreading them, Kane and Rakoff call for a fundamental change in the role of federal district judges in the plea process. There is no empirical evidence to support a need for this sea change in role. Moreover, their call for a nanny-like approach is in my estimation quite radical. It rejects both the history and tradition of federal trial judges, and the separate and independent roles properly played by prosecutors and defense lawyers. We don’t need, nor should we want, trial judges to become mothers to us all. The federal trials courts are places were big boy pants are worn. That is as it should be.

RGK

*This does not mean, of course, that we judges should not enforce Rule 16 aggressively or refuse to call upon prosecutors to adopt an “open file” approach to discovery. Nor does it mean that our Rule 11 plea taking procedures should be lax or performed in a rote manner. Furthermore, we may well want to assure ourselves before trial that the defendant has been fully advised of all plea offers and has knowingly and intelligently rejected them. See, here, for my standing order on that subject in light of Missouri v. Frye.

Answering “interrogatories” focusing on sentencing from a law student

As I have noted before, I frequently receive e-mail with questions. I try to answer all of them. Recently, I received some questions from a law student focusing on sentencing questions, and I answered them. That law student has now followed up with more questions which I will also answer. I publish the questions and answers ’cause they may have some interest to readers.

__________

Law Student’s First Set of Interrogatories and Kopf’s Answers Thereto (not under penalty of perjury):

Your questions are good ones and get to the heart of sentencing.  I will briefly answer them, but please understand that I am ultimately a legal realist. That is, I don’t believe much in stating theoretical positions in the abstract.

  1. As a practicing judge, do you view punishment as communicative? Or merely as getting a high risk offender/re-offender off the street? Or put more broadly, since you have been highly critical of 3553(a), what is the purpose of punishment for you and how do you pick between retributive/utilitarian theories? And how does that ultimately impact the sentencing range you pick (I am well aware of Booker and all the case law that has followed and your position on the blog that you are in favor of guidelines but I am interested in your view independent of Booker etc and for purposes of your answer just assume you have freedom to do whatever you want up to the statutory maximum)? 

In addition to being a legal realist, I am primarily a utilitarian when it comes to sentencing. I intend to communicate only in the sense that I hope my sentence serves to deter others. That said, there is often a place for retribution in those cases where there is real harm to real people.

Having said the foregoing, in a democratic society like ours, I would prefer that elected officials express more specifically the goal or goals of sentencing. If there are multiple goals, Congress could rank them in terms of priority.

Because I believe that the Sentencing Commission tries hard to implement what it sees as the will of Congress, I tend to sentence within the Guidelines even now because I have independently determined that the will of the people is most often implemented when I sentence within the Guidelines.  To be clear, I follow Booker and its progeny and don’t give the Guidelines special weight. On the contrary, when I follow the Guidelines, I do so because I have independently determined that the range established by them in a given case is the proper one after looking at all the section 3553(a) factors.

I want to be clear also about something else. I don’t think judges are any better equipped to sentence an offender than the reasonably well-informed lay person. In fact, it would be pretty easy to convince me that jury sentencing is the way to go.

Regarding your law school classmate, I try never to lecture or make off the cuff remarks.  Normally, I just recite the section 3553(a) factors I relied upon, and call it good. But, I always ask the lawyers “whether they would like any further elaboration of my statement of reasons.” They almost always decline. By declining, the Court of Appeals reviews the adequacy of my statement of reasons under the “plain error” doctrine.

  1. I don’t know how or what possessed you to be such a friend to Mr. Hopwood. But clearly its played a crucial part in his success and he owes you a debt of gratitude. But would you advise other defendants to write to their judge to tell them how they turned out? (See below for explanation) 

I like to know how people turn out. When I learn that a defendant has overcome the harsh reality of a federal conviction, I often learn things that later are helpful to me when I sentence others. Shon’s case taught me to be especially aware that my instincts can be wildly off base. 

  1. Also, I just have to ask the following two questions because I am really curious:

(a) I have read so many quotes by judges that by sentencing xyz to prison that they will be rehabilitated, find a moral compass, find their way, start the path to restitution, whatever. Every time I read such a quote, I wonder if judges are actually aware that most people are not rehabilitated through the process of imprisonment: when you sentence someone to prison, where/how do you expect rehabilitation to come about from the confines of a concrete cell?

Prisons almost never rehabilitate people. I never express rehabilitation as a reason for sentencing. For my money, that would be just plain dishonest.

