When a quasi-sick sap sentences a really sick controlled substance seller

Yesterday, I did something out of character–I don’t think I have ever done anything quit like it before. I sentenced a guy in his early fifties to time served plus a life of supervised release even though his criminal history was IV, he sold drugs and probably kept a gun under his sofa. He cooperated with the government, but the cooperation, while helpful, was not of the “hero” variety.  The government moved for a departure under the Guidelines and the statute. The really good and very fair AUSA recommended a thirty percent reduction from the low-end of 150 or so months under the Guidelines. By doing so, the government essentially freed me from the ten-year statutory minimum sentence.

As a part of, and in conjunction with, granting the departure motion, I varied downward even more than I might otherwise have done ’cause the guy was really sick. In fact, over the last 23 years as a district judge, he is the sickest person I have seen at the time of sentencing. And I have seen a bunch of sick folk.

Sentencing had long been delayed for significant surgeries and other important medical procedures. The defendant suffered from serious heart problems and serious problems with cancer. The fellow had a list of medications as long as your arm. He could barely walk with his cane. Yet the Bureau of Prisons said “no problem,” they could care for him in a humane fashion. Incidentally, I don’t doubt the BOP.

In the end, I just couldn’t see that it made sense to put the guy in prison. I uttered a bunch of mumbo-jumbo at sentencing that I truly meant and I hope makes sense, but it was, nonetheless, a rationalization for my instinct. My gut told me that no one–the public, the defendant, the BOP, or other drug dealers–would be served well or deterred by a prison sentence for this fellow.

Now, here’s the kicker. I have had cancer (Hodgkin’s lymphoma), and I may still have it. In January, I will undergo chest surgery (via VAT) to take out a nodule in my lung. The surgeon will also strip out some lymph nodes adjacent to the lung. The humor, I mean tumor, board thinks we should definitively determine what is going on in order to deal effectively with cancer if there is some still lurking in or around my lung.  Because of the anatomy of the human body, thoracic surgery is the only option.

So why do I write about this? I do not write to discuss the merits of my sentencing decision. Rather, I write about this case in pursuit of my “jihad” for transparency. Did my health status impact my sentence? I don’t think so, but the truth is that one can never know for certain about such things.

In the real world, judges have personal issues that they balance all the time against an abstract standard of impartiality. These types of issues are not susceptible to black letter ethics rules or law. Such decisions are made by the judge himself or herself after serious reflection. We do our best and consider these matters with utmost seriousness, but in the end the public and the bar must of necessity rely upon our sense of honor and our knowledge of ourselves. That sounds wishy-washy. It is. But, that’s life and that’s the truth.

RGK 

 

24 responses

  1. Judges call ’em as the see ’em. Hopefully the defendant will appreciate this and reciprocate by doing something constructive for a change.

  2. I should like to offer another explanation. I have read your blog from the beginning, often disagreeing intensely, sometimes saying so. But your intelligence and thoughtfulness keep me engaged. I consider your politics to be on the conservative side of the spectrum, as generally understood, far different from mine. And one aspect of the conservative mind and way of thinking is a lack of compassion in general (Romney’s 47% comes to mind). Once, in a conference with a federal judge, I said I wanted his “sentiments” on a pure legal point I was making. He said, “mine is not a sentimental job.” And so it isn’t.

    Yet, we have often seen conservatives not realize the need for compassion until something bad happens to them or someone they love. Sen. Portman from Ohio was a staunch opponent of gay marriage (he was a sponsor of DOMA), until his son announced he was gay. Then he supported it.
    http://alturl.com/3fvhn. There are many such examples, and of course “a liberal is a conservative who’s been arrested” is a cliche.

    You did the right thing yesterday, and I offer you my compassion for your own difficult health decisions. But I would hope that it moves you toward a more compassionate view of everyone who appears before you. They are human beings, not just numbers in sentencing guidelines. That’s just as honorable; indeed it’s even more so.

  3. Judge,
    I think that the case you shared is an illustration of what we want in our judges, and not some failure of the system. Lady Justice carries a sword and scales. The scales are a call for those who exercise power to truly engage in a balance of elements that support and oppose a case. In this case, you did just that and should be commended for it.

    Thank you for what you do in service of justice.

