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 

 

Shutdown and sentencing

More fun today. Wearing my long black robe, I called the Bureau of Prison from the courtroom to hold a previously scheduled and ordered sentence reduction hearing under Rule 35(b). The hearing was to be held “on the record” but over the phone. The lawyers were in the courtroom and the inmate was supposed to be on the phone. The government asked for the hearing. Last time I checked, it’s cheaper to use the phone than fly an inmate to Lincoln.

Guess what? No one answered the phone at the prison. Not even a voice mail message telling me to have “Have a nice day!” Bummer. Think I’ll go home. No one complies with my orders anyway. Apparently, compliance with court orders is optional now that the man with the golden tan has sent everyone home.

RGK

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