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

Hadley Arkes, a poor polemicist

Professor Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. He is a political scientist.

Arkes is not a fan of mine because of the partial-birth abortion cases I decided and which ended up in the Supreme Court. See, e.g., Hadley P. Arkes, Gonzales v. Carhart: What Hath Kennedy Wrought?, The Federalist Society (June 3, 2007)  (“The old, implausible charge of ‘vagueness’ could be rolled out again, and one could count on Judge Richard Kopf in Nebraska to sustain that claim, or virtually any other colorable ground that people were audacious enough to offer as a ground for challenging the law.”) (requires download of PDF); Hadley Arkes, Good May Yet Come Gonzales v. Carhart opens up a possibility, albeit slight, for further restricting abortion, National Review Online (April 24, 2007) (“My own apprehension was that the Dr. Carharts in the country, or the agents of Planned Parenthood, would simply come into court again with any of the rationales that have worked in the past. Judges like Richard Kopf in Nebraska have already shown themselves altogether willing to credit any argument that is offered by the challengers.”); Hadley Arkes, Natural Rights and the Right to ChooseCambridge University Press pp. 122, 140, 239 (2004) (stating, among other things, that by “preserving [his] commitment to abortion unimpaired, unqualified, [Kopf is] compelled to say things that judges, or cultivated men, could not have said in public in another age. . . . In other words, Dismemberment ‘R’ Us.”).

Now, I don’t care a bit about what Arkes thinks of me or my decisions. Indeed, he is not a lawyer, and I find his thinking shallow. Moreover, he is a “natural rights” devotee and I agree with Bentham that such stuff is “nonsense on stilts.” That said, Brother Arkes is entitled to pick his own poison. But I draw the line when he accuses me of being a Catholic-hating religious bigot.*

In Another Opening, Another Show: The Red Mass of 2014, The Catholic Thing (October 7, 2014), Arkes writes the following about me in the context of the Red Mass** attended by Chief Justice Roberts, and Associate Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Elena Kagan at St. Matthew’s Cathedral in Washington, DC:

In the aftermath last year of the Hobby Lobby case, one federal judge, Richard Kopf, denounced that decision as one produced by “five male justices of the Supreme Court, who are all members of the Catholic faith.” The offense imputed to these Catholic judges is that they shielded a businessman from the obligation to purchase abortifacients for his employees when he bore deep moral objections to abortion.

“To the average person,” said Judge Kopf, “the result looks stupid and smells worse.” No, the average person is more likely to wonder why women cannot afford contraceptives and abortifacients for themselves. Or why the provision of these devices should become the obligation of an employer – and why they should be forced on a generous employer who has moral objections to them.

A small trip down memory lane may bring back Judge Kopf as the federal judge who treated with contempt the work of the legislators in Nebraska in seeking to forbid the grisly procedure named “partial-birth abortion.” In that procedure the head of the child was punctured and its brains sucked out. But Judge Kopf couldn’t see how this procedure could be distinguished from others, quite beyond challenge.

For other abortions “routinely ‘deliberately and intentionally’ deliver ‘vaginally’ a ‘substantial portion’ of a living fetus in order to kill it.” In other words, Dismemberment R Us. That is what abortion involves, all thoroughly sustained by the Constitution, in the eyes of Judge Kopf, and all apparently beyond the reproach, except from Catholic judges appointed by a Republican president.

Arkes is referring to and partially quoting from an earlier post of mine entitled Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases.  In the part of the post that Arkes summarizes inaccurately, I made a point about judicial decisions, appearances and the public’s acceptance of the law. This is what I wrote:

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.

(Emphasis added.)

It is a poor polemicist indeed who blatantly and consciously misrepresents another person’s views in an effort to score a cheap point. But, in truth, such conduct, while in poor taste, is probably only a venial sin. So, Hadley, say you’re sorry–it is the natural thing to do–and all will be forgiven.

RGK

*Being Catholics, my wife and five of her siblings would find such a suggestion amusing. Candor requires that I admit that a sixth sibling became an Episcopalian–she was always a wild child.

**I am mystified by the Professor’s attack on me in an article about the Red Mass.

%d bloggers like this: