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.

RGK

We can’t handle the truth

In this post, I write about drugs, race and sentencing.  For context, I recommend that you watch “The House I Live In” which recently aired on PBS.

You will hear and see my dear friend, United States District Judge Mark W. Bennett, from Sioux City, Iowa and defense attorney Jim K. McGough from Omaha, Nebraska.  Bennett is one of the best federal district judges in the nation.  He is an even better human being.  McGough is a tough-minded, intellectually honest and extremely competent criminal defense lawyer.  He is a fine person too.  What they have to say is worth hearing.

You  will also get an accurate but utterly depressing view of black society in many places in this country.   Despite what you might think, Omaha and Lincoln fit right  into this narrative.

Most every other part of the film enraged me.  When one of the commentators suggested that our government’s drug laws are the functional equivalent of the holocaust, I nearly puked.  What a disgusting and contemptible comparison.

The film got me thinking about what I would say at sentencing to a typical young black drug  dealer (and his enablers) if I were entirely truthful.   If I were to be candid, I think I might say the following:

Your crime is despicable.  You prey on the weakest members of what is left of your community.  You are beyond rehabilitation (and perhaps redemption).  In an earlier age, you would be termed a sociopath. A very long prison sentence, as called for under the federal Guidelines, will, if it does nothing else, incapacitate you.  And, by the way, I don’t think it is an accident that crime rates have dropped dramatically as the  length of prison sentences have risen significantly. 

You lack an education.  You can barely read.  Except for your mother and your girlfriend who unwittingly empower your criminality by their slavish devotion, you have no family support structure that is worth a damn.  You have never held a job for more than a month or so.  You father and then totally ignore your children.  You have a criminal history that began when you were very young and continued unabated until the present.  You carry a gun like a plumber carries a wrench.  

I don’t blame you.  You never had a chance.  In your formative years, you lived more like a feral puppy than a child.   You were ferociously lovable, but wild beyond imagination.

Our society cannot afford to do the things necessary to address the root causes of your depravity.  More to the point, we don’t have the stomach for it.  If we were serious, the next child born to a child would be scooped up and taken away.  And it would get far more authoritarian  from there.  Frankly, prison is a cheaper and ultimately more palatable alternative to doing the things we would otherwise be required to do.

Having thought these things, I will never say them.  Why?  To paraphrase Colonel Nathan R. Jessup, the truth is we can’t handle the truth.

RGK

Crack-addicted hookers and the ethereal

Moon.over.Rockies

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.

RGK

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