Crack-addicted hookers and the ethereal


Photo Credit:  ziazia by permission.

As I said in an earlier post, the trial courtroom is not mystical.  It is a real place where, all too frequently, the judge hears horrid accounts of awful things.

As I write about the role of federal trial judges, I cannot stress too much the importance of confronting and embracing this realism.  Understanding theory and doctrine are critical to the trial judge’s work, but seeing things for what they truly are and saying so is equally important.

The aging, crack-addicted black prostitute–convicted of being a minor player in a drug ring who hung herself in the cell adjacent to my courtroom shortly after I sentenced her–provides an example.  We federal trial judges must be concerned with the disparate impact that the crack laws have on young black men.  However, the deadly carnage that those young black men inflict upon the least among us is not ethereal.  It is a reality that cries out for expression in the starkest of terms.

To borrow a phrase from the elites (that I otherwise abhor), we should not fear to judge.  This idea–nothing more sophisticated than telling the uncomfortable truth–will be a recurrent theme in posts to come.


A to and fro with Scott Greenfield at Simple Justice on the question of bail

Image credit:

Image credit:

Yesterday,  at Simple Justice, Scott wrote about an op-ed piece in the New York Times authored by a lay person (whose biography is lefty)  that advocated that bail should never be required. Apparently, the use of bail, particularly in the New York state courts, remains ubiquitous. Unlike the author of the op-ed piece, SHG unpacked the use of bail with his customary brilliant blend of cynicism and realism.

Anyway, I wrote a comment and the following to and fro resulted:

Me:  According the NYC Comptroller, it costs $96,232 per inmate per year at Rikers. While the federal system (Bail Reform Act of 1984) is hardly perfect, the preference for release and then supervision by pretrial service officers under strict conditions is a decent model. I can’t remember the last time I saw a federal case in our court where bail (money) was required.

Of course, we also engage in outright “preventive detention” which is an anathema to many. That said, there is a certain honesty required by having to state the reasons the judge is detaining someone, even if that explanation is contained in “fill in” the blank form.

By the way, I did a lot this type of work while serving as a Magistrate Judge for five years. On the other hand, I don’t know a damn thing about New York.

Scott:  The quantity of drugs in SDNY and EDNY tends to make the detention presumptive, and rarely can a defendant overcome the presumption. I really hate that.

On the other hand, I love PRBs with a couple of FRPs. That preserves the pool of resources available for counsel.

Me:  Re: drugs in SDNY and EDNY:

In terms of drug cases, measured on a per judge basis, for the period ending September of 2014, our per judge felony criminal caseload was 228. SDNY’s number was 64 and EDNY’s number was 81.

We ranked 7th in the nation and 2nd in the Circuit. From 2008 to 2012, drug convictions comprised the largest portion — 46 percent — of criminal convictions in federal court in Nebraska, according to a U.S. Sentencing Commission report. Of that, about 58 percent of Nebraska’s federal drug cases involved meth — more than 40 percentage points above the national average.

Out here, in a drug case, the trick is to see the pretrial services officer quickly to propose a release plan. That gives the officer time to investigate it, so the MJ can, armed with the release plan, say the presumption is overcome and he or she can do so with a straight face. The defendant may be detained initially, but reviews of detention are freely given.

Scott: I was previously unaware of the correlation of living in Nebraska and meth, but it makes perfect sense. [Zing]

Scott: [Referring to an earlier post of mine] But DRUGS and crack whores. Sorry, Judge Kopf, but I just couldn’t restrain myself. [Zing]

Me:  I have a special affection for “crack whores” but not in a PERV way.

There is both substance and gallows humor in the foregoing exchange. That is why I pass it along to you. On the other hand, it might just be babble.



Speaking of special snowflakes: Don’t breastfeed your bundle of joy on the steps of the Supreme Court!

MotheringFeaturedImageSpeaking of special snowflakes:

One of the Cincinnati mothers in the same-sex marriage case was not only denounced by protesters on the steps of the Supreme Court this week, but she also was admonished by security for breastfeeding her baby there.

Kelly Noe – who was in the nation’s Capitol fighting to have her wife, Kelly McCracken, listed as a parent on the birth certificate for their daughter, Ruby – had been quietly sitting on the steps Monday evening, discreetly breastfeeding the 10-month-old girl, when a male security guard spotted her and snapped, “You are not doing that here.”

McCracken started to argue with the guard, but Noe begrudgingly acquiesced. She stopped feeding Ruby and pulled out a pouch of baby food instead.

The couple acknowledged that on the surface, the nation’s highest court might seem a controversial place to breastfeed, but the scene around them wasn’t exactly one of heightened decorum: Nearby, protesters supported traditional marriage by yelling through a bullhorn that gays and lesbians will be condemned to hell. They also preached about the importance of doing what’s best for children.

Amber Hunt, Moms: You can’t do this at the U.S. Supreme Court (May 1, 2015).*

I hope that Ruby grows up to avoid the narcissism that her parents displayed on the steps of the Supreme Court.**


*Ms. Hunt’s makes no effort to conceal her outrage. I wonder, Ms. Hunt, exactly how one goes about “discreetly” breast-feeding a kid on the steps of the Supreme Court with protestors, television crews and reporters swarming the place on the evening before the gay marriage case was being argued.

**Please don’t start on me about breast-feeding in public. In general, I think that is perfectly fine when a covering is used. My daughter and daughter in law are both doing so. I doubt, however, they would do so on the steps of the Supreme Court discreetly or otherwise while being denounced by protesters. If they did, I would raise hell with them for using their kid as a prop and for an utter disregard of decorum at the high Court.

H/T How Appealing.

Update: An earlier version stated that these events took place on the day the SSM case was being argued. Apparently, this took place the evening before the case was argued. I have corrected my apparent error.

Milk of amnesia*

Very early Friday (tomorrow) morning, I will head to the hospital for my VAT surgery. I am hopeful that three holes in my chest will suffice rather than cracking open the sternum and ribs. Of course, I am also hopeful that the subsequent pathology report will show the lymphoma is gone.

Last time they cut on me, the surgeon and his gas-man reported that during the procedure I questioned them about whether I was dead. They thought that was hysterically funny. When, in response, I asked them for copies of their malpractice policies, they STFU.

This time around I am demanding Propofol with a chaser of Fentanyl. Happy days are here again!

I will be off-line until I sober up. That will be at least several days.


* If you loved Robin Williams, as I did, but you weren’t a huge fan of Michael Jackson, take a look at the following clip from the start to about 47 seconds regarding the utility of Propofol.

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.


Good questions from a very bright journalism student

I get questions at this blog’s e-mail address from college and law students fairly frequently. I always try to answer them, and this time I thought a blog post might be instructive. Here are four question that a bright journalism student sent me. He has a deadline, so my answers will be brief, and, I hope, to the point:

1) In your decades of courtroom experience, how have the mandatory minimum sentence laws changed the power dynamic between prosecutors and judges? In your view, are these laws an encroachment upon the judicial branch and the prerogative of the individual judge by the executive and legislative branches?

Yes, mandatory minimum sentences give much more power to prosecutors since they get to determine what charges to file and thereby decide whether to trigger a statutory minimum. Attorney General Holder has done some things to encourage prosecutors to avoid mandatory minimums where they are inappropriate and that is a good thing.

As to the second part of your question, there is nothing inherently wrong with Congress enacting mandatory minimums. After all, Congress has the power to pick specific and definite sentences for any crime on the books. That said, if you believe in the Sentencing Guidelines, as I do, mandatory minimum sentences distort them because they require the Sentencing Commission to implement those minimums and then peg the rest of the sentences around those benchmarks. In order to maintain proportionality between offenders mandatory minimums tend to drive up sentences under the Guidelines when there is frequently no good theoretical reason to do so.

2) While mandatory minimum sentences have been accused of creating one-size-fits-all sentencing, what about the possibility that eliminating them would create a nebulous system wherein the judge’s ideological beliefs would influence sentencing to the point of creating a roulette-like situation for defendants? Considering this possibility seems especially salient in the wake of United States v Booker, which made the federal sentencing guidelines advisory rather than mandatory.

This question reflects a very sophisticated understanding of the problem. The reason for the Sentencing Guidelines was primarily to avoid unwarranted sentencing disparity among like offenders. Now, judges are much more free to impose their personal preferences when they sentence people. That is becoming a big problem with judges across the nation, and even in the same district, imposing vastly different sentences for similar offenders. A good example may be found in child pornography sentences that seem to vary widely despite the similarity of offense and offenders. Thus, selective mandatory minimums are a way of imposing a minimum level of equality, albeit it at a great cost.

3) Prosecutors argue that the threat of minimum sentencing is a useful tool in extracting information that can lead to capturing bigger fish in exchange for a plea bargain, but do you feel this way of doing things can lead to a defendant being implicitly punished for exercising their Sixth Amendment rights?

Yes, but only sorta. There is no doubt that people facing a stiff mandatory minimum sentence take on more risk by deciding to go to trial when facing a mandatory minimum. But it is also true that mandatory minimum sentences provide an incentive for criminals to cooperate with the government. Whether the cost–a “tax” on the right to trial–is worth the benefit–cooperation–is a policy question that is hard to answer. On balance, I would do away with mandatory minimums not because of the trial “tax” but because they skew the Guidelines and detract from the Sentencing Commission’s ability to do the job it was designed to do by imposing external minimums that may have little or nothing to do with the proper sentence.

4) Is there a poignant case that you presided over which illustrates the ineffectiveness or insensibility of these laws? Or conversely, their necessity.

I sentenced a young black man (around 30) to a mandatory life sentence because of two relatively minor prior drug felonies after he rolled the dice and went to trial on a third drug charge. The evidence against this fellow was overwhelming and he was an idiot for going to trial. He had a good lawyer who he ignored. He fully knew the risks. He was involved with crack and powder cocaine. He was not a drug king pin, but he did harm to his community by making crack and selling the drug. No guns were involved, and he was not otherwise violent. I leave it you to judge whether sending a 30-year-old drug dealer to prison for the rest of his life because of two relatively minor prior drug felonies is good or bad policy.

For experienced prosecutors and criminal defense lawyers who read this blog, I urge you to add your comments so that the journalism student will have the benefit of your wisdom. Thanks.


If we trust cops, we should insist upon body cameras

As I have written before, most of the time I trust cops. That’s why I am very much in favor of requiring cops to wear and use body cameras when interacting with citizens.

The Obama administration wants to spend a lot of money buying 50,000 body cameras for police officers. There is reason to think that when cops wear cameras the cops are better off and so are the rest of us:

In Rialto, California, where police began wearing body cameras back in 2012, citizen complaints against officers fell 88 percent in the first year, and use of force by officers declined 60 percent. That’s an indication that cameras don’t only document the events as they unfold, they actually change the way everyone involved behaves. As Rialto police chief told The New York Times: “When you put a camera on a police officer, they tend to behave a little better, follow the rules a little better. And if a citizen knows the officer is wearing a camera, chances are the citizen will behave a little better.”

And in Washington D.C., where a $1 million, 6-month body camera pilot program is underway, officials expect to see complaints against officers fall by 80 percent. “This gives us that independent, unbiased witness…This will make our officers safer,” police chief Cathy Lanier told The Washington Post. “It will make our department more transparent. It will reduce the amount of time supervisors have to spend investigating allegations.”

Issie Lapowsky, The White House Wants to Spend Millions Putting Body Cameras on Cops, Wired (December 1, 2014).

When Rudy Giuliani and Brown family attorney Benjamin Crump agree that cops should wear and use body cameras, it is hard to argue against the proposition. Indeed, I have seen the utility of in-car cameras in interdiction stops along I-80.

While body cameras pose all sorts of problems, and are not a panacea, if the tragedy in Missouri produces a national consensus that cops should film themselves in action and the feds should step up to the plate with money, that will be a very good thing. Besides, I just can’t wait to see a street dealer captured on tape claiming his right to privacy was violated during a “stop and frisk” as crack falls out of his pants.



Is it true, Spoon River,
That in the hall–way of the New Court House
There is a tablet of bronze
Containing the embossed faces
Of Editor Whedon and Thomas Rhodes?
And is it true that my successful labors
In the County Board, without which
Not one stone would have been placed on another,
And the contributions out of my own pocket
To build the temple, are but memories among the people,
Gradually fading away, and soon to descend
With them to this oblivion where I lie?

. . . .

Edgar Lee Master, Spoon River Anthology (1915) (E.C. Culberstson).

I am not sure, but when I die I think I want to be remembered for one thing and that is B-1, an earthen dam and a flood control and water recharge reservoir in the hills northwest of Lexington, Nebraska.* Tangentially, I participated in the building of that structure. Lawyer’s don’t get the opportunity very often to help build a structure that could last several centuries.B.1.jepg

My contribution was small.  I condemned the land where the structure was built. When the dam began to crack because the contractor erred while making the weight-bearing calculations of the soil, I represented the owner, the Central Platte Natural Resources District, in a law suit that resulted in a fix.

B-1 will outlast me. It was built to last.

When I am dust, if my children or their children or their children’s children venture into the hills above the Platte Valley and find a spot at 40°55’00.1″N 99°51’41.4″W perhaps they will remember me. If nothing else, they should stand atop the large earthen dam and, if a drought is not present, they should gauze at the wind rippled waters that back up behind the huge earthen wall. They should luxuriate in the solitude.


I hope one of them utters, “not bad.”


*At the time, the earthen dam itself was the largest of its kind in Nebraska.

A clemency proposal that deserves strong support from President Obama and AG Holder

A helpful reader brought to my attention a piece on the New York Times editorial page that proposes a complete reworking of the clemency process. Specifically, it proposes a broadly representative and non-partisan commission to make recommendations to the President about pardons and clemency.

Given my awful experience with Hamedah Hasan (Merciless), I urge President Obama and Attorney General Holder to get behind this proposal, and strongly so. They should so if only to publicly proclaim “mea culpa, mea culpa, mea maxima culpa” – “through my fault, through my fault, through my most grievous fault.” A public expiation of their manifest sins would do them and the rest of us (not to mention those who deserve mercy) a world of good. If Obama and Holder aren’t total hypocrites they will do so.

I reprint the piece in full:

On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.

It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.

In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.

The Obama administration took a stab at remedying the situation in April when it replaced its feckless pardon attorney and announced that it would consider granting clemency to thousands of low-level drug offenders serving what Mr. Obama called “unjust” sentences. The effort, dubbed Clemency Project 2014, was a promising start, but it has already run into significant hurdles, most recently a ruling barring hundreds of federal public defenders from assisting inmates in filing their petitions.

Even if the project succeeds, it is a one-time fix that fails to address the core reasons behind the decades-long abandonment of the presidential power of mercy. A better solution would be a complete overhaul of the clemency process. First and foremost, this means taking it out of the hands of the Justice Department, where federal prosecutors with an inevitable conflict of interest recommend the denial of virtually all applications. Instead, give it to an independent commission that makes informed recommendations directly to the president.

That proposal, which has been made before, gets new attention in an upcoming article in the University of Chicago Law Review by two law professors, Rachel Barkow and Mark Osler. Such a commission’s membership, the authors write, must be politically balanced and have a wide range of perspectives, including those of prosecutors, defense lawyers, judges, inmates, academics, officials from corrections and law enforcement, and victims’ rights advocates.

This design would give the president bipartisan support in making what is often a politically sensitive decision. Particularly in a tough-on-crime age, the risk of even one person committing another crime is enough to deter grants of clemency across the board. That is another argument for a well-financed commission, which can collect data on the results of clemency grants — data that could then be used to better inform future decisions.

In several states that already have such commissions — such as Pennsylvania, South Carolina and Alabama — clemency decisions are more transparent, more predictable, and much more frequent than in the federal system.

Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.

The Editorial Board, It’s Time to Overhaul Clemency, New York Times, August 18, 2014.


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?


* 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:

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