An irrelevant and selfish concern for the quality of my sleep

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Photo credit: Peter Dazeley/Getty Images. See here for the Guardian article.

I presently have several death penalty habeas cases from Nebraska (and one from Arkansas). Earlier, I have dealt with other death penalty habeas cases. I have also written an appellate opinion affirming the imposition of the death penalty.

In the past, I have followed the law and parsed the facts in these difficult cases knowing that my decision would result in the imposition of the death penalty. I have no reluctance to do the same in the future if the law and the facts warrant it. On at least one occasion, I have seen to the issuance of the writ when the law and facts dictated that the offender could not legally be put to death. I have no reluctance to do the same in the future if the law and the facts warrant it.

The Nebraska legislature is now, for the first time in recent memory, seriously debating whether to do away with the death penalty. See How Appealing (referring to an extensive Omaha World-Herald article). It would be entirely wrong for me to try to influence that debate, and I have no intention of doing so in this post or otherwise. The decision is entirely up to the Nebraska legislature, the Nebraska Attorney General, and the Nebraska Governor. I have absolutely no opinion which side has the better argument.

The foregoing said, if the death penalty were repealed, I would sleep better at night. How’s that for being both irrelevant and selfish at the same time.




22 responses

  1. Judge,

    That you take no stand, I believe. That you would not attempt to influence the decision I believe. And of course those are proper positions for a judge.

    But that you have no opinion? I don’t believe it for a minute. Oh, I can believe that you can fully understand how some good people can favor (even vehemently favor) having a death penalty while others can (and with equal vehemence) oppose it. And I can certainly believe that the death penalty, either way, is not high on the list of policy matters you care about. But no opinion? I don’t buy it.

    With all respect.

  2. Jeff,

    It is probably more accurate to state that I am ambivalent–meaning that I have mixed feelings and contradictory ideas about it.

    All the best.


  3. That I believe. And congratulations!

    As F. Scott Fitzgerald said, “The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.”

  4. Judge, one of the things I have to thank you for is the reading you or your commenters have inspired. There was The Immense Journey by Loren Eiseley that you recommended, and which is great. And just in the last few days I finally got around to reading, and just yesterday finished, something I found many months ago through a reference to it by one of your commenters – the work of Professor James Whitman on the theological origins of the “reasonable doubt” standard, on the most fascinating and illuminating things I’ve ever read about the law:

    (Actually, the pdf I linked to above is to the article on this subject he wrote in 2005, whereas what I read was its adaptation in book form published in 2008 and available on Scribd, but the substance is very much the same.)

    As is the case with most scholarship, the article’s fascination would not be diminished by jumping first to its conclusion, which is absolutely relevant to this post.

  5. John,

    You are too kind. I, too, feel the same way about the many readers who have commented in ways that at once startled and educated me.

    All the best.


  6. John,

    The abstract notes that the article

    includes a discussion of an important jurisprudential distinction: the distinction between proof procedures and what the paper calls “moral comfort” procedures. Without a proper comprehension of this distinction, we cannot understand the original significance of “reasonable doubt,” or more broadly the structure of pre-modern law.

    “Moral comfort?” How I crave it!

    All the best.


  7. Not to put too fine a point on it, the first sentence of the article you linked to, even as modified by the second sentence, is flat-out false. The sentences:

    “No person in our country can be convicted of a crime unless there is absolute certainty about his guilt. That is the theory, at least.”

    We might argue about when or whether this or that doubt is “reasonable doubt.” We might decide that the term is somewhere between undefinable and incomprehensible. But one thing we know is that it does not mean “beyond all doubt.” Nor does the fact that 12 jurors believe that guilt is proved by proof beyond a reasonable doubt does not mean that any of them, let alone all, are absolutely certain that the person is guilty.

    And the potential uncertainty in fact is reflected in the uncertainty built into our jury instructions which commonly tell jurors that absolute certainty isn’t the test. It’s beyond a reasonable doubt, not beyond all doubt.

    All of that is aside from the inherent worthlessness of “certainty” as the measure of whether anything is factually true.

  8. It’s funny you should call attention to that, because I too noticed it, as it certainly stuck out like a sore thumb as obviously false. I can only conclude he misspoke there, because he doesn’t repeat the mistake later, and pretty clearly seems to know what he’s talking about. Please give the article a chance, as, as I said, I found it one of the most worthwhile and fascinating scholarly articles about the law I’ve ever read.

