In response to “For Whom the Light Shines” @ Simple Justice

Scott H. Greenfield, a criminal defense lawyer, has another post dealing with 21 U.S.C. §851. You may remember that I posted about Scott’s criticism of some of the things I wrote earlier regarding drugs and violence.  See here.

Mr. Greenfield has written a new and related post entitled For Whom the Light Shines. I reprint a pertinent part of that post because I wish to reply to it. The part of Scott’s post that is relevant to my reply reads like this:

In a comment to post over at Hercules and the Umpire that happens to be about the government’s abuse of 21 U.S.C. §851, a topic that should concern you but probably doesn’t because it’s all federal lawyerly rather than rhetorical, Bryan Gates wrote:

I have two former clients serving mandatory life based on enhancements under 21 USC § 851 for two prior drug felony convictions . Each could have avoided mandatory life by pleading guilty, but would have faced sentences around 25-30 years. The evidence against each was strong.

One the one hand, each should have understood the consequences of the choice they were making. Plead guilty and hope for release sometime in your mid- to late 50′s or go to trial and die in prison. I understand why the prosecutors threatened to file the second prior conviction information if there was no plea. Once you have threatened to do something you need to follow up if you expect to retain credibility.

On the other hand, each of these guys got twenty to thirty extra years of imprisonment because they exercised their right to a jury trial. Out of ignorance or arrogance, they miscalculated the odds of acquittal. Yes, each in each case the government had to expend resources to try them that would have been saved had they pleaded guilty. But does a few days of prosecutorial and court resources used up justify tacking on that much time, if the crime they actually committed did not provided they simply ‘fessed up?

Whether a person admits or denies guilt has long been a factor in the punishment imposed. I’m not sure that much extra punishment is justified. Each will serve about 25 years for the crime he committed, after that they will be serving time for a bad tactical decision.

Bear in mind this is a blog comment, not a post nor a law review article. Its point, cut to the quick, is whether the trial tax of §851, effectively doubling the sentence from merely outrageously long to forever isn’t excessive. And, as Bryan notes, the decision to roll these dice is what more logical thinkers might characterize as a “bad tactical decision.” As a prosecutor once argued in response to me, defendants are presumed innocent, not intelligent.

Judge Kopf responded to Bryan (and again, bear in mind that it’s a comment, not a post):

I have seen that happen as well and I have sentenced several such folks who rolled the dice and are now serving the life sentence I imposed. I felt awful for their lawyers who did everything they could to get them to take the plea offered by the government. I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers who were just wrung out emotionally. Hang in there.

This raises problems on two levels. While Bryan writes about the brutal sentences imposed on his clients, the judge responds with a tummy rub for the lawyer. This happens a lot, when a one-word verdict is returned after a lawyer has left his heart in the well of the court. The judge will express words of comfort about a job well done to soothe the lawyer’s pain. It’s helps some lawyers get through the agony and frustration.

But this also feeds the perception that we’re a self-serving guild, only concerned about ourselves. So what if the lives of human beings, their families, their loves ones, are ruined by a knee-jerk act of Congress abused by an over-powered teeny-bopper in a tie? What about the sad lawyer, for whom real empathy is saved.

Bryan wasn’t seeking a tummy rub, but used the opportunity to ask a hard-line question: Was it really necessary that they be given the slow death penalty because they made the wrong tactical decision? To put it in the converse, isn’t 25 years, twenty-five long years, enough to make the point? Mind you, they weren’t spraying the streets with machine gun bullets killing innocent children, because if they were, the §851 enhancement would be the least of their problems. They were drug dealers.

Judge Kopf gave his answer:

I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers…

Whether this reflects a lack of empathy, humanity or a belief that adding another 25 years to a 25 year sentence just isn’t sufficient to make a judge wonder whether he’s nothing more than a robed executioner for politicians isn’t clear.

Maybe Judge Kopf would feel differently if he had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too. Maybe then he wouldn’t dismiss their slow death so easily.

I have several reactions to Mr. Greenfield’s post.  In no particular order, here they are:

*”Rubbing the tummies” of defense lawyers after they have had the shit kicked out of them in a trial that they knew would end badly resulting in a significantly increased sentence for their clients, gives me comfort. Once in a while, it may also comfort those lawyers. Maybe I should stop the practice, but I doubt I will.

*Criminal defense lawyers, like prosecutors, have an emotional “shield.” I don’t. By this I mean that the role of a federal prosecutor or a federal defense lawyer allows, in fact demands, that the lawyer earnestly believes in the  “justice” of his or her cause. I don’t have that luxury. At least as I envision my role, I am supposed to be open and agnostic. Moreover, because I serve at the trial level, I am also supposed to be an applicator of a complex series of rules that one hopes in the very long run will produce some sort of “justice.” There is no reasonable expectation that “justice” writ large can be served on a daily basis. In fact, it is rarely my proper role to be a judicial policy maker. That’s for the big boys and girls. As I once told a federal public defender, “I don’t do justice, I do law.” Most of the time, I wouldn’t know “justice” in the metaphysical sense if it bit me in the ass.

*Sentence an aging crack whore, have her hang herself in the cell adjacent to your courtroom right after you have done so, and then ask yourself how much empathy you feel for the rat bastard who knowingly feed her addiction. Do I have empathy for the self-proclaimed”gentle”drug dealer I sentenced to life in prison, who directed his crew to sodomize a teenage girl with motor oil ’cause she didn’t pay her drug debt, and who beat others with baseball bats or pipe wrenches when the unfortunates threatened to snitch or failed to pay their bills? No, I don’t. But what about great judges like Bennett or Gleeson or Weinstein, you say. Haven’t they overcome similar experiences and remained able to seek “justice” above all else? Sure, in a manner of speaking. But, they envision their judicial roles much differently than I do. They earnestly believe that their judicial role is quite broad. I earnestly believe that my judicial role is quite narrow–go ahead, if you like, and murmur something about the German judges of WW II. Indeed, it may also be true that Bennett or Gleeson or Weinstein are simply better human beings than I am, but only the Gods, and not criminal defense lawyers, get to judge me on that question.

*I don’t lack for conviction and I am no right-wing nut job despite the fact that a Republican President appointed me. I have prosecuted a Republican state attorney general in an impeachment proceeding. I have dissented, while sitting by designation, when the Eighth Circuit said the First Lady, Mrs. Clinton, lost her attorney client privilege because she spoke to the White House counsel in the presence of her personal lawyer. I have declared unconstitutional state and federal “partial-birth” abortion statutes, both of those decisions have ended in the Supreme Court and serious personal consequences have ensued. I have written a variance decision based upon post-offense rehabilitation, later reversed by the Court of Appeals, favoring a young black woman, who I originally sentenced to life in prison for a “crack” conspiracy despite the fact that she had no criminal history. After the reversal, I publicly urged two Presidents to commute her sentence. So there!

*Section 851 enhancements pose a huge problem for the judiciary as pointed out by Judge Bennett and later Judge Gleeson. I do have sincere empathy for the defendant who get’s hit with a section 851 enhancement because of a dumb decision or merely because the defendant insisted upon a jury trial. But, discussions of empathy and generalized notions of “justice” obscure the legally significant question. The important legal issue is how to balance the Executive’s power to charge, and the federal trial judge’s responsibility to impose a sentence that is not grossly disproportionate to other sentences of similarly situated individuals. See here. Being a fan of rules, I am beginning to develop some ideas about how federal trial judges could practically strike the proper balance by using court rules or standing orders to require the Executive to explain the basis for seeking such enhancements. We shall see if my ideas bear fruit.

*The post to which I reply ends this way: “[I]f [Kopf]] had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too[,]  [m]aybe then he wouldn’t dismiss their slow death so easily.” After reading this conclusion I was mad and I wanted to scream “that’s really unfair and you know it.” After some reflection, I will stifle the shout. In truth, Mr. Greenfield’s point is a good but disturbing reminder that I sentence human beings and not abstractions.

RGK

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