    Respectfully,
    Ron

    P.S. I am avoiding delving into the merits of the “wise Latina” comment of Judge Sotomayor and a correlation between that and the instant case.

  4. Oh well, at least I tried…Your terse reaction is symptomatic of a much larger problem with American culture, which is a violently angry, mistrustful and hostile place these days. But then, I’m just an effete East Coast New York liberal….

  5. I love your decision and your humanity. Especially in the face of reading Just Mercy now about defending wrongly convicted prisoners on death row. And I don’t for a minute believe we can wholly separate our decisions from our experiences. Good luck with the VAT.

  6. Stefanie I am a NE liberal, an endangered species, you are just getting a dose of do not tell me about your feelings nobody cares legal education from the Judge. He still recites the slogans from law school, but like most folks out here he is decent and kind hearted and his empathy has learned to operate behind his back.

  7. Judge,

    In my view, it’s not a bias or a basis for recusal but simply part of your life experience that informs your sentencing decisions.

    Best, Norm

  8. I’m a nurse so I have to operate in full empathy mode if I am to be effective at my job. That is not to imply that I never take the tough stand, that is required as well. But withou understanding of the nuances of the human condition I am merely treating the symptoms.

  9. Richard,

    I appreciated your comment, and did not mean to be terse. But, of course, you are correct to remind me of the impact of our culture on my judicial thinking. Kinda reminds of the nature v. nurture debate. In any event, thanks for your engagement, and I apologize for leaving the impression that I did not consider your comment seriously.

    All the best.

    RGK

  10. Stephanie,

    Very interesting comment. I hadn’t thought about medicine that way. Interesting question whether law should be different, but that is a discussion for a different day.

    All the best.

    RGK

  11. Stefanie What you say about nurses is equally true of lawyers, which is why so many nurses are attracted to lawyering, and in law school they ignore nonsense about real world from faculty.

  12. Ron,

    I am glad that you avoided the “wise Latina” remark ’cause that would have caused me to say something about plodding, unfeeling Germans. True, but depressing.

    Seriously, thanks for your engagement. All the best.

    RGK

  13. Life of the law is experience, not logic. Sometimes it takes a life changing experience to bring that to reality.

  14. More fully:The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

    You of course know the author. And more importantly may the force be with you on your medical trials and treatment. Your courage and tenacity speak volumes beyond words.

  15. Shouldn’t you wait for a few days before writing about this? For all we know, this could be the first shot in a Pepper like ping-pong across the courts. Did the government tell you, they won’t be appealing? FWIW, it seems a very reasonable sentencing decision to me but so did Pepper-I.

  16. Several years ago, I happened upon a C-Span program showing Judge Kozinski talking with a group of high school students (I think they were student journalists on their school newspapers). Since Judge Kozinksi is one of those rare people who are always worth listening to, I kept watching. Most of the questions the students posed were along the lines you might expect from a group of serious-minded young people, until one asked something like “How do you know you’re deciding a case according to the law and not according to what you think is right?” Validating my belief that Judge Kozinski is always worth listening to, he responded along the lines of “It can be hard, but the way you try to do that as a judge is to remember to ask yourself that question.”

    While trying to find that interview today, I found instead on the Federal Judicial Center website an article by Professor Terry Maroney “Emotional Regulation & Judicial Behavior,” 99 Cal. L. Rev. 1485 (2011), that thoughtfully examined different ways to reach the “right” (rules-based) answer in what can be emotionally charged situations.

    I think Your Honor’s conclusion in this post captures both Judge Kozinski’s and Professor Maroney’s points. I might add an observation I’ve gleaned from some of Your Honor’s previous posts, which is that being humble helps too, in the sense not thinking that one’s personal sense of justice gives better answers than following the law. We trust jurors to act this way too, even though Professor Maroney’s article has me thinking that the standard jury instructions could be improved to give jurors better tools to do it.

  17. TF,

    Good point and it was one that I considered. But since I was not talking about the merits, I thought it was OK.

    All the best.

    RGK

  18. Charles,

    Yes, I think you are right. Be skeptical about yourself and your own motivations. It is surprising what you learn.

    The question you raise regarding jurors is an excellent one also. I don’t have much of a good answer. I will tell you something though. That is, in my experience, many jurors seem to have the intellectual humility that you speak of naturally.

    All the best.

    RGK

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