  9. I just checked the book version, published three years later, and there the first sentence doesn’t speak of “absolute certainty,” but merely of “with certainty.” The latter is fair, particularly in light of the old phrase still used today, and which he discusses and which is highly relevant to his argument – “moral certainty.”

  10. “It would be entirely wrong for me to try to influence that debate, and I have no intention of doing so in this post or otherwise.”

    I don’t understand this. I can see how it would be wrong for Hon. Richard G. Kopf., District Judge, to use his judgeship to influence the debate. But aren’t you also Richard G. Kopf, Nebraska citizen (and Nebraska taxpayer, Nebraska property-owner, etc.)? I don’t see how it could be wrong for a Nebraska citizen to weigh in on a matter of Nebraska law and policy.

    (And if it is wrong for you to weigh in on sentencing policy matters, then you have some ‘splaining to do re a certain paper that just got published under your name…)

  11. As a habeas practitioner, I am thankful every day that my state has no death penalty. A whole subfield of arguments and counterarguments that I don’t have to know about and don’t have to deal with.

  12. L,

    Interesting point. Remembering that the United States is a Republic, here is how I dissect the matter:

    1. As a general rule, federal judges are ethically prohibited from trying to influence state legislation even when they allegedly speak in their personal capacities.

    2. My article was on federal law. As a matter of judicial ethics, and subject to certain restrictions that are not applicable, I am entitled to express my opinion on federal law in articles such as the one I wrote.

    All the best.


  13. While I agree with the death penalty in principle, I fear it in practice, as we get it wrong too often. I am heartened by your remarks, Judge Kopf.

  14. Judge Kopf,

    Like you, I used to be ambivalent about whether the death penalty should be put in this country’s dustbin of history. I was torn between my more primal desire for revenge on the truly evil people in society and the uneasy feeling I had that in practice, there was something wrong with who was actually being sentenced to death, and the potential for mistakes. Then, when I was still in private practice, I got involved in a pro bono matter with The Constitution Project. The organization, through a bipartisan committee consisting of both death penalty abolitionists as well as death penalty advocates, released a report (which can be found here: whose goal is to prevent and correct errors in the administration of capital punishment by improving the system.

    After spending many hours on the various issues and interacting with experts from all sorts of different fields, I became very much anti-death penalty, but not for the reasons you perhaps might guess. While working on that project, I realized just how few people this system is geared toward (in comparison to the millions of defendants/inmates in this country’s prisons). Just that one project involved many lawyers and experts, spending hundreds of thousands of dollars worth of time trying to improve a system that, in 2014 at least, executed 35 people in the entire country.

    When I realized the monumental amount of time and money that is spent by defense lawyers, prosecutors, judges, experts, paralegals, politicians, prison officials, journalists (really, the list is nearly endless) all trying to get perfect a system that affects a handful of people a year, I thought, my God, what a waste. All that time and effort could be used on something so much more productive (with the exception of politicians, of course). Maybe in theory our government should execute the truly evil members of our society (whatever that may mean), but at the end of the day, it’s all such a wicked, terrible waste for a few dozen people.

  15. It’s not even informative if you can’t/won’t/don’t explain the circumstances under which it’s “absolutely necessary.”

    I’m not getting into the merits argument here since the good judge knows my position on the death penalty – as does anyone who ever reads my blog (though Bill Otis claims that “fair minded” people won’t and he “hardly ever” does in part because I engage in screeds; pot calling the kettle black, but that’s all beside the point).

  16. Absolutely necessary to me is the Chesire home invasion in Ct a few years back. The wife and daughters were brutally attacked and then burned to death. I don’t know what other punishment fits that kind of crime.

  17. Pingback: Cheerfully speaking ill of the dead « Hercules and the umpire.

  18. Jeff beat me to it.

    I was about to suggest that you join me and Jeff Gamso down at the local watering hole. Let me buy you a couple martinis, then we’ll see if you have an opinion or not. The smart money bets you do.

    You have a nice blog, by the way. I’m glad I stumbled over here.

  19. Jack is, indeed, in Toledo. And my recollection is that he’s actually a bourbon man.

    But the three of us certainly could kick back a few.

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