(b) In a related vein, if you have an immigrant defendant who is going to be deported (lets say to a far off land and not to Mexico from where re-entry is quite easy) after his/her sentence, how does that impact your view of what sentence is appropriate/analysis of the 3553(a) factors? The reason I ask this is I have often seen cases where the judge robotically repeats the 3553(a) factors and imposes a guideline sentence even though most will not apply to immigrant defendants (i.e. “protecting the public,” but the defendant is going to be deported with no chance of return seems to be overlooked, the need for “rehabilitation,” immigrants are not assigned to camps or minimum security prisons and do not have many rehabilitative programs available to them and besides why would you want to spend time and money “rehabilitating” a defendant that is going to be deported), etc. etc. I mean I have rarely seen judges engage these issues in an immigrant case involving drugs, guns or fraud but I have read plenty of appellate court decisions that say deportation should not be considered a factor for downward departure. 

I don’t think the fact of a pending deportation should increase or decrease a prison sentence. Remember that if a defendant is deported he can avoid supervised release, and that is a significant “bonus,” providing he or she does not reenter again (see below). In short, I view deportation as a collateral consequence much like I would view the likelihood of a civil judgment flowing from the conviction. 

I do think, and the law is now pretty clear, that deportation should be considered when determining whether to impose a term of supervised release after release from prison.  With citizens from Mexico, once in a while I will impose a period of supervised release. By doing so, the defendant knows that he or she is subject to a prison term for illegal reentry if he or she comes back after deportation plus an additional prison term for violating my supervised release order. Supervised release thus serves as an additional deterrent in those cases.

Please note that the Nebraska federal court has long been a “fast track” court.  That is, the defendant receives a base offense level reduction if he or she agrees not to contest deportation.

Law Student’s Second Set of Interrogatories and Kopf’s Answers Thereto (not under penalty of perjury):

1. Insofar as you are a utilitarian though, how do you overcome (on a theoretical level), justify or respond to the many moral, theoretical and ethic objections to sentencing based on deterrence (Kant’s famous quote comes to mind)? In a related vein, would you not agree that in certain respects the Guidelines over-estimate the risk of re-offending I have read some of the discussions on your board regarding the overly long sentences for drug offenders and some white-collar offenders.

I am sorry to disappoint you but the Kant quote to which you refer is not self-evident to this dope. I suppose the following from Kant is probably close to what you are thinking about:

For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of real right. Against such treatment his inborn personality has a right to protect him, even although he may be condemned to lose his civil personality. He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens. The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: “It is better that one man should die than that the whole people should perish.” For if justice and righteousness perish, human life would no longer have any value in the world.

My answer is a practical one. I not purely utilitarian, although I love Bentham largely ’cause he was practical, honest, and had himself stuffed at his death. In truth, I don’t think anyone is purely utilitarian or purely retributive.  As I indicated there is a place for retribution even though, for me, the utilitarian tends to predominate.

Yes, sentences are now too long no matter the theory you ascribe too. That is the “fault” of the Congress and Guidelines. But see below.

(a) But would you not agree that the Guidelines and the sentencing commission are far from what Judge Frankel originally envisioned? It seems to me that far from being the democratic and representative commission that Frankel envisioned, the Commission enacts enhancements more or less based on a knee-jerk reaction by Congress (often without empirical support for the enhancement). A good article by a prominent federal public defender on this point (covering a variety of offenses) is this:

Amy Baron-Evans, The Continuing Struggle for Just, Effective and Constitutional
Sentencing After United States v. Booker (Aug. 2006) (unpublished manuscript),
available at <http://sentencing.typepad.com/sentencing_law_and _policy/files/struggle_for_constitutional_sentencing_after_booker.rev.8.16.06.doc&gt;

What is your response? The reason for this question is, as I read the history of the Guidelines, as originally envisioned, the Guidelines were far from what they are today and if they had been implemented as originally envisioned, they would not act as a “one way ratchet up” but would also limit punitiveness (or act as a floor for punishment and a ceiling for punitiveness). There have been far more number of sentencing guideline amendments over the years increasing sentences than there have been decreasing/allowing for departures.

Sure, the Guidelines do not function precisely as Frankel envisioned. It is also clear that the Commission reacts in a way that follows the will of Congress. So what? Congress has the Constitutional right to set up such a scheme, and in that sense there is nothing undemocratic about it. Ms. Evans would be very happy with the Commission if it called for puny sentences. She is not happy with it because the Commission calls for stiff sentences. To my way of thinking, the Commission is doing what Congress wants and I find nothing objectionable to that behavior as a Constitutional matter.  In fact, that is quintessentially the job of the People’s elected representatives rather than judges who are not elected. Now, I too would prefer shorter sentences. I say, again, so what? Judge are no better in selecting the rationale for sentencing and the length of sentences generally speaking than the Congress and the Commission. More to the point, those are purely policy choices that in my estimation should be made in a democratic environment that reflects the political will of the electorate. That is hardly “knee jerk” unless you think the chaotic business of democracy is “knee jerk.” Indeed, the present movement in Congress and the Commission–from both sides of the Congressional aisle and all sides of the Commission–for moderating long prison sentences is proof that the system is reflective of the will of the people. The pendulum is swinging back, and that push came from the People’s representatives in Congress and in the Commission established by Congress.

 (e) You have stated that believe in empirical based sentencing but how would you reconcile that with “democratic” sentencing. I have seen quite a bit of research that indicates that most people don’t think criminals are punished enough. And if it were up to some, they would not only imprison a criminal but would like to tar and feather them. If you “give the people what they want,” are you not stepping away from empirical based research? 

The short answer is that politicians and lay people can be educated by the empirical. Again, the movement to reduce long prison sentences flows from such empiricism. Moreover, empirically based data can help the Commission and others give Guidance for variances and departures.  Please note that empiricism may also drive up sentences. More generally, good policy often is countered by bad politics and that takes place with any issue Congress confronts–such is the price of democracy.  Congress is certainly not populated by Platonic Guardians, and the federal courts should never aspire to become Platonic Guardians either. As Holmes said, if the people want to go to hell, it is my job to help them get there.

3. Deportation: You state that you are a legal realist but you also state that you view deportation only as a collateral consequence. I take issue on two points and would appreciate a response.

(a) Realistically speaking, deportation is one of the most severe sanctions available and it is virtually assured after a federal criminal conviction (many federal convictions qualify as CMTs or Aggravated felonies). Additionally, once deported, a defendant is very unlikely to ever be re-admitted to the Untied States. How is that not a sanction?

It is a sanction. However, it is a collateral sanction. More practically, if the alien doesn’t have to serve supervised release, his criminal punishment is less severe than the sentence of an American citizen.  That is, an American will serve prison time and then supervised release time. The alien will serve prison time, but arguably no supervised release time ’cause he or she will be south of the border.

(b) If a criminal is deported (again assume its to a far off land and not Mexico), realistically speaking many of the 3553(a) factors just dont apply. An example: you dont need to protect the public from a person that will likely be deported (if they have an aggravated felony). Of course we can get into hypotheticals about how they might come back to the US and go on another criminal spree, but that just appears to me to be a parade of horribles.

I am not sure about the meaning your question, so I reformulate it. I think you ask: If a person is deported to some place (say China) where it is unlikely that they will ever be able to come back to the US, should not that person’s sentence be lighter ’cause specific deterrence does not apply? Maybe, but probably not. Somehow, they got here once. So, general deterrence applies. I also think all the rest of the section 3353(a) factors probably apply too. In short, I reject much of the premise of your argument. I don’t go easier on folks who are deported except perhaps when determining whether to impose supervised release, and that decision is based almost entirely on utilitarian concerns.

__________

In addition to answering the law student’s questions, I hope this post stimulates some discussion. We shall see.

RGK

Posner on Case Workloads & Making Judges Work Harder

Professor Collins has another post in his series on Judge Posner entitled Posner on Case Workloads & Making Judges Work Harder that you ought to read. In general, Posner thinks that judges don’t work hard enough. Specifically, in this post, Posner is described putting questions to a lawyer from the bench in a real case about the workload of Administrative Law Judges in the Social Security Administration.* The exchange between counsel and the judge are interesting.

I have previously written about the work of the SSA. The nearly one million case backlog is scandalous.  But I don’t think that the fault is with the ALJs. Unlike Judge Posner, I think ALJs in the Social Security system have so many cases that they can’t do their jobs very well, although most of them in my experience try hard.**

Whatever one thinks of the SSA and the dispute it has with the ALJs, Posner’s hard-headed views about the workload of judges is refreshing. Those views are worth considering, and Professor Collin’s piece gives you that opportunity. By the way, I would be very interested in hearing from those lawyers who have social security disability practices about whether they think ALJs have too many cases.

RGK

* According to Professor Collins,

The Plaintiffs were members of the Association of Administrative Law Judges (all administrative law judges). They filed a complaint contesting a Benchmarks and Directive issued by the Social Security Administration (SSA) imposing an agency-wide requirement that SSA administrative law judges (ALJ) decide 500-700 cases per year. The ALJs alleged that SSA had imposed an illegal quota on them and thus violated their right to decisional independence under the Administrative Procedures Act. The District Court granted the Defendant’s motion to dismiss on the grounds that it lacked subject matter jurisdiction.

**Remember that federal district judges review SSA appeals from denial of benefits. At least in my chambers, SSA appeals are among our least favorite line of work. See here.

H/t How Appealing.

%d bloggers like this: